PAMINDER S. PARMAR, Individually and as Executor of the Estate of Surinder K. Parmar, Plaintiff-Appellant,
LISA MADIGAN, as Attorney General of the State of Illinois, and MICHAEL FRERICHS, as Treasurer of the State of Illinois, Defendants-Appellees.
from the Circuit Court of Du Page County. No. 15-MR-1412
Honorable Bonnie M. Wheaton, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with
opinion. Justices Zenoff and Schostok concurred in the
judgment and opinion.
1 Plaintiff, Paminder S. Parmar, appeals the dismissal of his
lawsuit seeking a declaratory judgment concerning an
amendment to the Illinois Estate and Generation-Skipping
Transfer Tax Act (Estate Tax Act) (35 ILCS 405/1 et
seq. (West 2014)). We agree with plaintiff that the
trial court erred in dismissing his lawsuit as barred on
grounds of sovereign immunity. We disagree with defendants,
Attorney General Lisa Madigan and Treasurer Michael Frerichs,
that the voluntary-payment doctrine provides an alternative
ground for affirming the dismissal. Consequently, we reverse
the dismissal of the complaint and remand for further
2 I. BACKGROUND
3 Plaintiff's decedent, Dr. Surinder K. Parmar, passed
away on January 9, 2011. Due to interplay between federal and
Illinois law on taxation of estates, which we need not detail
here, Parmar's estate was not subject to Illinois estate
tax at the time of her death. In fact, since January 1, 2010,
there was effectively no Illinois estate tax. See 35 ILCS
405/2(b) (West 2010). Public Act 96-1496, which was
introduced as Senate Bill 2505 and became effective on
January 13, 2011, revived the Illinois estate tax by amending
section 2(b) of the Estate Tax Act (Pub. Act 96-1496 (eff.
Jan. 13, 2011) (amending 35 ILCS 405/2(b))). By its terms,
the amended section 2(b) applied retroactively to the estates
of persons dying after December 31, 2010. 35 ILCS 405/2(b)
(West 2014). This included Parmar's estate.
4 In October 2015, plaintiff, as executor of Parmar's
estate, filed his "Complaint for a Declaration of the
Constitutionality of the Retroactive Application of the New
Illinois Estate and Generation-Skipping Transfer Tax Act
under the Illinois Constitution and the United States
Constitution." In addition to Attorney General Madigan
and Treasurer Frerichs, plaintiff named Constance Beard,
Director of the Illinois Department of Revenue, and Governor
Bruce Rauner. Plaintiff identified Madigan as
"responsible for administering and enforcing [the Estate
Tax Act], " Frerichs as "responsible for receiving
and refunding monies collected pursuant to [the Estate Tax
Act], " Beard as "responsible for maximizing
collections of revenues for the State of Illinois in a manner
that promotes fair and consistent enforcement of state laws,
" and Rauner as "responsible for enforcing the laws
of the State of Illinois which includes [sic] the
[Estate Tax Act]." Plaintiff later voluntarily dismissed
Beard and Rauner from the lawsuit.
5 Plaintiff's complaint contained nine counts. Counts I
and IX alleged improprieties in the passage of Public Act
96-1496. Specifically, count I alleged that Senate Bill 2505
was not read by title on three different days in each
legislative house, in violation of the Illinois Constitution
(Ill. Const. 1970, art. IV, § 8). Count IX alleged that
one of the promoters of Senate Bill 2505 misrepresented its
substance on the floor of the House of Representatives.
Citing no authority, plaintiff alleged that the
legislator's misrepresentations invalidated the vote on
Senate Bill 2505.
6 Counts II through VII concerned the substance of the
amended section 2(b) of the Estate Tax Act. Count II alleged
that, under the interpretive dictates of the Statute on
Statutes (5 ILCS 70/0.01 et seq. (West 2014)) and
case law, the amended section 2(b) must be given prospective
effect only. Counts III through VII alleged that, if given
retroactive application, the amended section 2(b) would
violate the due process and takings clauses of the Illinois
and federal constitutions (U.S. Const., amends. V, XIV; Ill.
Const. 1970, art. I, §§ 2, 15) and the ex post
facto clause of the Illinois Constitution (Ill. Const.
1970, art. I, § 16).
7 Finally, count VIII alleged that, since the amended section
2(b) could not lawfully be applied retroactively, all
administrative rules issued by Attorney General Madigan that
assumed the permissibility of retroactive application were
invalid and ineffective.
8 Plaintiff alleged that he incurred "penalties and
interest" on the tax he purportedly owed on Parmar's
estate. Plaintiff paid the tax, penalties, and interest
"[u]nder duress in order to avoid additional penalties
and interest." As relief, plaintiff sought both a
declaratory judgment as to the lawful scope of the amended
section 2(b) and a refund of amounts paid.
9 Defendants filed a joint motion to dismiss pursuant to
section 2-619.1 of the Code of Civil Procedure (Code) (735
ILCS 5/2-619.1 (West 2014)), which permits a party to combine
a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West
2014)) with a section 2-619 motion to dismiss (735 ILCS
5/2-619 (West 2014)). For their section 2-619 motion to
dismiss, defendants raised two affirmative defenses. See
id. (providing for involuntary dismissal based upon
"certain defects or defenses"). First, they
asserted that section 1 of the State Lawsuit Immunity Act
(Immunity Act) (745 ILCS 5/1 (West 2014)) barred the
proceeding in circuit court, leaving plaintiff with recourse
only in the Court of Claims. Second, they claimed that the
suit was barred under the voluntary-payment doctrine because,
without duress, plaintiff had already paid the estate tax as
well as statutory interest.
10 To support the voluntary-payment defense, defendants
submitted an affidavit from John Flores, an assistant
Attorney General with the Revenue Litigation Bureau. Flores
averred that, in September and October 2012, plaintiff paid
the State a total of $559, 973 in tax on the Parmar estate.
Also in October 2012, plaintiff filed an estate tax return,
acknowledging liability for $397, 144 in tax, $99, 286 in
late filing penalties, $23, 829 in late payment penalties,
and $39, 714 in interest (a total of $559, 973). Flores noted
that plaintiff paid these amounts before the Attorney General
had opened a file on Parmar's estate, had asserted any
liability, or had made any payment demands. According to
Flores, plaintiff later applied for and received a waiver of
penalties. After further adjustments, plaintiff was
calculated to owe $388, 068 in tax and $35, 357 in interest.
Flores supported his averments with attached documentation,
including an estate tax return filed by plaintiff. The return
reported the gross value of Parmar's estate at $5
11 In addition to stating these two affirmative defenses,
defendants claimed that several counts in plaintiff's
complaint failed to state a claim upon which relief could be
12 In his response, plaintiff claimed that the legislature
clearly waived sovereign immunity for lawsuits like the
present one by enacting section 15(a) of the Estate Tax Act,
which authorizes a circuit court "to hear and determine
all disputes in ...