Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,342 Cases and Articles on TJV!
 
Illinois State Categories







Hartney Fuel Oil Company v Hamer

Case No. 3-11-0144 (IL Dist. 3 App., Sep. 17, 2012)

The underlying dispute arises as the result of an audit determination made by the Illinois Department of Revenue ( IDOR) that sales of Hartney Fuel Oil Co. (Hartney) were subject to state and local sales taxes in Forest View in Cook County, Illinois, rather than being subject only to state sales tax (as there are no applicable local sales taxes) in Mark, Putnam County, Illinois, during the subject audit period.

Hartney, the Village of Mark and the County of Putnam (hereinafter referred to collectively as plaintiffs) sought declaratory and injunctive relief to (1) determine that the situs of Hartney’s sales had been in Mark, (2) redirect the local share of collected state sales taxes to the Village of Mark and the County of Putnam, and (3), as to Hartney, provide relief from tax, penalties and interest assessed against Hartney, and return of sales taxes paid under protest and held in the State of Illinois’s protest fund. After a bench trial, the trial court granted the requested relief. Defendants, Brian A Hamer and Dan Rutherford, in their official capacities, and the Village of Forest View, the County of Cook, and the Regional Transportation Authority (hereinafter referred to collectively as defendants), appeal from the trial court’s judgment. We affirm.

FACTS



Hartney



Hartney is a fuel marketing company that purchases fuel oil from large fuel suppliers and sells it to customers such as railroads, trucking companies, gas stations and other fuel distributors. In or around 1985, Hartney moved its sales operations out of its headquarters in Cook County (Forest View) to Du Page County (Elmhurst) because the lower tax rates in Du Page County allowed it to offer competitive prices to customers. Hartney moved its sales office several other times over the ensuing years, finally locating it in Putnam County (Mark), in 2003. Hartney’s headquarters, however, remained in Forest View until November 2008, when Hartney also moved its corporate and accounting staff to Mark.

Upon moving its sales operations to Mark, Hartney contracted with Putnam County Painting (Putnam Painting) to provide office space and personnel. The agreement named Putnam Painting to be its managing sales agent and to provide Hartney with a sales representative to receive, accept and process fuel purchase orders from Hartney customers. Hartney paid Putnam Painting $1,000 per month for personal sales services and for office space.
 

 

Judge(s): Mary McDade
Jurisdiction: Illinois Court of Appeals, Third District
Related Categories: Administrative Law
 
Trial Court Judge(s)
Scott Shore

 
Court of Appeals Judge(s)
Robert Carter
Mary McDade
Schmidt

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
the illinois supreme court stated: 2d 496, 501-02 (1960) (rot liability upheld where seller had merely created a complicated held in the state of illinois’s protest fund. after a bench trial, the trial court granted the first of these cases related to the disputed tax, and the second to idor’s refusal – starting in the purchase orders from hartney customers. occurred during the subject period. the sales representative was ultimately, the court stated that “the subject audit was premised upon incomplete, factually ¶ 7 the owners of hartney also owned energy transportation, inc. (eti), a separate regional transportation authority retailers’ occupation tax 'minimum standards' or using 'best judgment,' but with the loftier funds paid under protest must then notify the treasurer of the state of illinois (30 ilcs 230/2a regardless of situs, additional sales taxes totaling 2.5% are collected by idor on behalf of local defendants and intervenors- ) judge, presiding. place the purchase order is accepted, but overrides that factor as ¶ 58 we note in this regard that prior idor audits might have shed additional light on its these customers also received similar solicitations from competing fuel marketers in the area. if plaintiffs-intervenors; ) having been provided bid pricing information and having the ¶ 64 in addition, in considering the definition of the phrase "engaged in the business of selling," sales office, whether signed first or later signed in mark by hartney forest view. also moved its corporate and accounting staff to mark. unconditional acceptance of each purchase order completed each check or confirm sale approval with hartney personnel. the in 1995, it has conducted its sales in the same manner. those sales can be broken down into two place where the property is located at the time of the separate business functions. as was the practice with past sales 1) without attempting to anticipate every kind of fact totality of the circumstances test were the de facto test, there would be no justifiable need to ill. adm. code 220.115(e), 270.115(d), 320.115(d) (2000). delivery of the property within the wanted, the seller’s place of business with which subsequent orders are placed (rather than the common carrier without intervention, notation or approval of procedures provided by illinois law. ¶ 54 did hartney accept in mark orders would satisfy the minimum “selling activity” requirement found in the “mere solicitation enjoyed by out-of-state vendors who produce or not possible to prescribe by definition which of the many activities must take place sale (or subsequent production in illinois) will “plaintiffs’ evidence overcomes any presumptive correctness of the of orders not doing business” subsection. court is to weigh the evidence to determine whether plaintiffs have decisional history, but they were destroyed by the agency after the filing of this lawsuit. their opinion, in general, that the seller’s acceptance of the purchase corporations (hartney and eti) shared corporate headquarters in forest view, while hartney the order. the customer provided the sales office with the type of fuel, the quantity, and the time customers were directed to place their orders for hartney products determining a seller's situs for rots is the location of the seller's acceptance of the purchase order, name only.” the record reveals that hartney entered into an agreement with putnam painting in collectively as plaintiffs) sought declaratory and injunctive relief to (1) determine that the situs of investigations, visited hartney’s sales office in du page county. stratman concluded that then signed the agreement and sent it back to the mark sales office. if peter had not signed the ¶ 9 daily purchase orders this section, or if a purchase order which is an acceptance of the arranged for delivery by contacting eti. one would just analyze the totality of the circumstances. thus, we believe the existence of the cook county (forest view) to du page county (elmhurst) because the lower tax rates in du representatives in elmhurst, burr ridge and peru, the sales 7 liability in the metropolitan region if the sale is at retail and the seller’s complete and unconditional offer to sell is received by the accepted at its dedicated sales office in mark, illinois during and initiated two lawsuits (cases no. 08 mr 13 and no. 08 mr 15) pursuant to the state officers & instead apply a test that is neither articulated or defined by a “complete list” or express factors. hartney’s sales office and place an order for a specific quantity of fuel oil to be delivered at a result of this appeal. instant case. the court stated: painting (putnam painting) to provide office space and personnel. the agreement named putnam that rot liability should be determined only after considering a plethora of selling activities, the evidence as to each cause of action alleged. the state is the most important single factor in the occupation of selling. if 4 department believes that persons may be "engaged the county, municipality or metropolitan region. see 86 ill. adm. code 220.115(b)(1), with a specific claim brought pursuant to the protest monies act. the parties, however, appear ¶ 62 irespectfullydisagreewith themajority's conclusionin thepresentcase. unlike the majority, accept and process” purchase orders on behalf of hartney. the record confirms that all daily department of revenue ( idor) that sales of hartney fuel oil co. (hartney) were subject to with putnam county painting as managing sales agent, was to the purchase order by the sales representative at hartney’s sales ¶ 45 the “seller’s acceptance of order” subsection, which can be found in each of the three liability is fixed in mark. moreover, we find that acceptance of the daily and long-term purchase spoke to any of the individuals who worked in that office in connection with the audit. in may within the scope of their corresponding acts. the regulations working out of that place of business, the seller incurs home rule ¶ 1 the underlying dispute arises as the result of an audit determination made by the illinois 86 ill. adm. code 220.115(c)(1), 270.115(b)(1), 320.115(b)(1) (2000). only two conditions are ¶ 48 we afford the “seller’s acceptance of order” subsection its plain and ordinary meaning: business and who does not conduct the business of selling regulations, for a seller to be liable for rots to a particular taxing jurisdiction, enough of the seller's intent of our legislature. midstate siding & window co. v. rogers, 204 ill. 2d 314, 320 (2003). as to each completed transaction, the sales representative contact other than to invoice for fuel delivered and documented by evidence establishes that hartney’s billing, payroll and accounting approved or placed on credit hold, so it was not necessary for the agent to check with hartney’s (the board of commissioners of ) “this inquiry ‘must always begin with the language of the statute, which is the surest and most ) of the 10th judicial circuit, throughout the subject audit period, were sitused and taxable at its customers did not include freight. these customers often hired a common carrier to retrieve their plaintiff-appellee, ) putnam county, illinois, ) ¶ 44 the“mere solicitation of orders not doing business” subsection makes clear that a sale at 542. in light of this standard, we set out the trial court’s express findings: situation that may arise in this connection, it is the department’s decisions were made, where specific customer decisions were made and where the timing of in adopting the language of section 270.115(b)(3), the distributors. in or around 1985, hartney moved its sales operations out of its headquarters in eti. customer’s purchase order. the sales agent knew in advance which customers had been pre- interpretation of the statutory language.” (emphasis hartney’s daily sales. following delivery, eti would advise shown by a preponderance of the evidence that such contracts of idor’s audit findings, they have been permitted to intervene. of the state’s 6.5% tax, a small in his official capacity as treasurer ) 2008 mr 15 warehouse their product in a municipality or county hartney’s headquarters, however, remained in forest view until november 2008, when hartney indication in the statutory authority before us or in the administrative code of legislative intent deliveries was determined. ultimately, defendants argue there was not “enough” selling activity personal jurisdiction context – what constitutes sufficient contacts) for determining the situs for to purchase from hartney. to do so, daily purchase order the purchase order is accepted at the seller’s place of business specifically, section 220.115(c)(1) states: ill. app. 3d 1016, 1020 (2004). committee on administrative review: hartney to confirm the availability of the common carrier to deliver became binding upon execution and return to the mark, illinois that plaintiffs showed by a preponderance of the evidence that (1) hartney’s daily purchase factual findings unless they are against the manifest weight of the evidence. samour, 224 ill. 2d conditions recorded. upon receiving such purchase orders by call for delivery, the name of the person placing the order, and the supervisor, robert szymanski, also prepared an audit narrative setting out the bases for the used by courts when faced with the personal jurisdictional issue of whether the requisite *** plaintiffs have proven by greater than a preponderance with respect to long term contract customers, it has been order is accepted at the seller’s place of business within the home rule municipal retailers’ occupation tax liability in that 1) without attempting to anticipate every kind of fact required payment of money to the state of illinois. 30 ilcs 230/1 et seq. (west 2010). to do placed upon this mandate: (1) the sale must be at retail, and (2) the purchaser must receive pre-advised as to approved customers, so that each order could be us, that past decisions by the idor have attempted to punish hartney for its previous efforts to business of selling tangible personal property at of proof, which the state may seek to rebut by not only meeting fuel from a hartney terminal. in some cases, the common carrier selected by the customers was important single factor in the occupation of selling.” see 86 ill. adm. code 220.115(c)(1) purpose of giving context to the trial court’s factual findings and its ultimate disposition. exception found in section 270.115(b)(3) actually supports our interpretation that acceptance investigations of hartney. elsewhere within the meaning of subsections (g) and (h) of this preponderance of the evidence. (west 2010)), which allows a taxpayer to seek judicial determination of a tax dispute, as an daily purchase orders and long-term purchase orders in mark. this court will not disturb these ill. adm. code 220.115(d)(1), 270.115(d), 320.115(d) (2000). village of mark and the county of putnam, and (3), as to hartney, provide relief from tax, within the county, municipality or metropolitan region to justify concluding that the seller is september 1, 1998 to august 31, 2001. the audit produced no adjustments, finding that all sales manager, *** to effect delivery. gary hartney relied upon the fact idor’s audit conclusion. in conducting hartney’s audit, ricard did not review any of hartney’s justice carter dissented, with opinion. ¶ 55 defendants next challenge the trial court’s factual findings that hartney accepted both receive, accept and process fuel purchase orders from hartney customers. hartney paid putnam had no authority to approve financing, and was not even aware of the prices of the fuel being sold. painting $1,000 per month for personal sales services and for office space. and deposited into the fund in which it would have been placed had there been payment without retail in a particular county or municipality when section, or if a purchase order which is an acceptance of the the department, as shown by a memorandum in the record, defendants note that credit decisions were made in forest to remit the local portion of hartney's tax payments to those entities. the three cases were authority can be found in each of the three relevant sections under the respective subsection obtaining of, orders for goods to the final consummation of the sale by the passing ‘[t]his rule will eliminate a competitive advantage the absence of “a complete list” in the “seller’s acceptance of order” subsection (chemed contracts were stored at the mark sales office, with copies sent to the customer as well as to hartney’s accounting department in forest view. the price for some long-term purchase order main categories: (1) ad hoc sales made to established customers who, on any given day, call hartney, in his capacity as eti dispatcher, or to 'kevin' as dispatch corp. v. state, 186 ill. app. 3d 402 (1989), as authority for its proposition that “a totality of the sales office located in the village of mark, county of putnam, illinois. the trial court correctly forest view, illinois; county of cook, and ) dedicated sales office in a tax venue of its choice.” specifically, the court stated: view and were not within the discretion of personnel in mark. 2012 il app (3d) 110144 230/2a (2010)). thirty days after payment, the money may be transferred out of the protest fund 270.115(a)(1), 320.115(a)(1) (2000). in other words, enough of the selling activity must occur business at which the seller receives the purchase order from the list. mere solicitation is not enough and the focus must be on the administrative review law (735 ilcs 5/3-101 et seq. (2010)). stated another way, the protest option of purchasing fuel from hartney or elsewhere, could choose standards of reasonableness premised upon its best judgment. as in mark to justify the trial court’s finding that mark was the relevant rot jurisdictions. president peter hartney. it is further demonstrated that the process 5 favored [hartney’s] continued and previously condoned practice of operating a separate own rot (86 ill. adm. code 270 et seq.), and (3) a third specifically permitting the regional taxes, reimbursement to them of sums paid under protest, and its sales locations and procedures in a deliberate attempt to minimize its tax liability. we find no produce the records of the previous audits. in forest view. as to the daily purchase orders, the order-taker in mark did not negotiate the sales, accepted by that representative without having to check or approve affirm. to agree that the trial court below applied the correct standard when examining the merits of the 242 ill. 2d 285, 292 (2011) (quoting people v. pullen, 192 ill. 2d 36, 42 (2000)). we construe “daily purchase transactions so, the party must tender the money under protest. 30 ilcs 230/2a (west 2010). the recipient of follows: hartney fuel oil company, ) appeal from the circuit court 220.115(c)(1), 270.115(b)(2), 320.115(b)(2) (2000). 3 that such an interpretation renders the exception found in section 270.115(b)(3) superfluous. if a 18 in the business of selling tangible personal property" place where the seller signed the master contract) will be determinative of the sales situs. see 86 assessment provided the same is shown to have met minimum purchase orders were accepted in mark. the record also confirms that all long-term purchase painting to be its managing sales agent and to provide hartney with a sales representative to maintained a separate designated sales office elsewhere. peter hartney was the president of municipality and/or metropolitan region. see 86 ill. adm. code 220.115(c)(1), 270.115(b)(1), rot (86 ill. adm. code 220 et seq.) , (2) another permitting a home rule municipality to levy its hartney's main office in forest view. the mark "sales" office was created in an attempt to avoid and briefly lived in illinois after marriage but then moved to virginia and had no contact "an occupation, the business of which is to sell tangible personal property at regarding how hartney’s sales agent in mark performed her duties. the representative witnessed ¶ 33 because the parties appear to agree that the trial court below applied the correct standard eti to see when delivery could be made and confirm that timing with the customer before hartney’s accounting staff, the sales agents (located in mark) were the sole individuals involved subsection: if the purchase order is accepted at the seller’s place of business within the county, advise hartney to invoice the customer. as with daily purchase ¶ 20 current audit hartney’s business offices and eti’s dispatch and operational while the state of illinois’s share of sales tax is the same 6.5% throughout the state1 temporary restraining order or a preliminary injunction restraining the transfer of the money. 30 selling activity must occur within that jurisdiction to justify concluding that the seller is engaged in opinion ______________________________________________________________________________ complete and unconditional offer to sell is received by the seller’s on request; neither the sales representative nor eti would have to reliable indicator of legislative intent.’ ” (internal quotation marks omitted) people v. marshall, create an exception for when a seller’s acceptance is consummated outside of illinois. instead, opinion, that the seller’s acceptance of the purchase order or other goal of being right. the parties accurately point out that this is not view, to effect delivery. the evidence establishes that, although standard “[i]n all other civil cases.” samour, 224 ill. 2d at 542. raising its sales tax rate by 0.25%. ¶ 57 in coming to this conclusion, it seems clear to us that hartney has intentionally structured illinois. this would appear to be a reasonable in processing the order. fuel deliveries were the responsibility of eti, which had no ability to ¶ 17 in 1998, idor audited hartney’s payment of both retailers’ occupation tax (rot) and activities, and therefore they do not attempt to provide a complete ¶ 34 on appeal, we apply a dual standard of review. we review legal issues de novo and presiding justice schmidt concurred in the judgment, with opinion. reject or otherwise affect hartney’s acceptance of that order. ¶ 35 statutory law share inures to the benefit of local municipalities (village and county) to which sales are sourced, property is located within a municipality at the time in a municipality or county, even though the order is region, the sale must be made in the course of such seller’s engaging in the retail business within the plaintiffs’ evidence proves by a preponderance of the ¶ 56 we cannot say that the trial court’s factual findings that hartney accepted both daily 2003 that vested putnam painting and its employees with the explicit authority to “receive, ¶ 66 for the reasons stated, i respectfully dissent from the majority’s opinion. explained that there are three relevant sections of title 86 of the administrative code, which case. thus, they have also been allowed to intervene. motor fuel tax (mft) in connection with hartney’s sales out of its du page county office. in customer’s credit was pre-approved, the sales representative would ¶ 6 upon moving its sales operations to mark, hartney contracted with putnam county inc., 217 ill. 2d 144, 153 (2005). we note that the supreme court has only applied the clearly justice mcdade delivered the judgment of the court, with opinion. specifically, the court found that rot liability is determined according to where acceptance of giving the village of mark and the county of putnam standing to seek equitable relief in the possession of the property in illinois. the department will assume accepted all purchase orders at its sales office in du page county, idor levied a $3 million hartney. gary hartney was the president of eti. while hartney moved its corporate and of trustees of the village of mark, ) unfairly subjected to rot liability, it does not set out the applicable test (or in the parallel 8 requirements contracts, with the terms of sale – such as price and location of delivery – minimize its costs of doing business by implementation of the same sales practices employed in although that factor alone may not be dispositive. see 86 ill. adm. code 220.115(c)(1), 26 the purchase orders took place. the interpretation of a statute presents a question of law that this we offer no opinion on this issue. our discussion of the applicable standard is for the sole on the basis of whether an agency ruling was contrary to the entering each entity’s billing record. ¶ 12 from the time an order was placed with the mark sales office until a bill was prepared by ¶ 36 the issue in the present case is whether the trial court erred in finding that hartney’s daily of the retailers' occupation taxes (rots) and in entering judgment in favor of plaintiffs on that basis. 25 substantially the same manner in which it had operated its sales office in du page county. manner as had the la salle and du page county offices. hartney reported that substantially all3 subsection. we therefore do not consider any of these factors when determining where rot rate, cook county's 0.75% rot rate, and the regional transportation authority’s (rta) 0.75% hartney’s billing department to then invoice the customer. gary transit authority to levy its own separate rot (86 ill. adm. code 320 et seq.).5 6 that delivery orders were pursuant to completed sale transactions only relevance in this litigation is the fact that the trial court allowed hartney to argue a negative ilcs 230/2a (west 2010). is the most important single factor in the occupation of selling. if take place at hartney’s forest view office, no such activity within the metropolitan region or by someone who is working out including where fuel prices were set, where price sheets were sent to customers, where credit then delivered in illinois to the purchaser, *** the or fax, and having been previously informed as to whether the as eti) to meet their requirements by keeping their tanks full, or a.d., 2012 offers were accepted in illinois. instead, all offers were accepted at the seller’s business office in furthermore, as to the blanket orders, the order-taker in mark had almost no connection to those several other times over the ensuing years, finally locating it in putnam county (mark), in 2003. charge additional mft on any sales. hartney operated its sales office in la salle county in “b) seller’s acceptance of order page county and thus agreed that hartney was subject to du page county mft. hartney and county, municipality or metropolitan region is not necessary to incur the relevant rot. see 86 order or other contracting action in the making of the sales contract particular municipalities or counties. the 13 sales whatsoever. under these circumstances, i would conclude that hartney's situs for rots was of tax liability (ntl) for the 2005-07 audit period. the ntl reflected forest view’s 1% rot of title and payment of the purchase price. it is obvious that such activities are as purchase order or other contracting action in the making of the sales contract is the most ¶ 16 between 1990 and the present appeal, idor audited hartney’s operations eight times. subterfuge to avoid the application of the rot). in my opinion, the trial court erred in reaching the 16 prices were set, where price sheets were sent to customers, where credit decisions were made, sells it to customers such as railroads, trucking companies, gas stations and other fuel issued, the money must remain in the protest fund until the final judgment of the trial court. 30 ¶ 5 hartney is a fuel marketing company that purchases fuel oil from large fuel suppliers and ¶ 43 as noted above, the subsection, entitled “mere solicitation of orders not doing office in mark and that no further approval, credit check, or ¶ 63 neither the statutes nor the regulations involved in this case specifically define the phrase 10 “we believe the regulations the department has enacted are indeed overcome, plaintiffs must still proceed to meet their burden facsimile or some other form of electronic communication of the next day’s price for fuel oil. found the seller liable because the seller was attempting to evade rot liability altogether and the commissioners, 224 ill. 2d 530, 542 (2007). it has expressly chosen to apply the above dual these three regulations are nearly parallel. any minor distinctions do not impact the5 where an order-taker would take the orders from customers and fax those orders to the main office 30 added.) 86 ill. adm. code 220.115(c)(1) (2000). physical possession of the property in illinois. see 86 ill. adm. code 220.115(c)(1), important single factor in the occupation of selling. if the purchase *** neither located nor sell their products in the in illinois but are immune from the municipal or and long-term sales throughout the subject audit period, were sitused and taxable at its dedicated trustees of the village of mark had filed suit (case 08 mr 11) seeking relief from idor’s refusal penalties and interest assessed against hartney, and return of sales taxes paid under protest and municipality or by someone who is working out of such place of in illinois to constitute it an occupation conducted in this state. except for a general 24 of its sale (or is subsequently produced in illinois), five of those audits covered periods during which hartney had a sales office separate from its home rule taxing districts including the village of forest view, the county of cook, and the 2008, as the audit was nearing its completion, idor destroyed the prior audit files relating to its 1) without attempting to anticipate every kind of fact region with respect to that sale. see 86 ill. adm. code 220.115(b)(1), 270.115(a)(1), taken at a location outside the state, when the goods putnam, illinois. accordingly, it is the judgment of this court that rot and authority rot liability. in reversing the trial court’s decision, the fourth district illinois. testimony established that any calls to hartney’s forest billing purposes. review. instead, the claims were filed pursuant to the protest monies act (30 ilcs 230/1 et seq.4 attributable to forest view, not mark. as a result, on september 5, 2008, idor issued a notice ¶ 22 idor audited hartney from january 1, 2005, until june 30, 2007. gerise ricard was past audit files. neither ricard nor anyone else from idor ever visited the mark sales office or with its sales representative at its designated sales office in mark, (emphasis added.) 86 ill. adm. code 270.115(b)(1) (2000). opinion, in general, that the seller’s acceptance of the purchase county retailers’ occupation tax liability in that home rule made only to locations within du page county. idor, however, interpreted the dupage county 18. otherwise meeting their fuel requirements, upon the terms set forth entitled, “mere solicitation of orders not doing business.” see 86 ill. adm. code 220.115(b), department was asked the following question by the joint 20 situation that may arise in this connection, it is the department’s occupation of selling, not where the goods are to be consumed or happens to be located, stored, or produced in that seller’s complete and unconditional offer to sell is received by the 320.115(a)(1) (2000). we find this language establishes a minimum threshold for making sales such a position is contrary to the express language of the “seller’s acceptance of order” hartney testified that separate individuals were responsible for of the evidence that [hartney’s] daily and long term sales ) mark or to require its rot payments to benefit any municipal entity other than the one(s) in and location where delivery was needed, as well as any special instructions. in a majority of involve levying local sales taxes: (1) one section permitting a home rule county to levy its own hartney personnel. the common carrier, after delivery, would to prohibit such business decisions. nor does it appear, after a review of the record presented to personnel in forest view were not associated with or involved in appellate court of illinois ilcs 230/2a (west 2010). once a temporary restraining order or preliminary injunction is responded: employees money disposition act (protest monies act) (30 ilcs 230/2a.1 (west 2008)). the dedicated sales office located in the village of mark, county of an administrative review in which fact issues would be determined paying the additional rots. the mark office merely served as a mailbox and a fax line for hartney, ¶ 29 standard of review hartney’s final move from la salle county to mark was the result of la salle county3 order or other contracting action in the making of the sales contract defendants begin with a prima facie advantage, being entitled to a the extension of credit to the customer. the evidence proves by should be determined only after considering a plethora of selling activities, including where fuel offices shared the forest view facilities, the two entities were peter would then travel to the mark sales office to sign the contract. the fully executed contract business is conducted." ex-cell-o corp. v. mckibbin, 383 ill. 316, 321-22 (1943). ¶ 49 the dissent generically cites the fourth district appellate court’s decision in chemed purchase orders and long-term purchase orders in mark were against the manifest weight of the ¶ 3 facts 29 orders were accepted in mark. consequently, rot liability is fixed in mark. ‘how are the out-of-state vendors engaged in the (hereinafter referred to collectively as defendants), appeal from the trial court’s judgment. we generally signed the agreement first and then sent the agreement to the customer. the customer during the applicable period occurred in la salle county. thus, it is clear from the supreme court's discussion that the term must be evaluated on a case by (2010); 86 ill. adm. code 270.115(b)(1) (2010); 86 ill. adm. code 320.115(b)(1) (2010). cannot be taxed in any given jurisdiction unless enough of the seller’s selling activity occurs monies act allows a taxpayer willing to pay under protest to avoid the administrative protest relevant sections, creates a bright-line test: where acceptance occurs, rot liability is fixed. see office. by operation of basic contract law, hartney’s sales agent’s ¶ 32 the supreme court has yet to identify what standard applies when a trial court is faced ) honorable scott a. shore, ¶441, ill. rev. stat. 1987, ch. 111 2/3, ¶704.03(e)). specifically, the court stated: contract first, the customer mailed the partially executed agreement to the mark sales office. that municipality or county and the only connection established in advance (long-term purchase orders). ¶ 18 the auditor, having consulted stratman, concluded that all orders were accepted in du 17 ) within the county or by someone who is working out of that place ¶ 61 justice carter, dissenting. ¶ 2 hartney, the village of mark and the county of putnam (hereinafter referred to receive order information as to the type of products to be 320.115(a) (2000); chemed corp., 186 ill. app. 3d at 415-17. the most significant factor in defendants-appellants, ) 11 28 purchase order is accepted, where tangible personal connection with that audit, joseph stratman, an agent with idor’s bureau of criminal against sales situated within its jurisdiction. as those taxing districts stand to receive the benefit sale transaction, binding the principal to sell on the terms and the parties acknowledge this case does not involve administrative review.4 accepting the purchase order. met their burden as above-stated.” ¶ 27 regarding the audit itself, the court determined that “the audit process was, in several rot rate, as well as interest and penalties, for a total of $23,111,939.11 (the disputed tax). determine each case according to the facts which reveal the method by which the idor litigated the assessment. while both agreed that hartney’s sales were accepted at the for its illinois sales. specifically, goods would be shipped from the illinois warehouse after acceptance of order.” separate corporations with separate corporate identities and ¶ 15 past audits state and local sales taxes in forest view in cook county, illinois, rather than being subject only 270.115(b)(1), 320.115(b)(1) (2000); chemed corp., 186 ill. app. 3d at 415-17. in the absence of acceptance of an order in illinois. of illinois, ) accounting staff to mark in november 2008, eti continued to operate from its sole offices in sale. see 86 ill. adm. code 220.115(b)(1), 270.115(a)(1), 320.115(a)(1) (2000). the above during the relevant period required that such contracts be returned in each long term contract. these contracts were serviced by the dupage county sales office, hartney interpreted the du page county mft as applying to sales of such place of business and who does not conduct the business of v. ) important single factor” in determining rot liability, they call our attention to the fact that the in some small percentage of cases, hartney’s sales agent in mark would first check with2 someone working out of such place of business, the seller incurs to (d) (2000); chemed corp. v. state, 186 ill. app. 3d 402, 415-17 (1989). thus, under the engaged in business within the county, municipality or metropolitan region with respect to that county if the sale is at retail and the purchaser receives the physical concluding that the seller is engaged in business within the county, municipality or metropolitan the statute as a whole and afford the language of the statute its plain and ordinary meaning. appellants). ) board of trustees of the village of ) rot liability. that applicable test is found in the following subsection, entitled “seller’s at the place of business where the seller receives the purchase order. 86 ill. adm. code made pursuant to hartney’s long term contracts did not require the department’s assessment by competent, credible evidence, and where specific customer decisions were made and where the timing of deliveries was determined. ¶ 10 with respect to ad hoc purchase orders, hartney customers were informed nightly via someone working out of such place of business, the seller incurs activity potentially subject to rot liability. we view this language as similar to the concept contacts with illinois for purposes of personal jurisdiction where parties were married in illinois municipality and subsequently delivered within ) 2 varied as the methods which men select to carry on retail business and it is therefore within that jurisdiction. this policy is analogous to the personal jurisdictional policy that a party governs rot liability. representative to visit the mark sales office. that representative asked a number of questions without having to confirm or discuss the order with hartney placing of ‘orders’ but instead relied on the common carrier (such requires plaintiffs to necessarily overcome the state defendants’ view office would have been redirected to mark. the agreement assessment against hartney. plaintiffs have the ultimate burden of proof, however, that burden section, or if a purchase order that is an acceptance of the seller’s hartney’s sales had been in mark, (2) redirect the local share of collected state sales taxes to the rebuttable presumption of accuracy as to idor’s audited (2000). opposite conclusion. business,” is found in each of the three relevant sections. see 86 ill. adm. code 220.115(b), ) 22 they are neither located nor sell their products in ¶ 28 analysis are not part of our record, we have not been able to review them, the parties strongly disagree on to that county or municipality is that the product above sections do not expressly provide that it is the only factor. therefore, defendants assert customer’s purchase order or reference number if needed for determinative aspects, flawed, incomplete, factually unsupported, and legally in error.” long-term purchase orders “became binding upon execution and return to the mark sales office, duncan, 94 ill. app. 3d 868, 870 (1981) (determining that defendant did not have sufficient agreement which must be implemented by the purchaser’s placing specific orders when goods are ¶ 53 moreover, we again stress the plain language found in the “seller’s acceptance of order” would then be mailed from the mark sales office to the customer. the originals of the sales confirmation was required or obtained from hartney’s forest view inference from the state's failure or inability to produce prior audit evidence at trial. the audits personnel. if the occasion arose that a customer required earlier, on october 3, 2008, the board of commissioners of putnam county and the board of orders within the taxing jurisdiction in not enough. 86 ill. adm. code 220.115(b), 270.115(a), ¶ 60 affirmed. “b) seller’s acceptance of order in the 270.115(a)(1), 320.115(a)(1) (2000); chemed corp., 186 ill. app. 3d at 415. mere solicitation of i would find that the trial court erred in determining that hartney's situs was in mark for the purpose third district long term purchase transactions factual issues under a manifest weight of the evidence standard. corral v. mervis industries, minimum contacts exist to establish jurisdiction over a party. ¶ 59 for the foregoing reasons, we affirm the judgment of the trial court. whether signed first or later signed in mark by president peter hartney.” additionally, the court ¶ 51 the seller filed claims for refunds of money it paid in relation to additional municipal receives the physical possession of the property in illinois.” mft as being a point-of-acceptance tax like the rot. as a result of finding that hartney opinion filed september 17, 2012 ¶ 42 while defendants concede that the seller’s acceptance of the purchase order is “the most 21 situation that may arise in this connection, it is the department’s representative in mark was required to speak to eti president gary the sales agent accept a purchase order on behalf of hartney then left and did not return. clear proof to the contrary, it is generally assumed that acceptance of the purchaser order takes place abatement or refund of interest and penalties previously assessed, ¶ 38 each of the above three sections expressly provides that “the seller’s acceptance of the where a title passes. the regulations put great emphasis on the beyond the subject audit period. daily purchase order customers, we refuse to create such legal fiction. the forest view office. see marshall & huschart machinery co. v. department of revenue, 18 ill. ¶ 13 long-term purchase orders fall of 2008 – to remit the local portion of hartney’s tax payments to mark and putnam county. 270.115(b)(1), 320.115(b)(1) (2000). 19 to and retained in hartney’s mark sales office. plaintiffs’ evidence (west 2010)), who then places the money in a special fund known as the protest fund (30 ilcs purchased, the tank numbers and quantities, day and time specified orders, hartney’s personnel in forest view had no customer cannot be hailed into court in a specific jurisdiction absent sufficient contacts. see duncan v. of its fuel sales occurred in mark. shortly after hartney moved to mark, idor sent a forest view headquarters. corporation providing the services of a common carrier. during the relevant time frame, the two 320.115(b)(1) (2000). the dissent and defendants would have us ignore this plain language and revenue; and dan rutherford ) 2008 mr 13 further proves by a preponderance of the evidence that deliveries ill. adm. code § 270.115(b)(3) (1985). provide a sales representative to receive, accept and process fuel wrong, and legally misunderstood findings, but for which the audit result would likely have manifest weight of the evidence before it. to the contrary, this consolidated on february 9, 2009. 15 ¶ 52 while the fourth district appears to support defendants’ argument in the instant case that in mark contacted eti as the designated common carrier, in forest ¶ 50 unlike hartney, the seller in chemed corp. did not have a business office in illinois. no "engaged in the business of selling." the regulations make clear, however, that a totality of the prima facie presumption of correctness. if that presumption is classification that might be made of the many retail occupations, it is necessary to ¶ 24 procedural history circumstances test” applies when determining the situs for rot liability. (see ¶63) initially, we seller’s place of business within the metropolitan region or by ‘regardless of the place at which the protest, unless the party making the payment under protest has filed a complaint and secured a assigned to the hartney audit. ricard completed an audit history worksheet, and she and her destroyed and therefore permitted plaintiffs to argue a negative inference from idor’s failure to county or municipality?’ capacity as director, department of ) circuit nos. 2008 mr 11 liability should be fixed. rogers, 204 ill. 2d at 320. “where that language is clear and unambiguous, we must apply the determine where the seller is engaged in business seller’s place of business within the home rule municipality or by 9 ¶ 14 long-term purchase orders were negotiated with customers by peter hartney. peter the regional transportation authority, ) regional transportation authority, each of which has authority to levy additional sales taxes the village of forest view, the county of cook, and the regional transportation authority additional taxes were within the scope of the applicable rot acts (ill. rev. stat. 1987, ch. 120, alternative to exhausting its administrative remedies and pursuing judicial review by way of the ¶ 41 initially, defendants challenge the trial court’s interpretation of the above sections. note that we are not bound by decisions of sister districts. schramer v. tiger athletic ass’n, 351 selling elsewhere within the meaning of subsections (f) and (g) of plaintiffs are entitled to release and disbursement of applicable evidence that hartney fuel sales transactions were completed and ) elsewhere within the meaning of subsections (f) and (g) of this a customer wished to purchase fuel from hartney, the customer contacted its sales office to place 14 ¶ 47 the primary objective of statutory interpretation is to ascertain and give effect to the the common carrier, whether eti or any other firm designated by purchaser in the absence of clear proof to the contrary.” (emphasis to the extent consistent with this judgment.” proves plaintiffs’ opposite conclusions by greater than a ¶ 37 for a seller to incur the relevant rot in a given county, municipality or metropolitan illinois.” (emphasis added.) 86 ill. adm. code 320.115(b)(1) idor sent an individual to the la salle county office to investigate hartney’s la salle county case basis. see ex-cell-o corp., 383 ill. at 321-22. which its sales office is currently located. ¶ 65 in the present case, the evidence showed that virtually all of the sales activity took place at specific time and location (daily purchase orders), and (2) sales made to customers via long-term i would, therefore, reverse the trial court's ruling and remand this case for the trial court to enter ¶ 40 rot liability section 270.115(b)(1) states: ¶ 25 hartney paid the disputed tax under protest. on november 7 and 17, 2008, hartney circumstances test applies. see 86 ill. adm. code 220.115(b) to (e), 270.115(a) to (d), 320.115(a) found that idor had violated its common law duty to preserve the prior audit records that it had 27 retail, is the composite of manyactivities extending from the preparation for, and the putnam county, and the board ) in original.) chemed corp., 186 ill. app. 3d at 417- ¶ 23 ricard ultimately determined, based on nine audit conclusions, that hartney’s sales were 23 purchaser receives the physical possession of the property in municipality and/or metropolitan region; rot liability is fixed in that respective county, recognize the business of retail selling can involve a variety of “c) seller’s acceptance of order preponderance that each sale was completed upon acceptance of ¶ 11 on rare occasions (principally where the customer had not previously passed a credit brian a. hamer, in his official ) appeal nos. 3-11-0144 and 3-11-0151 ¶ 30 as the trial court correctly observed, the instant case does not involve administrative statute without further aids of statutory construction.” marshall, 242 ill. 2d at 292. to state sales tax (as there are no applicable local sales taxes) in mark, putnam county, illinois, are stored or produced in an illinois county or requested relief. defendants, brian a hamer and dan rutherford, in their official capacities, and though credit approval of new daily customers would generally that the seller has accepted the purchase order at the place of judgment in favor of defendants. place of business within the home rule county or by someone county retailers’ occupation tax since they are if hartney accepted the daily and long-term purchase orders in mark, then the applicable rot ¶ 46 defendants fail to cite any relevant authority supporting their claim that rot liability during the subject audit period.1 contracting action in the making of the sales contract is the most hartney was accepting orders in du page county and thus subject to the du page county mft. court reviews de novo. corral, 217 ill. 2d at 153 thereafter with illinois). while this subsection expressly protects a person or business from being orders “were completed and accepted at its dedicated sales office in mark, illinois,” and (2) the evidence. we reject defendants’ contention that “mark was the point of contract ‘acceptance’ in ¶ 19 in late 1998, hartney moved its sales office to la salle county – a county that did not check or had been placed on credit hold), the sales agent in the mark office would reject a sales operations. in 2001, the idor audited hartney’s payment of rot over the period of of business and who does not conduct the business of selling circumstances, hartney’s sales agent in mark accepted a customer’s order on the spot, and then2 ¶4 hartney their content and import, and our standard of review as to factual issues is not de novo. for these ¶ 39 each of the above three sections also provides that under a long-term purchase order 270.115(a), 320.115(a) (2000). the purchase order is accepted at the seller’s place of business home rule municipality if the sale is at retail and the purchaser business within that jurisdiction with respect to that sale. 86 ill. adm. code 220.115(b)(1), selling activity must occur within the county, municipality or metropolitan region to justify 270.115(a), 320.115(a) (2000). again, this subsection expressly provides that enough of the ¶ 21 in august 2003, hartney opened the mark sales office, which operated in the same ¶ 26 after a bench trial, the trial court issued judgment in favor of plaintiffs. the court held page county allowed it to offer competitive prices to customers. hartney moved its sales office “plaintiffs bear the burden of proof by a preponderance of corp., 186 ill. app. 3d at 417) justifies application of a totality of the circumstances test, we note ¶ 31 the protest monies act provides a mechanism for a party to challenge the propriety of its immediate delivery, the sales representative would call gary for [mrot] purposes with respect to such sale.’ 86 headquarters to determine whether to accept or reject the orders. 12 section 320.115(b)(1) states: the customer for the delivery of fuel.” reasons, the previous audits have not factored in any way into the panel’s decision. ohio. the seller did, however, have a warehouse in illinois, which it used as a base of operation erroneous standard to decisions of administrative agencies. samour, inc. v. board of election ¶ 8 ever since hartney first moved its sales operation out of its headquarters in forest view


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise