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12/06/88 the People of the State of v. Robert J. Parvin

December 6, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

ROBERT J. PARVIN, APPELLEE



SUPREME COURT OF ILLINOIS

533 N.E.2d 813, 125 Ill. 2d 519, 127 Ill. Dec. 731 1988.IL.1753

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Winnebago County, the Hon. David L. Smith, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant, Robert J. Parvin, was convicted in the circuit court of Winnebago County of failing to file monthly retailers' occupation tax returns in violation of section 13 of the Retailers' Occupation Tax Act (Act) (Ill. Rev. Stat. 1983, ch. 120, par. 452). During the relevant time period, section 13 provided that the failure to file such returns is a Class 4 felony. Defendant was sentenced to a 30-month term of probation, conditioned on the payment of $16,245 in restitution and performance of 100 hours of community service work.

The appellate court reversed, holding that corporate officers cannot be held criminally liable under the relevant portion of section 13 of the Act. Accordingly, the court ruled that the trial court erred in denying defendant's motion to dismiss the indictment. (164 Ill. App. 3d 29.) This result conflicts with the appellate court decision in People v. Johnson (1985), 131 Ill. App. 3d 803. We allowed the State's petition for leave to appeal (107 Ill. 2d R. 315(a)) in order to resolve this conflict, and now affirm the judgment of the appellate court. To the extent that Johnson is inconsistent with our holding herein, it is overruled.

The sole issue on appeal is whether defendant could be held criminally liable under the Act for failure to file corporate retailers' occupation tax returns.

At a bench trial the parties stipulated to the following facts. Between June 1983 and June 1984, defendant was the president and sole shareholder of Park Town Hall, Inc., a corporation which operated a restaurant and lounge called Park Town Hall. Park Town Hall engaged in the business of selling food and beverages at retail. Therefore Park Town Hall, Inc., was required to file monthly ROT returns under section 3 of the Act (Ill. Rev. Stat. 1983, ch. 120, par. 442). The corporation failed to do so between June 1983 and June 1984. It was in good standing during this time and possessed a valid ROT certificate of registration. Defendant operated the business and was the corporate officer solely responsible for filing the ROT returns of Park Town Hall, Inc. For each of the months in question, the amount of tax due was more than $300. The trial court found defendant guilty of 12 counts of violating section 13 of the Act.

The sixth paragraph of section 13 of the Act, under which defendant was convicted, provides in relevant part:

"When the amount due is $300 or more, any person engaged in the business of selling tangible personal property at retail in this State who fails to file a return . . . is guilty of a Class 4 felony." (Ill. Rev. Stat. 1983, ch. 120, par. 452.)

The appellate court found that defendant was not a "person engaged in the business of selling tangible personal property at retail in this State" and therefore he could not be held criminally liable. The court also rejected the State's contention that defendant could be held criminally liable by virtue of section 5- 5(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 5-5(a)), which makes individuals criminally liable for certain conduct performed on behalf of a corporation.

We begin our analysis by examining the structure of the Act. Section 2 of the Act (Ill. Rev. Stat. 1983, ch. 120, par. 441) imposes a tax "upon persons engaged in the business of selling tangible personal property at retail" in the amount of 5% of gross retail receipts. The Act requires such persons to file with the Department of Revenue monthly returns reporting the sales subject to the tax. (Ill. Rev. Stat. 1983, ch. 120, par. 442.) The Act makes it unlawful for any person to engage in the business of selling personal property at retail in Illinois without a certificate of registration from the Department of Revenue. Ill. Rev. Stat. 1983, ch. 120, par. 441a.

In section 1 of the Act, the definitional portion of the statute, "person" is defined to include a variety of entities, including a "natural individual." (Ill. Rev. Stat. 1983, ch. 120, par. 440.) Relying on this provision, the State argues that since defendant is a natural individual, he can be held liable for violating section 13. We find, ...


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