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12/12/97 PALUMBO BROS. v. RAYMOND T. WAGNER

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION


December 12, 1997

PALUMBO BROS., INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
RAYMOND T. WAGNER, JR., DIRECTOR OF THE ILLINOIS DEPARTMENT OF REVENUE, DEFENDANT-APPELLEE.

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EARL ARKISS, ALEXANDER P. WHITE, JUDGES PRESIDING.

Released for Publication January 22, 1998.

Presiding Justice Campbell delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Palumbo Bros, Inc. (Palumbo) appeals orders of the circuit court of Cook County dismissing a complaint Palumbo filed against defendant Raymond T. Wagner, the Director of the Illinois Department of Revenue (Director) to determine the enforceability of a tax obligation against Palumbo and denying Palumbo's motion to reconsider.

The record on appeal indicates the following facts. On April 7, 1995, Palumbo filed a complaint for declaratory judgment and other relief against the Director. Palumbo alleged that it was a member of a joint venture with a separate, independent Illinois corporation known as Benchmark Construction Company (Benchmark). The Illinois Department of Revenue (Department) assigned the joint venture an Illinois Business Tax (IBT) number that was different from Palumbo's IBT number.

The complaint alleged that on December 12, 1991, the Department issued a Notice of Tax Liability (1991 NTL) numbered "S F 199134385402012" to the joint venture under its own IBT number, proposing to assess $31,849 in use taxes, $3,185 as a penalty and $14,332 in interest, for a total of $49,366. The 1991 NTL, which was attached as an exhibit to the complaint, is addressed to Palumbo at 323 S Center Street in Hillside, Illinois. On June 15, 1992, the Department issued a Notice of Tax Liability (1992 NTL) numbered "S F 9213544903001" to the joint venture proposing to assess motor vehicle use taxes, with a penalty and interest totalling $262,158. The 1992 NTL, which was attached as an exhibit to the complaint, is addressed to "Palumbo Bros. Inc./Benchmark Const. Co." (Palumbo/Benchmark) at 323 S Center Street in Hillside, Illinois.

The complaint alleged that the Department never notified or instituted proceedings against Palumbo individually for these proposed assessments. On November 3, 1993, the Director caused a tax lien to be filed in favor of the Department upon all real and personal property owned or acquired "by the above named taxpayer." The Notices of Tax Lien, which are attached as exhibits to the complaint: refer to both Palumbo and Palumbo/Benchmark; state that they are based on the 1991 NTL and the 1992 NTL; and carry the joint venture's IBT number.

Palumbo sought a declaration that it had no obligation to the Department for the taxes, penalties and interest assessed against the joint venture. Palumbo also sought a declaration that the Department had no valid lien against Palumbo's individual assets, including, but not limited to a particular piece of real property located in South Barrington, Illinois. Palumbo also sought similar relief, including a declaration that the Department had no legal basis to enforce a tax lien against Palumbo by reason of a tax obligation of the joint venture.

On April 12, 1995, Palumbo filed an emergency motion for a temporary restraining order, alleging that the Department was attempting to serve a notice of levy on the Chicago Title Insurance Company, which was holding $169,000 in escrow that represented the net profit on the sale of the property Palumbo named in its complaint. The next day, the parties entered into an agreed preliminary injunction restraining the Director or his agents from levying on the property at issue until the order was vacated or modified by the court or altered by agreement of the parties.

The Director then filed a motion to dismiss Palumbo's complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (1996))(Code). The motion alleged that the Department learned of the joint venture during an audit of Palumbo performed at Palumbo's place of business, causing The Department to assign the joint venture an IBT number. The motion alleged that the 1991 NTL was issued as a result of the audit and that the 1991 NTL and the 1992 NTL were sent to Palumbo's place of business in accordance with statutory requirements.

The Director alleged that Palumbo failed to request a hearing on either NTL issued under the joint venture's IBT number and thus became final after 60 days. The Director asserted that Palumbo was given notice that comported with due process. The motion asked the court to dismiss the complaint for failure to state a claim and to allow the Department to collect the taxes administratively. The Director also attached his notarized sworn statement that he had full knowledge of the facts set forth in the motion and that the matters asserted therein were true.

Palumbo apparently filed a response to the motion to dismiss. However, the parties have failed to identify where this response appears in the record on appeal.

On July 5, 1995, the Department, through an Assistant Attorney General, filed a reply to "its motion to dismiss." Attached to the reply are two exhibits that purport to be domestic return receipts for certified mail. Exhibit A of the reply includes a photocopy of a receipt addressed to Palumbo at the Center Street address that purports to show delivery on December 20, 1991; the space designated as "Signature -- Agent" is signed by a Jim Romano. Exhibit B of the reply includes a photocopy of a receipt addressed to Palumbo/Benchmark at the Center Street address that purports to show delivery on June 18, 1992; the space designated as "Signature -- Agent" is again signed by a Jim Romano. The motion states that Jim Romano is "presumably a Palumbo agent *** ."

The record does not disclose the respective interests of Palumbo and Benchmark in the joint venture. The record does not disclose the identity of the joint venture's officers or directors. The record does not disclose the purpose of the joint venture. The record does not disclose the business or project to be carried on by the joint venture. The record does not disclose when the joint venture commenced or whether it has ceased operation. The record does not disclose any information relevant to Benchmark, aside from the allegation that it is an Illinois corporation. The record does not disclose whether the joint venture had any other address other than that of Palumbo's principal place of business. The 1992 NTL refers to the purchase or sale of a vehicle, aircraft, trailer or mobile home; otherwise, the record does not disclose the transactions that formed the grounds for the Department's assessment. The 1991 NTL states that it is based on an audit for November 1988; otherwise, the record does not disclose the time period for which the Department assessed taxes. The record does not disclose whether the joint venture ever registered or filed returns with the Department or paid any taxes.

On July 26, 1995, the trial court issued a memorandum and decision dismissing Palumbo's complaint. Palumbo filed a timely motion to reconsider; the Department filed a response. Palumbo filed a reply memorandum, in which Palumbo states that it first learned of the NTLs at issue on February 10, 1994, during a proceeding before the Department regarding unrelated matters. The trial court denied the motion to reconsider on October 25, 1995. Palumbo now appeals.

I

Palumbo maintains that the trial court erred in granting the Department's motion to dismiss, claiming that the Department failed to present affirmative matter defeating Palumbo's claim. The Director was granted involuntary dismissal under section 2-619 of the Code. In its reply to Palumbo's response, the Department specifically relied on Section 2-619(a)(9), which permits dismissal where "the claim asserted * * * is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (1996). A section 2-619(a)(9) motion to dismiss admits the legal sufficiency of the plaintiff's cause of action much in the same way that a section 2-615 motion to dismiss admits a complaint's well-pleaded facts. Kedzie and 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735, 189 Ill. Dec. 31 (1993). Conclusions of law, however, are not admitted. McKinnon v. City of Chicago, 243 Ill. App. 3d 87, 91, 612 N.E.2d 67, 69, 183 Ill. Dec. 810 (1993). The phrase "affirmative matter" encompasses any defense other than a negation of the essential allegations of the plaintiff's cause of action. Hodge, 156 Ill. 2d at 115, 619 N.E.2d at 735. The granting of a section 2-619 motion to dismiss is subject to de novo review on appeal. Hodge, 156 Ill. 2d at 116, 619 N.E.2d at 735.

II

In this case, Palumbo alleges that the Department violated Palumbo's right to due process in the tax proceeding regarding the joint venture of which Palumbo was a part. The guarantee of due process of law extends to every governmental proceeding which may interfere with personal or property rights, whether the process be legislative, judicial, administrative, or executive. People ex rel. Harris v. Parrish Oil Production, Inc., 249 Ill. App. 3d 664, 667, 622 N.E.2d 810, 814, 190 Ill. Dec. 780 (1993). Due process of law, at a minimum, prohibits the deprivation of property without providing notice and an opportunity for a hearing appropriate to the nature of the case. Harris, 249 Ill. App. 3d at 668, 622 N.E.2d at 814. The procedural safeguards mandated by due process in a particular case vary, depending upon:

"first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Governments' interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976).

This case involves a tax proceeding. We note that the United States Supreme Court has often held that a state may employ various financial sanctions and summary remedies to encourage timely payment of taxes prior to the resolution of any dispute over their validity. E.g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Florida, 496 U.S. 18, 37, 110 S. Ct. 2238, 2250-51, 110 L. Ed. 2d 17, 36 (1990). A tax proceeding generally has two phases: assessment and collection. People ex rel. Scott v. Pintozzi, 50 Ill. 2d 115, 126-27, 277 N.E.2d 844, 850-51 (1971). Palumbo claims that it was denied due process in both phases.

A

Regarding the assessments in this case, we note that Illinois law has allowed for the imposition of personal tax liability on corporate officers under certain circumstances. For example, our supreme court has stated that:

"Due process does not require that the defendants be given personal notice in the assessment phase apart from the notice that was given to their corporate entity before personal liability for the tax can be imposed upon them in a separate proceeding." Pintozzi, 50 Ill. 2d at 127, 277 N.E.2d at 851.

In Department of Revenue v. Semenek, 194 Ill. App. 3d 616, 619, 551 N.E.2d 314, 315-16, 141 Ill. Dec. 321 (1990), this court held that NTLs addressed to a dissolved corporation under the corporate registration number were sufficient to give the operators of the business notice of the assessment of liability. Indeed, in Semenek, this court was concerned that the defendants' interpretation of Illinois corporate law would enable taxpayers to undermine the detailed registration requirement and enforcement scheme of the Retailers' Occupation Tax Act by permitting taxpayers to shift tax liability to nonexistent or insolvent corporations. Semenek, 194 Ill. App. 3d at 619, 551 N.E.2d at 316.

This case does not involve the corporate form; it is undisputed here that Palumbo was a member of a joint venture, which is treated as a partnership subject to the Uniform Partnership Act. Japczyk v. Gust K. Newberg Construction Co., 224 Ill. App. 3d 325, 328-29, 586 N.E.2d 572, 574, 166 Ill. Dec. 614 (1991). Every partner is an agent of the partnership for the purpose of its business. 805 ILCS 205/9 (West 1996). Generally, notice to any partner of any partnership matter constitutes notice to all partners. 805 ILCS 205/12 (West 1996). Partners are also liable for the wrongful acts and omissions, penalties, misapplication of funds and all other debts and obligations of the partnership. See 805 ILCS 205/15 (West 1996).

In Cook v. Department of Revenue, 281 Ill. App. 3d 171, 177, 666 N.E.2d 893, 897, 217 Ill. Dec. 224 (1996), this court upheld a partner's due process claim *fn1, distinguishing Pintozzi on the ground that the corporations involved were the alter egos of individual defendants, who used the corporation to commit fraud. Palumbo's complaint conceals more than it reveals about the nature of the joint venture and its operation. Although there is no allegation of fraud in this case, it is undisputed that the Department first learned of the joint venture's existence during an audit of Palumbo and assigned an IBT number to the joint venture. It could be safely inferred from these undisputed facts that the joint venture did not register or file returns with the Department or pay taxes.

Moreover, regardless of Palumbo's intent in the matter, given that the joint venture is akin to a partnership, there was and is no corporate veil to pierce. Similar to Pintozzi, the plaintiff here does not allege that the joint venture did not receive adequate notice of the tax assessments at issue. Palumbo has alleged no facts that would prevent the imputation of that notice and knowledge of potential personal liability to Palumbo under Illinois partnership law.

The Cook court also distinguished Semenek on the basis that the individuals therein had assumed a personal obligation to collect and remit taxes by continuing the business after the dissolution of the corporation. See Cook, 281 Ill. App. 3d at 177, 666 N.E.2d at 897-98. However, as with the Cook opinion's treatment of Pintozzi, the distinctions went to the issue of whether liability could be imposed on the individual defendants, not the issue of whether the individual defendants were entitled to notice in an individual capacity. Furthermore, while the skeletal record in this case is silent on the questions of whether the joint venture still exists and, if so, whether it is solvent, we note that Palumbo's argument could open the door to the type of liability shifting described in Semenek. Thus, the basic thrust of Semenek seems applicable in the partnership context.

On the issue of notice, Cook relied upon People ex rel. Harris v. Parrish Oil Production, Inc., 249 Ill. App. 3d 664, 622 N.E.2d 810, 190 Ill. Dec. 780 (1993), in which this court invalidated tax sales resulting from a regulation that provided no notice to tenants in common owning undivided, fractional portions of a working interest in oil and gas leases. The Parrish Oil Production court rejected the argument that notice to the operator of a well was sufficient, because there was no proof that the operator was the agent of the owners, particularly for the purpose of payment of taxes. Parrish Oil Production, 249 Ill. App. 3d at 670, 622 N.E.2d at 816. These concerns are simply not present in the context of the liability of a joint venturer, for the reasons explained above.

In sum, given the nature of the partnership form and partnership liability, we conclude that Pintozzi and Semenek are persuasive authority on the issue of notice of the tax assessment. *fn2 Accordingly, regardless of whether the NTLs constitute notice to Palumbo individually, Palumbo was not denied due process in the assessment of the taxes in this case.

B

Nevertheless, Palumbo maintains that it was denied due process of law when the Department recorded a lien against not only property belonging to the joint venture, but also property belonging to Palumbo in an individual capacity. Palumbo notes that "the Pintozzis never claimed they were denied due process in the collection proceeding." Yet Palumbo also claims that there was no "collection proceeding" in this case, because the Department simply recorded a lien against Palumbo's property.

Of course, if there has been no collection proceeding, Palumbo cannot complain that it was denied due process in the proceeding. However, we note that a lien affords a supplemental and additional remedy for the collection of a debt. Gaskill v. Robert E. Sanders Disposal Hauling, 249 Ill. App. 3d 673, 676, 619 N.E.2d 235, 238, 188 Ill. Dec. 871 (1993). Thus, the recording of the lien may be characterized as a collection proceeding or as a part thereof. The ultimate question in this case is whether the Department denied Palumbo due process of law by recording a lien against Palumbo's property "without bothering to provide Palumbo with the opportunity to contest liability for the joint venture's debt."

In this case, the trial court ruled that Palumbo was individually notified at the assessment stage. The NTLs in this case were attached to Palumbo's complaint and control over any contrary allegation by Palumbo. The 1991 NTL was addressed to "Palumbo Bros., Inc." at Palumbo's address. The 1992 NTL was addressed to the joint venture, which includes "Palumbo Bros., Inc." in its own name, at the same address. The NTLs used the IBT number assigned to the joint venture. The Director's verified motion to dismiss establishes that the NTLs were sent in accordance with the statutory requirements.

The argument that a NTL that names Palumbo alone and is sent to Palumbo's principal place of business does not provide notice to Palumbo strains credulity. The claim that Palumbo was not notified by a NTL that names a joint venture which includes Palumbo in its title and is sent to Palumbo's principal place of business is only slightly more credible. Palumbo has made no argument and has alleged no facts that would show it could escape personal liability under partnership principles as a member of the joint venture in a collection proceeding.

Palumbo relies primarily on three cases to support its argument regarding the lien. First, Palumbo relies on Parrish Oil Production. However, that case held that a Department regulation was unconstitutional because it did not provide adequate notice to the property owners who were not partners of the assessment of certain taxes. In this case, notice to the joint venture is sufficient to the partners that they may be held personally liable for the tax debt in a collection proceeding.

Second, Palumbo cites Peterson v. Superior Bank FSB, 242 Ill. App. 3d 1090, 611 N.E.2d 1139, 183 Ill. Dec. 491 (1993), for the propositions that: (1) a judgment obtained against a partnership cannot be enforced against an individual partner that was not a party named in the underlying proceedings; and (2) an individual partner cannot be held vicariously liable for partnership debts. Peterson was not a tax case; rather, it was an attempt by a private plaintiff to bind a joint venture or co-venturers that were not parties to an arbitration proceeding to a judgment confirming an award against two of the venturers. The Peterson court noted that Illinois partnership law generally provides that a partner cannot submit a partnership claim or liability to arbitration. Peterson, 242 Ill. App. 3d at 1093, 611 N.E.2d at 1141; see 805 ILCS 205/9(3)(e) (West 1996). There is no such statutory bar regarding tax protests.

Furthermore, Peterson involved the enforceability of a judgment against two venturers as applied to a joint venture and co-venturers who were not parties to the underlying arbitration proceeding. In this case, the lien against Palumbo's property was not reduced to judgment. We note that the Cook opinion states that "a final assessment is a judgment or its procedural and substantive equivalent." Cook, 281 Ill. App. 3d at 178, 666 N.E.2d at 898. However, Cook cites no authority for this proposition. The Cook opinion cites section 3-101 of the Administrative Review Law for the proposition that an administrative decision is a judgment, but section 3-101 does not stand for this broad proposition. See 735 ILCS 5/3-101 (West 1996).

The plain text of section 5 of the Retailers' Occupation Tax Act states that the Department must submit a certified copy of a final assessment, along with other documents, to a circuit court to have judgment entered against a taxpayer. 35 ILCS 120/5 (West 1996). Moreover, an aggrieved person may seek a hearing on a final assessment "at any time before such assessment is reduced to judgment." 35 ILCS 120/5 (West 1996). Thus, it is clear that the statute does not equate a final assessment with a judgment.

Furthermore, a prior version of the collection provisions of the Retailers' Occupation Tax Act was declared unconstitutional as a violation of the separation of powers precisely because it attempted to confer the power to enter a judgment on the court clerk at the behest of the Department. People ex rel. Isaacs v. Johnson, 26 Ill. 2d 268, 186 N.E.2d 346 (1963). If a final assessment were the equivalent of a judgment, all of the Department's final assessments would be unconstitutional; to so hold would unconstitutionally impinge on the legislative function of taxation. Indeed, this is another reason why an administrative decision cannot generally be considered a judgment under section 3-101 of the Administrative Review Law, even though such a decision may affect the legal rights and duties of the parties.

Nor can a tax lien be considered a judgment. The Retailers' Occupation Tax Act allows aggrieved persons to seek a hearing from the Department at any time before the assessment is reduced to judgment, even though a tax lien may have attached. 35 ILCS 120/5, 5a (West 1996). The lien was not imposed by a court. As Palumbo is not attacking the enforcement of a judgment, Peterson is distinguishable from this case.

Finally, Palumbo cites the Cook opinion for the proposition that it was entitled to separate notice because it is deemed a separate "person" from the joint venture under the Retailers' Occupation Tax Act and the Use Tax Act. See Cook, 281 Ill. App. 3d at 176, 666 N.E.2d at 896-97. The Cook court concluded that "the partnership is an entity separate from the partners" because the tax statutes defined a partnership as a "person"; we note that the statutes similarly define a "joint adventure" as a "person." See Cook, 281 Ill. App. 3d at 176, 666 N.E.2d at 896-97; 35 ILCS 105/2, 120/1 (West 1996). The Cook court also based its conclusion on the fact that a partnership can own property. See Cook, 281 Ill. App. 3d at 176, 666 N.E.2d at 897.

The Cook opinion cites no authority for the proposition that every "person" must be considered a separate entity for all purposes. Although a partnership is treated as a separate entity for the purpose of owning property, it is not a separate legal entity. E.g., In re Marriage of Werries, 247 Ill. App. 3d 639, 645, 616 N.E.2d 1379, 1386, 186 Ill. Dec. 747 (1993). Palumbo has identified no provision of the Retailers' Occupation Tax Act or the Use Tax Act that expressly (or even impliedly) abrogates the personal liability imposed on partners for partnership debt by Illinois partnership law. Palumbo cites a number of provisions of the Illinois Code of Civil Procedure addressing the treatment of partners and partnerships in civil litigation. Aside from Cook, which likened a final assessment to a judgment, Palumbo cites no case law holding that the applicable tax statutes or due process require that partners and partnerships be treated identically to their treatment under the Illinois Code of Civil Procedure in the context of recording a tax lien.

Palumbo states that the Department "jumped the gun" by recording the lien. However, the record on appeal shows that the Department did not act with all deliberate speed to collect the assessments at issue. Moreover, prior to any attempt by the Department to reduce the lien to judgment or levy upon Palumbo's property, Palumbo filed its complaint for declaratory judgment, claiming a lack of due process in the assessment of the taxes. The general rule in Illinois is that questions regarding the propriety or regularity of an assessment are generally required to be raised before the Department and then, if necessary, before the circuit court by way of administrative review. See, e.g., Department of Revenue v. Downstate Coal Co., 11 Ill. 2d 317, 321-22, 143 N.E.2d 247, 250 (1957). *fn3 In tax cases, equity generally will not assume jurisdiction to grant relief where an adequate remedy at law exists. Schlenz v. Castle, 115 Ill. 2d 135, 141, 503 N.E.2d 241, 243, 104 Ill. Dec. 684 (1986). Furthermore, in all but extraordinary cases, tax relief is not afforded by way of declaratory judgment in cases which would not have merited relief by way of injunction. Schlenz, 115 Ill. 2d at 141, 503 N.E.2d at 242-43; Goodyear Tire & Rubber Co. v. Tierney, 411 Ill. 421, 430, 104 N.E.2d 222, 226 (1952).

In sum, given the facts and circumstances of this case, the trial court did not err in concluding that Palumbo was not denied due process of law in this matter.

For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY, J., and GALLAGHER, J., concur.


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