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06/24/87 the People Ex Rel. v. National Liquors Empire

June 24, 1987

THE PEOPLE EX REL. DEPARTMENT OF REVENUE, PLAINTIFF-APPELLEE

v.

NATIONAL LIQUORS EMPIRE, INC., ET AL., DEFENDANTS (LEROY TINTORI, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

510 N.E.2d 495, 157 Ill. App. 3d 434, 109 Ill. Dec. 627 1987.IL.881

Appeal from the Circuit Court of McLean County; the Hon. James A. Knecht, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. STOUDER and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

During the years 1972 through 1976, National Liquors Empire, Inc., and National Liquors Normal, Inc., were Illinois corporations engaged in the business of selling liquor at retail. The defendant, Leroy Tintori, was the president and principal shareholder of these corporations. After an audit of the corporations revealed a deficiency, the Illinois Department of Revenue (Department) issued final tax assessments against the corporations. When judicial review of the final assessments was not sought, the Department brought suit based on the final assessments for collection of the unpaid taxes under the Retailers' Occupation Tax Act (Act) (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.). Each complaint contained two counts. The first count sought recovery of the taxes from the respective corporations. The second count sought recovery from Mr. Tintori pursuant to section 13 1/2 of the Act, under which personal liability of a corporate officer can be imposed for wilful failure to pay such taxes. (Ill. Rev. Stat. 1979, ch. 120, par. 452 1/2) (current version at Ill. Rev. Stat. 1985, ch. 120, par. 452 1/2.) The instant appeal involves only those counts against Mr. Tintori.

In January 1985, the defendant filed a motion to dismiss the case as being barred by the time limitation imposed by an amended version of the Act and a motion to dismiss on the basis that the complaint against him failed to state a cause of action. The motions were denied. The Department then filed a motion for summary judgment. The motion was granted and this appeal follows.

The defendant first argues on appeal that the court erred in failing to dismiss the action as being barred by the time limitation imposed by an amended version of the Act. At the time the complaints were filed against the defendant, the Act read as follows:

"Sec. 13 1/2. Any officer or employee of any corporation subject to the provisions of this Act who has the control, supervision or responsibility of filing returns and making payment of the amount of tax herein imposed in accordance with Section 3 of this Act and who wilfully fails to file such a return or to make such payment to the Department shall be personally liable for such amounts, including interest and penalties thereon, in the event that after proper proceedings for the collection of such amounts, as provided in said Act, such corporation is unable to pay such amounts to the department; and the personal liability of such officer or employee as provided herein shall survive the dissolution of the corporation." (Ill. Rev. Stat. 1979, ch. 120, par. 452 1/2.)

As can be seen, there was no time limitation imposed on the Department for bringing suit when it did so against the defendant, but the following language was added and became effective on October 28, 1981:

"[However], upon the expiration of 2 years after the date all proceedings in court for the review of any final or revised final assessments which constitute the basis of such liability have terminated or the time for the taking thereof has expired without such proceedings being instituted or upon the expiration of 2 years after the date any return is filed with the Department in cases where the return constitutes the basis of such liability, no officer or employee of the subject corporation shall be liable (except for such liability already reduced to judgment against such officer or employee) for any outstanding liability previously incurred prior to dissolution." Ill. Rev. Stat. 1981, ch. 120, par. 452 1/2. (Current version at Ill. Rev. Stat. 1985, ch. 120, par. 452 1/2.)

The defendant maintains that the above amendment should apply retroactively to bar the instant suit. The defendant's argument must fail. Assuming arguendo that the application of the amendment would have barred the Department's suit, the general rule is that an amendment which relates only to remedies or procedure will be given retroactive application except where a procedural rule destroys a substantive right. (Hogan v. Bleeker (1963), 29 Ill. 2d 181.) Thus, an amendment shortening the limitation period will not be applied retroactively so as to terminate an action filed within the limitation period prior to the effective date of the amendment. (Burgdorff v. Siqueira (1982), 109 Ill. App. 3d 493.) When the Department filed suit against the defendant, the statute contained no limitation period, so the amendment was properly not applied retroactively to terminate the cause of action.

The defendant next argues that the trial court erred in denying his motion to dismiss the actions against him where the complaints allege Conclusions rather than facts, and therefore, fail to state a cause of action. The defendant points to count II, paragraph 4 of each complaint where it states that the defendant "wilfully failed to provide for the payment by or on behalf of the corporation of the taxes owed by it to the [Department]," in support of his argument.

The Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1-101 et seq.) provides that "[pleadings] shall be liberally construed with a view to doing substantial Justice between the parties." (Ill. Rev. Stat. 1985, ch. 110, par. 2-603(c).) It further provides that "[no] pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet." (Ill. Rev. Stat. 1985, ch. 110, par. 2-612(b).) Under the Code, the test for the sufficiency of the complaint is whether it informs the defendant of a valid claim under a general class of cases. (Gallina v. Dollens (1979), 75 Ill. App. 3d 174.) Though the complaint in the instant case was rather inartfully drawn, we believe that it adequately informed the defendant of the ...


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