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09/27/89 the People of the State of v. Leota L. Sevilla

September 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

LEOTA L. SEVILLA, APPELLEE



SUPREME COURT OF ILLINOIS

547 N.E.2d 117, 132 Ill. 2d 113, 138 Ill. Dec. 148 1989.IL.1498

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Robert V. Boharic, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

The defendant, Leota L. Sevilla, was indicted by a grand jury in Cook County for knowingly failing to file a retailers' occupation tax return for January 1985 where the amount due was $300 or more, and for knowingly failing to remit the concomitant tax payment. Each charge was brought pursuant to section 13 of the Retailers' Occupation Tax Act (Act) (Ill. Rev. Stat. 1985, ch. 120, par. 452). The indictment charged the defendant with knowingly failing to act, even though the statute did not indicate that the offense included a mental state element.

At trial, the defendant sought to raise a mistake of law defense, which she contends would have negated the existence of the mental state element (see Ill. Rev. Stat. 1985, ch. 38, par. 4-8(a)). The circuit court, holding that her mistake of law defense was not grounded in fact or law, did not allow the defendant the opportunity to introduce evidence in support of that defense. A jury found the defendant guilty of knowingly failing to file the return where the amount due was under $300, and for knowingly failing to remit the concomitant tax payment, both of which constituted the lesser included offenses of those charged in the indictment. As each offense fell under the same section of the Act, the circuit court entered judgment only on the offense of knowingly failing to file the return. After a sentencing hearing in which the parties introduced evidence in aggravation and mitigation, the circuit court sentenced the defendant to a 14-month term of imprisonment. The defendant appealed.

The appellate court reversed and remanded the cause for a new trial (174 Ill. App. 3d 1090). The appellate court held that the offense of failing to file a retailers' occupation tax return includes a mental state element. The appellate court further held, without discussing the merits of the mistake of law defense, that "[t]he defendant should have been provided with an opportunity to present evidence relating to knowledge and intent" (174 Ill. App. 3d at 1092-93). We granted the State's petition for leave to appeal (107 Ill. 2d R. 315).

At issue is whether the offense of failing to file a retailers' occupation tax return includes a mental state element. If so, it must be determined: (1) whether "knowledge" is the mental state element implied under the Act; and (2) whether the circuit court erred in denying the defendant the opportunity to introduce evidence in support of her mistake of law defense.

The following facts were adduced at the defendant's trial. The defendant was the sole proprietor of a retail business known as "Lee's Creative Designs." In January 1985, the defendant collected retailers' occupation taxes in an amount under $300. The defendant failed to file the monthly return and failed to remit the tax payment by February 28, 1985, the date the return and tax were due.

The State, in order to prove common motive, design and scheme, established that the defendant failed to file monthly returns and failed to remit tax payments between October 1984 and April 1985. The defendant admitted that she knew of her duty to file the monthly returns and knew that she failed to do so, but claimed that her business was suffering financial hardship during the period in dispute. The defendant also admitted that she knew she was subject to civil penalties, but claimed that she did not know she was also subject to criminal sanctions. I

The first issue to be addressed is whether the offense of failing to file a retailers' occupation tax return includes a mental state element. In People v. Player (1941), 377 Ill. 417, 422, the court, addressing the identical issue, held that the offense of failing to file a return did not include a mental state element. The State argues that Player is still controlling; therefore, the language in the indictment charging the defendant with "knowingly" failing to file the return was mere surplusage. The defendant argues that Player is no longer controlling because the legislature has made certain amendments to the Act which affect the holding of that case. We agree with the defendant.

The purpose of the Act is to levy a tax on the retailer for the privilege of operating a business in the State. (Reif v. Barrett (1933), 355 Ill. 104, 109.) Section 3 of the Act imposes a duty on the retailer to file a retailers' occupation tax return and to remit the tax payment. (Ill. Rev. Stat. 1985, ch. 120, par. 442.) To ensure compliance the Act contains a detailed registration and enforcement scheme. (See Ill. Rev. Stat. 1985, ch. 120, pars. 440 through 451.) Section 13 of the Act makes the failure to file a return, among other things, a criminal offense. (Ill. Rev. Stat. 1985, ch. 120, par. 452.) Section 13 provides in pertinent part:

"When the amount due is under $300, any person engaged in the business of selling tangible personal property at retail in this State who fails to file a return, or who files a fraudulent return, or any officer or agent of a corporation engaged in the business of selling tangible personal property at retail in this State who signs a fraudulent return filed on behalf of such corporation, or any accountant or other agent who knowingly enters false information on the return of any taxpayer under this Act, is guilty of a Class 4 felony." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 452.)

The section does not indicate whether mental state is an element of the offense of failing to file a return; the words "knowingly" and "fraudulent" as used in this section do not refer to the alleged violation.

Section 4--9 of the Criminal Code of 1961, which became effective January 1962, governs absolute liability. The section provides:

"A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 4-9.)

This section applies to all criminal penalty provisions, including those outside of the Criminal Code of 1961. People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 424.

As the failure to file a return under section 13 of the Act is not a misdemeanor offense, the underlying question is one of statutory interpretation: whether the section indicates a clear legislative purpose to impose absolute liability. Because the section does not expressly state whether absolute liability will or will not apply, we must look to sources beyond the statutory language to ascertain the intent of the legislature. We therefore consider "the reason and necessity for the law, ...


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