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09/09/97 PEOPLE STATE ILLINOIS v. JOHN KERSHNER

September 9, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN KERSHNER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. Nos. 94--CF--1198, 94--CF--1199. Honorable Ronald B. Mehling, Judge, Presiding.

Released for Publication October 9, 1997.

The Honorable Justice Inglis delivered the opinion of the court. Geiger, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Defendant, John Kershner, appeals his conviction of 11 counts of failing to file a sales tax transaction reporting return (35 ILCS 120/13 (West 1994)) and of one count of filing a fraudulent sales tax return (35 ILCS 120/13 (West 1994)), contending that the Retailers' Occupation Tax Act (Act) (35 ILCS 120/1 (West 1994)) is unconstitutionally vague. We affirm.

On June 1, 1994, defendant was indicted on 13 counts of failing to file a sales tax transaction reporting return (No. 94--CF--1198) and on two counts of filing a fraudulent sales transaction reporting return (No. 94--CF--1199). Defendant waived his right to a jury trial, and the two cases were consolidated for a bench trial.

The following evidence was elicited at trial. At all relevant times, defendant was working for a retail dealership, known as Unlimited Automotive, which sold recreational vehicles. The parties stipulated that by the dates of the violations Unlimited Automotive had been involuntarily dissolved. The State presented extensive testimony concerning defendant's position and responsibilities with regard to the business.

Steven Ray Babbit, a mechanic at Unlimited Automotive, testified that defendant had hired him, paid him, ran the day-to-day operations of the business, and directed the employees. Babbit also testified that Father Everett Hiller, who may have been nominally the president of the business, came in only once a month for an oil change and never paid Babbit or directed his work. Babbit testified that Eric Anderson was hired as a salesman and that Anderson did not order Babbit's work. Babbit further testified that Jeff Marcos was hired as general manager and that he took orders from defendant. Babbit stated that, at the time of the sales tax violations, he was still employed by defendant and that defendant controlled the day-to-day operations, issuing orders to the other employees.

Eric Anderson testified that defendant hired him to be a mechanic and defendant paid his salary. Anderson confirmed that Marcos was employed as the general manager, but that he took orders from defendant and that defendant made the ultimate business decisions. Further, Anderson testified that defendant completed the paperwork for the business.

Vinnie Emrich testified that defendant hired him as a salesman. He reported to defendant. Emrich confirmed that Marcos, the general manager, also reported to defendant. Emrich testified that he was not responsible for filing sales tax returns and that defendant had once approached him to borrow $20,000 to use to pay sales taxes.

Investigator David Dellert of the Secretary of State's Police testified that he had received a number of complaints from customers who had not received titles to the vehicles they had purchased from Unlimited Automotive. Investigator Dellert spoke with defendant, issuing him written warnings on several occasions. In February 1992, Investigator Dellert obtained a box containing approximately 20 unprocessed deals from Jeff Marcos. He worked with the owners to obtain their titles.

Paul Cervanka, a special agent with the Illinois Department of Revenue, testified that a business tax number was issued to Unlimited Automotive. He testified that 99% of the sales tax checks received from Unlimited Automotive were signed by defendant.

Defendant did not testify in this matter. The trial court found defendant guilty of 11 counts of failing to file a sales tax transaction reporting return and of one count of filing a fraudulent sales tax return. The court sentenced defendant to 30 months of probation and to 6 months' periodic imprisonment concurrently on all charges. The court also ordered defendant to make restitution. Following the denial of his posttrial motion, defendant timely appealed.

Defendant contends that the Act is unconstitutionally vague as applied to him. The parties are in agreement that, due to the involuntary dissolution of Unlimited Automotive, defendant no longer was employed by a corporation but, rather, was engaged in a sole proprietorship. The Act provides, in pertinent part, that, "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, or who files a fraudulent return *** is guilty of a Class 3 felony." 35 ILCS 120/13 (West 1994). Defendant contends that the Act does not include sole proprietorship among its enumerations, and, therefore, it is unclear who in a sole proprietorship has the responsibility to file sales tax returns. Defendant asserts that any of the Unlimited Automotive employees could ...


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