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02/16/88 Adrienne Geary Et Al., v. Dominick's Finer Foods

February 16, 1988

OF OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES

v.

DOMINICK'S FINER FOODS, INC., ET AL., INDIV. AND AS REPRESENTATIVE DEFENDANTS, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

ADRIENNE GEARY et al., suing for themselves and on behalf

520 N.E.2d 968, 167 Ill. App. 3d 1, 117 Ill. Dec. 617 1988.IL.216

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

This class action arises out of the payment of various State and local taxes on the purchase of certain hygienic products. The named plaintiffs are three women who bought tampons and sanitary napkins from certain retailers in the City of Chicago and who paid the city's sales tax on those purchases. The defendants are four retailers: Dominick's, Jewel, Walgreen and K mart (retail defendants); the Illinois Department of Revenue and its director R. Thomas Johnson (State defendants); the City of Chicago and its director of revenue, Charles Sawyer (city defendants); and the Regional Transportation Authority .

Plaintiffs' first amended complaint alleged that the Illinois retailers' occupation tax and Illinois use tax had been illegally collected on the sale of tampons and sanitary napkins and asked for, most significantly, a permanent injunction and restitution. Plaintiffs also requested the same relief regarding allegedly illegal City of Chicago taxes, RTA taxes, and the municipal retailers' occupation tax.

The circuit court entered an order on February 24, 1985, wherein it: (1) struck the plaintiffs' claims for injunctive relief as to the Illinois retailers' occupation tax and Illinois use tax as moot since the State no longer categorized tampons and sanitary napkins as medical appliances, though the claim for restitution was not so struck; (2) struck all claims arising from purchases made more than five years before the complaint was filed based on the applicable five-year statute of limitations; (3) struck two counts which improperly combined causes of action based on the Chicago sales tax and the Chicago municipal retailers' occupation tax, although it allowed the plaintiffs to amend their complaint as to these counts; and (4) dismissed the allegations regarding the RTA tax. The court also held that the plaintiffs did not plead sufficient facts alleging that the defendants failed to disclose the imposition of the subject taxes, but that the allegation in the complaint that tampons and sanitary napkins are medical necessities of life was sufficient to constitute duress and thereby avoid the effect of the voluntary payment doctrine.

Thereafter the plaintiffs amended their complaint to plead properly as to the city taxes, and the court denied the motion of the city defendants to dismiss those counts. In separate orders entered September 2, 1986, the circuit court certified, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), the issue which was raised by both the retail defendants and the city defendants concerning whether the plaintiffs sufficiently pleaded duress in order to overcome the voluntary payment doctrine by asserting that tampons and sanitary napkins are necessities. The court also certified a question pertaining to the city defendants as to whether tampons and sanitary napkins are exempt from the Chicago sales tax as "medical appliances." The ensuing appeals of the retail defendants and the city defendants were consolidated for appeal by this court. The State defendants have indicated that they choose to rely on the retail defendants' brief, while the RTA is not a party to this appeal.

Opinion

Both the retail and city defendants contend that the plaintiffs have not complied with the voluntary payment doctrine; therefore, we must determine whether the plaintiffs have standing to challenge the imposition of the subject taxes. Our supreme court has depicted the essence of the voluntary payment doctrine as follows:

"As a general matter, taxes paid voluntarily, though erroneously, may not be recovered without statutory authorization. (Getto v. City of Chicago (1981), 86 Ill. 2d 39, 48; Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52, 59.) The rule is applicable to payments made to an intermediary (Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 343-44; Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52, 59-60) . . .." Freund v. Avis Rent-A-Car System, Inc. (1986), 114 Ill. 2d 73, 79, 499 N.E.2d 473.

The Chicago sales tax is levied on purchases of tangible personal property sold at retail within the city's limits. (Chicago Municipal Code, par. 200.6 -- 3 (1981).) The State of Illinois has both a use tax and a ...


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