APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
516 N.E.2d 973, 163 Ill. App. 3d 269, 114 Ill. Dec. 818 1987.IL.1771
Appeal from the Circuit Court of Madison County; the Hon. Nicholas G. Byron, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. KARNS, P.J., and HARRISON, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
The instant appeal involves the issue of whether a taxpayer may seek administrative review of a final tax assessment after applying for and obtaining amnesty for such taxes under the Illinois Tax Delinquency Amnesty Act (Pub. Act 83 -- 1428, eff. Oct. 1, 1984) (hereinafter the Amnesty Act).
In February 1983 the plaintiff, Wanda Schmidt, d/b/a Le Don's (taxpayer), received a notice of tax liability from the defendant, Illinois Department of Revenue (Department), with regard to retailers' occupation taxes allegedly owed by the taxpayer for the years 1975 through 1981. The taxpayer paid the taxes owed under protest and sought a hearing under section 4 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 443). Following hearing on the taxpayer's protest in February, March and August 1984 and a reaudit of the taxpayer's records, a final assessment was issued on April 10, 1985. On May 14, 1985, the taxpayer filed this action for administrative review of the Department's decision and final assessment (see Ill. Rev. Stat. 1983, ch. 120, par. 451).
In September 1984, while the taxpayer's protest proceeding was pending and prior to final assessment, the legislature enacted the Amnesty Act, which was effective from October 1, 1984, through November 30, 1984. The Act provided that upon application and payment of all taxes due from a taxpayer plus 50% of the interest due, the Department would grant amnesty for the taxes owed and would not seek to collect any other interest or penalties that might be applicable.
In November 1984 the taxpayer filed an application for amnesty with regard to the taxes that were due pursuant to the notice of tax liability, based upon the amount determined by the reaudit. The taxpayer requested that the amount paid under protest to the Department in February 1983 be applied to the amount due under the amnesty application, with the excess to be applied to the interest required under the amnesty provisions. On April 21, 1986, upon review of the taxpayer's amnesty application and payment by the taxpayer of the remaining interest required under the amnesty provisions, the Department granted the taxpayer's application for amnesty with regard to the taxes that were then in issue upon the taxpayer's complaint for administrative review, which had been filed on May 14, 1985.
Following the Department's approval of the taxpayer's amnesty application, the Department filed a motion to dismiss the complaint for administrative review, contending that the taxpayer's application for amnesty for the taxes in question served as an election of remedies and precluded continuing litigation for review of these tax liabilities. The trial court found that
"through the voluntary act of paying taxes under the Amnesty Act, the [taxpayer] has chosen to accept the amount determined by the [Department] pursuant to the . . . Retailers' Occupation Tax Act as the debt owed to the State by the [taxpayer] rather than contesting the amount. The [taxpayer] has made a binding election of remedies by deciding to take advantage of the Amnesty Act's provisions."
The court, accordingly, granted the Department's motion to dismiss the taxpayer's complaint for administrative review.
On appeal from the court's order of dismissal, the taxpayer asserts that the trial court erred in finding that the Amnesty Act precluded her from pursuing the remedies provided by the Retailers' Occupation Tax Act for challenging amounts found to be due by the Department. The taxpayer maintains that in the absence of an express statutory prohibition, the Amnesty Act and the regulations promulgated pursuant to that Act should not be construed so broadly as to restrict or negate a taxpayer's right under the Retailers' Occupation Tax Act to seek review of the Department's determination following protest and hearing and notice of final assessment (see Ill. Rev. Stat. 1983, ch. 120, pars. 443, 444, 451) or a claim for credit or refund (see Ill. Rev. Stat. 1983, ch. 120, pars. 445, 451). The taxpayer contends, rather, that she should have been allowed "to avail herself of the opportunity to reduce the potential, maximum exposure regarding all of the proposed taxes, penalties and interest" under the Amnesty Act, without forfeiting her right to contest the amounts due as provided by the Retailers' Occupation Tax Act.
The Amnesty Act, authorizing establishment of an amnesty program from October through November 1984, ...