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In Re Application of the County Collector

May 24, 2011

IN RE APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 2004 AND PETITION OF DENNIS D. BALLINGER FOR A TAX DEED.


Appeal from the Circuit Court of the 9th Judicial Circuit Hancock County, Illinois, No. 08 TX 6 The Honorable David F. Stoverink, Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE

JUSTICE McDADE delivered the judgment of the court, with opinion.

Presiding Justice Carter and Justice O'Brien concurred in the judgment and opinion.

OPINION

FACTS

Defendant, Pettit Land, L.L.C., is the owner of a piece of real property, consisting mainly of farmland (the farmland), located in the county. The farmland bears the tax parcel identification number 09-06-000-062 (PIN 09-06-000-062).

On February 7, 1985, defendant entered into a lease agreement with Waterway Communications System, Inc.*fn1 (Waterway), for a parcel of real property (the leased parcel) located on the farmland. The term of the lease was for 25 years with an option for Waterway to extend the lease an additional 25 years. The lease was recorded in the county recorder's office. While the record is unclear as to the exact date, Waterway, at some point after entering into the lease agreement with defendant, constructed a cellular/radio tower (the tower) on the leased parcel.

On November 5, 1986, a "First Amendment to Lease Agreement" was entered between the parties and recorded in the county recorder's office. The amendment provided that Waterway will pay "ad valorem taxes levied and attributable to any improvements and facilities installed on the premises by [Waterway]."

Sometime prior to December 1, 2002, the county assessor assigned the tower its own separate tax identification number, 09-06-000-060 (PIN 09-06-000-060). The property record for PIN 09-06-000-060 contains the legal description of the improvements on the leased parcel and the tower assessments. The record does not contain any land assessment. Dale Bolton, who is the current county assessor and has been since December 1, 2002, testified that he does not know why the tower and the farmland were assigned two different tax parcel identification numbers. All tax bills for the tower, however, were sent to Waterway. The bills subsequently became delinquent and the tower was sold to plaintiff, Dennis Ballinger, at a tax sale.

It is undisputed that defendant paid all taxes assessed and levied on PIN 09-06-000-062 --the farmland, which includes the leased parcel. Those taxes were never delinquent. Defendant testified, however, that it never received a tax bill for the tower or had any knowledge that the taxes were delinquent and subject to a tax sale.

At the tax sale, plaintiff purchased "Tax Sale Certificate No. 040076" (the tax certificate)

The tax certificate states the legal description of the property as: "09-06-000-060: IMPROVEMENTS ON TOWER SITE; PART E 1/2 NE PILOT GROVE 6-6."

On June 19, 2008, plaintiff filed a petition for tax deed. The petition sought a tax deed for not only the tower, but also the leased parcel on which the tower was located. A "Take Notice" was personally served on defendant. Defendant subsequently filed a "Motion to Deny Issuance of Tax Deed, or in the alternative, Clarification of what Tax Buyer will receive." The motion alleged that plaintiff should only receive, if he obtains a tax deed, the tower, and not the leased parcel. The motion also alleged that defendant had paid all the property taxes on the farmland, which includes the leased parcel, but admitted that it did not pay the taxes on the improvements located on the leased parcel.

Plaintiff filed a motion to dismiss defendant's motion for clarification. Plaintiff alleged that his tax sale certificate entitled him to both the tower and the leased parcel. Plaintiff argued that Illinois law does not allow personal property taxes to be imposed or assessed on personal property. Specifically, plaintiff contended that if he is only allowed to obtain the tower, and not the ...


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