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Raymond Perkins, Jr., As Executor of the Estate v. Patrick J. Quinn

July 23, 2012

RAYMOND PERKINS, JR., AS EXECUTOR OF THE ESTATE
HERBERT J. PERKINS,
PLAINTIFF-APPELLANT,
v.
PATRICK J. QUINN, GOVERNOR OF THE STATE OF ILLINOIS; DAN RUTHERFORD, TREASURER OF THE STATE OF ILLINOIS;
AND JUDY BARR TOPINKA, COMPTROLLER OF THE STATE OF ILLINOIS,
DEFENDANTS-APPELLEES.



Appeal from the of Circuit Court of Cook County No. 06 P 6904 Honorable Susan M. Coleman, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

JUSTICE KARNEZIS delivered the judgment of the court, with opinion. Justices Hall and Rochford concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Raymond Perkins, Jr., as executor of the estate of Herbert J. Perkins, filed a complaint for issuance of a writ of mandamus against defendants Patrick J. Quinn, Dan Rutherford and Judy Barr Topinka, in their official capacities as Governor, Treasurer and Comptroller of the State of Illinois, respectively. Plaintiff alleged defendants were improperly withholding $111,870 he had overpaid in Illinois estate tax. He sought to compel defendants to refund his overpayment and pay 10% interest on the refund. The circuit court dismissed plaintiff's motion with prejudice. On appeal, plaintiff argues the court erred in dismissing his complaint because (1) his deposit of monies with the Treasurer to pay estate tax per the directive of the Illinois Attorney General was impressed with a trust of which the Treasurer was the constructive trustee; (2) mandamus is the appropriate remedy to require an officeholder to perform duties imposed on that office by law; (3) plaintiff does not have an adequate remedy at law; and (4) he is entitled to interest on the monies the Treasurer had refused to return. We affirm.

¶ 2 Background

¶ 3 Herbert Perkins died in 2006. In June 2007, as executor of Perkins' estate, plaintiff filed a 2006 Illinois estate tax and generation-skipping tax return form showing $973,636 due in estate tax. He paid the tax by depositing $973,636 with the office of the Cook County treasurer as required by section 6(e) of the Illinois Estate and Generation-Skipping Transfer Tax Act (the Act) (35 ILCS 405/6(e) (West 2010)). Plaintiff's attorneys had obtained the $976,636 tax figure from the Illinois Attorney General's office pursuant to the directions on the tax return form, which stated:

"The Attorney General's office has acquired a computer program that will make the computation [of Illinois estate tax], rather than the preparer performing numerous trials to obtain a figure. The preparer may contact our Office by mail or phone *** or may access the program at our website."*fn1

¶ 4 A few days after plaintiff paid the tax, the Attorney General's office issued plaintiff a certificate of discharge and determination of tax showing the actual amount of tax due was $846,652. Plaintiff had paid $126,984 more in tax than was due.

¶ 5 Pursuant to section 14 of the Act, if the tax paid is more than the amount due under the Act, "the State Treasurer shall refund the excess to the person entitled to the refund." 35 ILCS 405/14 (West 2010). In March 2010, plaintiff filed a petition for refund of the $126,984 overpayment.

¶ 6 In June 2010, following revaluation of the estate, plaintiff submitted an amended estate tax return showing that the estate tax due was actually $861,776 ($15,114 more than the tax amount stated in the Attorney General's certificate of discharge) and his overpayment of $111,870 (rather than $126,984). Plaintiff filed an amended petition for refund of the $111,870. The Attorney General issued a supplemental certificate of discharge showing that plaintiff owed an additional $15,114 in tax and had paid that amount.

¶ 7 In February 2011, plaintiff filed a mandamus complaint against the Illinois Governor, Treasurer and Comptroller because he had not received the $111,870 refund of his overpayment. He alleged his attorneys had relied on the Attorney General's calculations in preparing the estate's tax return and, as a result, he had submitted a tax overpayment; he was due $111,870 for his overpayment; the $111,870 was being wrongfully withheld from him by the Treasurer, either singly or in concert with one or both of the other defendants; defendants were holding the $111,870 in trust for him; and he was entitled to both refund of the $111,870 and 10% interest thereon. Plaintiff sought a mandamus order compelling defendants to refund him the $111,870 overpayment plus 10% annual interest.

¶ 8 Defendants filed a motion to dismiss the complaint pursuant to sections 2-619(a)(1) and (a)(9) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(1), (9) (West 2010)). They stated the Treasurer at no time denied plaintiff's petition for refund or disputed the amount of the refund; the Treasurer had approved a partial refund of $32,380.92; the Treasurer intended to refund the total amount of the overpayment to plaintiff "as soon as possible"; "due to lack of sufficient appropriations for estate tax refunds, the Treasurer's Office cannot pay off existing estate tax refund obligations [such as plaintiff's] in a single payment"; "[i]nstead, the Treasurer now pays portions of the refunds due for approved refund requests, with the process resulting in complete payment, but just not in a single check"; and, although the Act entitled plaintiff to a refund of his tax overpayment, the Act did not mandate the time and manner in which the Treasurer was to pay the refund. Defendants argued plaintiff's complaint should be dismissed because he had an adequate remedy at law; equitable relief is barred in tax relief cases; and neither statute nor case law allows the Treasurer to pay interest on an estate tax overpayment.

¶ 9 Defendants submitted a supporting affidavit from Maureen Lydon, the general counsel of the Treasurer's office. Lydon explained the Treasurer had made partial payment because the appropriations were insufficient to allow for full refund. She stated there was over $23 million due in estate tax refunds in 2010 and almost $6 million in 2011; there were "several" estates due refunds which had been waiting longer than plaintiff for a refund; and the Treasurer sought and continued to seek supplemental appropriations to address the issue.

¶ 10 In April 2011, the Treasurer paid plaintiff $32,380.92 toward the tax refund. The balance still to be paid to plaintiff is $79,489.08.

ΒΆ 11 On October 7, 2011, the court granted defendants' motion and dismissed the complaint with prejudice. It held that it did not have the authority to compel the performance of an act that the Treasurer had already undertaken to perform. It stated a writ of mandamus would issue if the Treasurer was refusing to perform its duties but the Treasurer was not refusing to perform its duties. Rather, the Treasurer had agreed and wanted to perform its duties but was unable to due to the lack of appropriations. The court held that the Act did not require a lump-sum payment of an ...


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