State of Illinois ex rel. Schad, Diamond & Shedden, P.C. v. National Business Furniture, LLC ( 2016 )

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Appellate Court Date: 2016.11.17
11:31:39 -06'00'
State ex rel. Schad, Diamond & Shedden, P.C. v. National Business Furniture, LLC,
2016 IL App (1st) 150526
Appellate Court THE STATE OF ILLINOIS ex rel. SCHAD, DIAMOND AND
Caption SHEDDEN, P.C., Relator-Appellant, v. NATIONAL BUSINESS
FURNITURE, LLC, Defendant-Appellee.
District & No. First District, First Division
Docket No. 1-15-0526
Filed August 1, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-84; the Hon.
Review Thomas R. Mulroy, Judge, presiding.
Judgment Affirmed.
Counsel on Stephen B. Diamond, P.C. (Stephen B. Diamond, Matthew S. Burns,
Appeal and David Kim, of counsel), and Vanasco, Genelly & Miller (David
A. Genelly, of counsel), both of Chicago, for appellant.
Swanson, Martin & Bell, LLP, of Chicago (Ronald L. Wisniewski, of
counsel), and Brann & Isaacson, of Lewiston, Maine (Peter J. Brann
and David Swetnam-Burland, of counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Cunningham and Justice Connors concurred in the
judgment and opinion.
OPINION
¶1 This is a qui tam action brought on behalf of the State of Illinois by relator, the law firm
Schad, Diamond & Shedden, P.C., against defendant National Business Furniture, LLC, a
retailer of business furniture and office supplies. Relator alleged that, from January 2006
through August 2014, defendant knowingly failed to collect and remit use tax on shipping
charges for Internet and catalog sales it made to Illinois residents, a so-called “reverse false
claim” for which relator contended defendant was liable for treble damages and penalties
under the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2010)). Following a two-day
bench trial, the circuit court entered judgment in defendant’s favor, finding relator failed to
prove that defendant knowingly concealed or avoided an established duty to pay to the State.
For the reasons that follow, we affirm the judgment of the circuit court.
¶2 BACKGROUND
¶3 To put relator’s claims in context, a brief overview is needed of both the law governing the
collection of use tax in Illinois and the way defendant sells and ships its products.
¶4 Pursuant to the Use Tax Act, “[a] tax is imposed upon the privilege of using in [Illinois]
tangible personal property purchased at retail from a retailer.” 35 ILCS 105/3 (West 2014).
Retailers have a duty to collect the tax from their customers and remit it to the State. 35 ILCS
105/3-45 (West 2014). Use tax is computed as a percentage of the selling price of the
merchandise—currently 6.25%. 35 ILCS 105/3-10 (West 2014). At all relevant times, section
130.415 of the Administrative Code provided that the determination of whether use tax must
be collected on shipping charges “depends not upon the separate billing of such *** charges or
expense, but upon whether [they] are included in the selling price of the property.” 86 Ill. Adm.
Code 130.415(b) (eff. Oct. 2, 2000). That is, if shipping charges are separately contracted for,
they are not considered part of the selling price and are not taxed. Id. Although “[t]he best
evidence that transportation or delivery charges were agreed to separately and apart from the
selling price[ ] is a separate and distinct contract for transportation or delivery[,] ***
documentation which demonstrates that the purchaser had the option of [either] taking delivery
of the property, at the seller’s location, for the agreed purchase price, or having delivery made
by the seller for the agreed purchase price plus an ascertained or ascertainable delivery charge
will suffice.” 86 Ill. Adm. Code 130.415(d) (eff. Oct. 2, 2000).
¶5 The Illinois Department of Revenue (IDOR) has issued a number of general information
letters which, although they are not binding statements of department policy, provide further
guidance to retailers regarding when use tax must be collected. These letters state that
“[m]erely listing the [shipping] charges separately on an invoice without more evidence is
insufficient” to establish that such charges were separately contracted for. 1 Because the
determination is fact-specific, the IDOR sometimes states in its letters that a conclusion
regarding a particular retailer’s tax liability cannot be reached without additional information
1
Illinois Department of Revenue General Information Letter No. ST 03-0103-GIL (July 10, 2003).
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regarding how transactions are processed and what delivery options are available to the
retailer’s customers.2
¶6 Our supreme court further clarified the law governing the taxation of shipping charges in
Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351 (2009). The plaintiffs in Kean alleged, inter alia,
that an online retailer improperly collected Illinois use tax on shipping charges in connection
with purchases made from its website. Id. at 354. The appellate court affirmed the circuit
court’s dismissal of the plaintiff’s complaint for failure to state a claim and the supreme court
agreed. Id. at 377. It concluded that “no separate agreement for transportation arose” where,
even though several different options were available to them, “plaintiffs could not submit their
internet orders unless and until they selected a shipping option”; nor could they make
purchases on the defendant’s website and then pick up the merchandise at one of the
defendant’s brick and mortar stores. Id. at 367-69. Because a transaction could only be
completed by paying the defendant for shipping, the supreme court concluded that the shipping
charges were “inseparable” from the sale and therefore taxable. Id. at 369, 376. Notably, the
court in Kean declined to consider several hypothetical scenarios, including whether shipping
charges would be taxable if a customer purchased items from the defendant’s website and
separately arranged for them to be shipped by a third-party carrier. Id. at 376.3
¶7 We turn now to the details of defendant’s business model. Defendant is a Wisconsin-based
company that sells office furniture and supplies to customers throughout the country through
any combination of four channels: in-person visits from sales representatives, catalog orders, a
toll-free telephone line, and defendant’s website. Defendant has no retail locations or
warehouses in Illinois, but instead operates on a drop-shipment model; it forwards orders to
third-party manufacturers it has contracts with, who then ship merchandise directly to
defendant’s customers. Except in rare situations where a customer orders from a local
manufacturer and elects to pick up the merchandise at the manufacturer’s warehouse, the items
defendant sells must be delivered to its customers.
¶8 Defendant does not have separate written contracts regarding delivery. Its customers
typically select the type of delivery they would like and pay defendant a shipping charge that is
indicated on their invoice or order confirmation. Website customers are told that a “delivery
charge will be calculated at checkout. *** This product ships via UPS or FedEx and will be
brought inside your building,” and are provided with a toll-free telephone number to call if
they “require additional services.” A separately itemized shipping charge then automatically
2
See, e.g., Illinois Department of Revenue General Information Letter No. ST 09-0100-GIL (July
31, 2009) (“We cannot tell from the information that you have provided whether the transportation
charges (freight) have been separately contracted for or not under the guidelines of Section 130.415.”).
3
Prompted by the supreme court’s decision in Kean, amendments to section 130.415 that went into
effect on April 1, 2016, now provide a number of additional illustrations clarifying when an
“inseparable link” exists between shipping charges and the selling price of merchandise. 86 Ill. Adm.
Code 130.415(b)(1)(B), amended at 40 Ill. Reg. 6130, 6143 (eff. Apr. 1, 2016). The amendments also
establish a safe harbor period between November 19, 2009, and the effective date, during which time a
business is considered compliant if it computed its tax liability under either the old or the new rule. Id.
Because, as discussed infra, the circuit court did not reach the underlying issue of whether defendant
had a duty to collect use tax on shipping charges in Illinois, but instead concluded that defendant lacked
the requisite state of mind for a False Claims Act violation—and because we affirm on that basis—the
recent amendments to section 130.415 have no bearing on our analysis.
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appears when the customer proceeds to the “shopping cart” page. Defendant’s catalog
similarly indicates that the “ADVERTISED PRICE DOES NOT INCLUDE DELIVERY
CHARGES” and “[s]hipping and handling charges will be applied.” It instructs customers to
call defendant for an “exact charge” for shipping to include on the catalog order form.
¶9 The “frequently asked questions” section of defendant’s website explains that there are
several options for delivery, with smaller items generally delivered by UPS and larger items
like furniture either delivered to the inside of the customer’s place of business or retrieved by
the customer from the back of the delivery truck. Customers are again encouraged to call
defendant for more information about their shipping options. Although not mentioned on
defendant’s website or catalog order form, customers who call may alternatively arrange for
delivery using their own accounts with third-party shipping companies. Those who select this
“freight collect” option are charged nothing for shipping and handling by defendant.
According to defendant’s records, this delivery method was selected in connection with
approximately 20 to25 orders, out of thousands of purchases made by Illinois residents during
the relevant time period.
¶ 10 In Illinois, it has been defendant’s practice at all relevant times to collect and remit use tax
on merchandise totals but not on shipping charges, a practice which is clearly reflected on its
invoices and order confirmations. Exceptions to this policy include sales to tax-exempt
purchasers like government entities, for which no use tax is collected at all, and rare cases
where use tax is collected on the bundled total because the shipping charge is not separately
stated, i.e., where a customer requests a bundled price for its own internal purposes, or where a
vendor includes free shipping in the price of its goods.
¶ 11 In its complaint filed on January 4, 2012,4 relator alleged that, contrary to this policy,
defendant had a clear duty to collect use tax on shipping charges in Illinois. Relator further
alleged that, prior to July 27, 2010, defendant “knowingly made, used or caused to be made or
used [ ] false record[s] or statement[s] to conceal, avoid or decrease [this] obligation to pay or
transmit money or property to the State.” Specifically, relator alleged that defendant’s order
confirmation pages, order and shipment confirmation e-mails, invoices, accounting records,
and the monthly ST-1 tax returns it filed with the IDOR “falsely omit[ted] tax on shipping and
handling charges due on its Internet and Catalog sales.” As to defendant’s actions after July 27,
2010, when amendments to the False Claims Act eliminated the requirement of a false record
or statement (compare 740 ILCS 175/3(a)(7) (West 2008), with 740 ILCS 175/3(a)(1)(G)
(West 2010)), relator simply alleged that defendant “knowingly concealed or knowingly and
improperly avoided or decreased” its obligation to collect and remit use tax on shipping
charges. On February 6, 2014, relator amended its complaint to add allegations of defendant’s
continued failure to collect use tax on shipping charges during the two years that the case had
been pending. Relator sought damages equal to three times the amount of unpaid taxes,
statutory penalties for each failure to file an accurate monthly ST-1 tax return, and expenses,
costs, and attorney fees. See 740 ILCS 175/3(a)(1), (a)(2) (West 2010).
¶ 12 A two-day bench trial was held on August 28 and 29, 2014. The circuit court heard
testimony from the three individuals—Daniel Paruzynski, Eileen Baus, and Perry
Amadon—who served as defendant’s chief financial officers during the relevant time period
and, by virtue of that office, had primary responsibility for the company’s collection and
4
The State declined to intervene on February 24, 2012.
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remittance of state use taxes. In addition to explaining defendant’s business model and the
shipping options available to its customers, these witnesses were questioned regarding when
and how the company implemented its use tax policy in Illinois and what mechanisms it has for
complying with state and municipal tax laws in the various jurisdictions in which it sells
merchandise.
¶ 13 Daniel Paruzynski, a certified public accountant, was hired as defendant’s chief financial
officer in 1999, a position he held until he left the company in February 2008. He testified that
defendant collected use tax on merchandise sold in approximately 20 states and on shipping
charges in approximately 15 of those states. When asked why the company made this
distinction, Paruzynski stated: “Because based on our interpretation of the rules, we
conclude[d] that freight and handling is taxable in those states. And the few states that
[defendant] does not collect and remit, it’s because the conclusion is it’s not taxable in those
states.” Paruzynski explained that, when the company became subject to use taxes within a
jurisdiction, he and his staff would conduct research and “maybe” consult with an accounting
or a law firm regarding the company’s tax obligations. According to Paruzynski, defendant
subscribed to a tax alert to inform it of changes to the rates and rules adopted by the various
states, and employed lawyers and accountants with whom defendant met regularly to advise it
on state tax issues.
¶ 14 Although defendant began to have a sales presence in Illinois around the time he started
with the company, thus making it subject to Illinois use tax requirements, Paruzynski was not
sure if the decision to tax merchandise but not shipping charges was made before or during his
tenure. He admitted, however, that the policy was not revisited when defendant was later
acquired by a German company and had to re-register with the State. Paruzynski “assum[ed]”
the company’s initial conclusion that it had no duty to tax shipping charges in Illinois was
“probably” based on its interpretation of section 130.415. Although he was sure that he had
reviewed the regulation prior to the weeks leading up to trial, he could not recall specifically
when he did so. He furthermore did not recall ever reviewing any case law or general
information letters issued by the IDOR. When asked what conclusions he drew from section
130.415, Paruzynski stated: “The conclusions were that based on how we negotiated freight
with the customer, that [shipping costs] would have been not taxable.” Paruzynski additionally
testified that, during his employment, the accounting firm Deloitte and Touche filed tax returns
on defendant’s behalf in all states where it was required to do so, and never indicated to
defendant that it should tax shipping charges for merchandise delivered in Illinois. He
admitted, however, that he could not recall having any specific conversations with the
accountants regarding the issue. Paruzynski testified that he never received any indication that
the law regarding the taxation of shipping charges in Illinois had changed. If he had, the
company would have revisited its policy.
¶ 15 Eileen Baus began working for defendant in 1996 and served as the company’s controller
from 2003 to 2008 and its chief financial officer from February 2008, when she took over for
Paruzynski, until September 2012. Baus testified that Illinois is one of 20 states and, including
municipalities, hundreds of taxing jurisdictions in which defendant sells merchandise, and that
the company subscribes to a publication that announces changes in state laws governing sales
and use taxes. Although she could not recall where she learned it, Baus has always believed
that a shipping charge was not taxable if it was separately itemized on an invoice. She did not
recall ever reviewing statutes or regulations or talking to defendant’s accountants or lawyers
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about Illinois use tax. She was also not aware of the Kean decision until after the filing of this
lawsuit. Although she relied on those who reported to her to review relevant state court
decisions, she admitted that the company had no specific procedure in place for those
individuals to follow. Baus confirmed that she was involved in the purchase and installation of
new tax software in 2010 and testified that no new review of state tax laws and regulations was
undertaken at that time. Instead, tax codes for each state were simply programmed into the
software based on the company’s existing practices. Baus additionally confirmed that the
company made no changes to its policy relating to the collection and remittance of Illinois use
tax following the filing of this lawsuit.
¶ 16 Perry Amadon testified that he took over as defendant’s chief financial officer in 2012.
When this lawsuit was first filed, he read section 130.415 and “skimmed” the supreme court’s
decision in Kean, but reviewed no other case law. He stated that it was his decision to maintain
the status quo and continue to not collect use tax on shipping charges in Illinois. Although he
agreed that the law “could be interpreted different ways,” Amadon testified that he “never saw
anything that clearly state[d] that [defendant] should have been collecting sales and use tax on
shipping charges.” The circuit court judge made a point of asking Amadon why he did not
consult with a tax professional:
“THE COURT: Someone as careful as you are would when confronted with an
interpretation of regulation normally reach out to an expert tax lawyer or an expert
outside accounting firm and you didn’t and I’m wondering why.
THE WITNESS: I can’t tell you why I didn’t do that.”
¶ 17 Evidence was also presented at trial concerning the IDOR’s audit of defendant’s business
in late 2007 and early 2008. This evidence includes a letter received by defendant from the
IDOR on December 19, 2007, announcing that an “Illinois Sales and Use Tax audit” would be
conducted for the period of January 1, 2006 to June 30, 2007. The IDOR requested access to
defendant’s ST-1 sales and use tax returns, Excel data files for Illinois destination sales,
exemption certificates, and information regarding the company’s own purchases in Illinois.
The letter informed defendant that “[a]s part of the audit process, [the auditor would] perform
compliance reviews for all other Illinois taxes administered by the [IDOR]” and that “[a]ny
additional information required as a result of the review of the above information [would] be
requested as the audit progresse[d].”
¶ 18 Paruzynski testified that, over his career, he had participated in approximately 20 state tax
audits, including seven or eight that occurred while he served as defendant’s chief financial
officer. During the IDOR audit at issue here, Paruzynski and his staff interacted with the
auditor on a day-to-day basis. It was Paruzynski’s understanding that the auditor would look at
the company’s sales tax returns and compare them to company records, verify exemption
certificates for transactions involving tax-exempt purchasers, and review documentation for
purchases made by the company’s Illinois sales representatives. Although the focus of the
audit was not on the collection of use taxes on shipping charges, it was understood that the
auditor would have access to all of defendant’s files and could request any documents he
wanted. In Paruzynski’s experience, state tax auditors typically worked this way, first looking
at specific items, then broadening their search as they saw fit. According to Paruzynski, the
auditor did ask for additional documents during the audit and defendant “made every attempt”
to comply with those requests. Paruzynski did not recall, however, whether the auditor
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specifically asked about defendant’s policy of not collecting use taxes on shipping charges in
Illinois or whether the issue ever arose during the course of the audit.
¶ 19 Paruzynski identified Defendant’s Exhibit No. 5 (the audit file) as “a file that [he] would
have created to document th[e] audit process.” Although he could not say with certainty which
documents were given to the auditor, he testified that the documents in the file all related to
transactions that the auditor had asked about. Although the audit largely involved transactions
with tax-exempt entities for which no use tax was collected, it was apparent from several
documents in the file, including an invoice, screen shots of defendant’s electronic records, and
printouts of customer ledgers, that, when use tax was collected, it was collected only on the
merchandise total and not on shipping charges. Paruzynski testified that, because he believed
the company was complying with Illinois law, he had no concerns about the auditor seeing
documents of this nature. Nor did he have any reason to ask the auditor about defendant’s use
tax policy.
¶ 20 Paruzynski stated that at no time while he was employed by defendant did he have any
doubt that the company was complying with Illinois tax law, a belief he said was confirmed by
the February 27, 2008, audit closing letter which defendant received from the IDOR. The letter
simply informed defendant of an unrelated balance that it owed, which defendant paid, and did
not mention the taxation of shipping charges. Upon receipt of this letter, Paruzynski stated: “I
came to the conclusion that we were handling [the collection of use tax] properly in Illinois.”
¶ 21 In its closing argument, relator argued that defendant had a duty to collect and remit use tax
on shipping charges in Illinois because, just as in Kean, a purchase could not be completed
without delivery, making shipping charges inseparable from the purchase price of the
merchandise. According to relator, defendant’s monthly ST-1 tax returns were false records or
statements that concealed its failure to remit use tax on shipping charges. Relator argued that,
prior to being served with the complaint in this matter in 2012, defendant acted with reckless
disregard by failing to conduct any inquiry into its duty to tax shipping charges in Illinois and,
that, after the complaint was filed, defendant continued to act with at least reckless disregard, if
not deliberate ignorance, when its chief financial officer Perry Amadon decided to continue the
status quo without consulting any tax professional. Finally, relator argued that defendant
“[p]resented no [c]redible [a]udit [d]efense” because none of its witnesses discussed the
taxation of shipping charges with the auditor or could say with certainty that the auditor was
shown documents clearly revealing defendant’s use tax policy.
¶ 22 For its part, defendant argued that the real issue was not whether it had a duty to collect use
tax on shipping charges, but whether relator had met its burden of proving that defendant
knowingly concealed an established duty and, at least prior to July 2010, had made false
statements in its ST-1 tax returns. Defendant contended that, under the specific facts
implicated by defendant’s business model, the duty to collect use tax on shipping charges was
“uncertain and disputed, not established and clear,” and that it reasonably relied on the results
of the IDOR’s audit to conclude that it was in compliance with Illinois law. Defendant stressed
that witnesses’ inability to recall how the company adopted its policy concerning the collection
of use tax in Illinois did not mean that the decision was made haphazardly. According to
defendant, the safeguards it had in place to track changes in state tax laws—including the
review of published tax alerts, reliance on the results of state tax audits, and periodic
consultation with its lawyers and accountants—demonstrated that it took its tax obligations
seriously.
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¶ 23 In its opinion issued on October 23, 2014, the circuit court found that relator failed to
demonstrate that defendant acted with reckless disregard. Finding the defendant’s current and
former chief financial officers to be credible witnesses, the circuit court concluded that
defendant reasonably relied upon the results of the IDOR audit, as well as its own
interpretation of section 130.415, to determine that it had no duty to collect use tax on shipping
charges in Illinois.
¶ 24 Relator’s motion to reconsider was denied and this timely appeal followed.
¶ 25 ANALYSIS
¶ 26 On appeal, relator contends that the circuit court erroneously concluded that defendant did
not recklessly disregard its obligation to collect and remit use tax on shipping charges in
Illinois—a finding fatal to relator’s claim pursuant to the Illinois False Claims Act (740 ILCS
175/1 et seq. (West 2010)).
¶ 27 Although we review a circuit court’s conclusions of law de novo, we defer to its findings of
fact following a bench trial—including its findings regarding a party’s state of mind—unless
they are against the manifest weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228,
251-52 (2002); Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 54 (2009). “A
decision is against the manifest weight of the evidence only when an opposite conclusion is
apparent or when the findings appear to be unreasonable, arbitrary, or not based on the
evidence.” Eychaner, 202 Ill. 2d at 252. We view the evidence in the light most favorable to
the appellee (Cipolla v. Village of Oak Lawn, 2015 IL App (1st) 132228, ¶ 60) and will neither
reweigh the evidence nor reassess the credibility of witnesses (In re D.L., 326 Ill. App. 3d 262,
269 (2004)).
¶ 28 The claim at issue in this case was brought under the Illinois False Claims Act (Act) (740
ILCS 175/1 et seq. (West 2010)),5 an anti-fraud statute modeled on the federal False Claims
Act (31 U.S.C. §§ 3729-3733 (2006)). State ex rel. Beeler, Schad & Diamond, P.C. v.
Burlington Coat Factory Warehouse Corp., 369 Ill. App. 3d 507, 510-11 (2006). Pursuant to
the Act, a party that perpetrates fraud against the State is liable for civil penalties and triple
damages. 740 ILCS 175/3(a)(1) (West 2010). Claims may be brought on the State’s behalf by
the Attorney General or by a private person—referred to as a relator—in a qui tam action. 740
ILCS 175/4(a)-(c) (West 2010). In a qui tam action, the State may choose to intervene or, as in
this case, may instead let the relator proceed with the litigation. 740 ILCS 175/4(b)(4) (West
2010). The relator is considered a party to the action and is entitled to a percentage of the
proceeds or settlement if the suit is successful. 740 ILCS 175/4(c)(1), (d) (West 2010).
¶ 29 The Act prohibits not only the knowing presentment to the State of a false claim for
payment, but also the knowing concealment or improper avoidance of an obligation to pay or
transmit money or property to the State—a so-called “reverse false claim.” 740 ILCS
175/3(a)(1)(A), (G) (West 2010). An “obligation” is defined as, inter alia, an “established
duty, whether or not fixed, arising *** from statute or regulation.” 740 ILCS 175/3(b)(3) (West
2010). As we noted above, amendments which took effect on July 27, 2010, eliminated the
requirement that a defendant concealing an obligation to pay must make a false record or
statement in order to come within the purview of the Act. Compare 740 ILCS 175/3(a)(7)
5
The Act is sometimes referred to by its former title, the Whistleblower Reward and Protection Act.
740 ILCS 175/1 (West 2010).
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(West 2008), with 740 ILCS 175/3(a)(1)(G) (West 2010). For purposes of the Act, a party
“knowingly” conceals or avoids an obligation to pay when it has “actual knowledge” of the
obligation, or “acts in deliberate ignorance” or “reckless disregard” of the obligation. 740
ILCS 175/3(b)(1)(A)(i)-(iii) (West 2010). No proof of a specific intent to defraud is required.
740 ILCS 175/3(b)(1)(B) (West 2010).
¶ 30 Relator contends on appeal that the circuit court erroneously applied the “government
knowledge defense” to conclude that the mere fact of the IDOR audit negated defendant’s
scienter as a matter of law and “permanently immunized [defendant] from liability.” The
defense applies where “the government knows and approves of the particulars of a claim for
payment before that claim is presented” effectively “negat[ing] the fraud or falsity required” to
establish a violation of the Act. United States ex rel. Durcholz v. FKW Inc., 189 F.3d 542, 545
(7th Cir. 1999). According to relator, even if the evidence established that the State knew that
defendant did not collect and remit use tax on shipping charges as a result of the audit, it did not
establish that the State knew and approved of the practice as part of an ongoing dialogue as
required by Durcholz and similar cases. See, e.g., id. Relator urges us to consider de novo
whether the circuit court applied the correct legal standard for this defense.
¶ 31 Although relator directs our attention to its closing argument, in which it faulted defendant
for failing to conclusively demonstrate that the taxation of shipping charges was an issue
discussed with or brought to the IDOR’s attention during the audit, defendant argues that
relator failed to preserve this issue for appeal by raising it for the first time in its posttrial
motion. We conclude that, even if preserved, the argument is based on a flawed reading of the
circuit court’s October 23, 2014, order. The government knowledge defense was not asserted
by defendant at trial. There is furthermore no indication in the record that the circuit court
ruled, as a matter of law, that the State’s knowledge of defendant’s practices precluded
relator’s claim. Instead, it made a finding of fact on the merits of relator’s claim, concluding
that relator failed to establish that defendant acted with the requisite state of mind. The court’s
focus was not on the legal effect of what the State knew, but on what defendant’s employees
believed about the company’s duty to collect and remit use tax in Illinois. Because the
government knowledge defense was neither raised at trial nor implicated by the circuit court’s
order, the authorities cited by relator establishing the elements of that defense are inapplicable.
¶ 32 We instead consider whether the circuit court’s findings are contrary to the manifest weight
of the evidence. Without reaching the underlying issue of whether defendant had a duty to
collect and remit use tax on shipping charges in Illinois, the circuit court concluded that relator
failed to prove that defendant knowingly concealed or improperly avoided an obligation to pay
money to the State. Specifically, the court concluded that the evidence presented at trial did not
establish that defendant acted with reckless disregard. Although few courts in Illinois have
addressed the issue, a number of federal courts have considered what it means to act with
reckless disregard in the context of an alleged False Claims Act violation. Because the
language of the federal and Illinois statutes are virtually identical, we review decisions from
these courts as persuasive authority. State ex rel. Beeler, Schad & Diamond, P.C. v. Target
Corp., 367 Ill. App. 3d 860, 865 (2006). In doing so, a clear picture of the requisite state of
mind emerges.
¶ 33 To begin with, reckless disregard does not encompass mere “[i]nnocent mistakes or
negligence.” (Internal quotation marks omitted.) United States v. King-Vassel, 728 F.3d 707,
712 (7th Cir. 2013). Although the congressional report accompanying the bill that added the
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reckless disregard standard to the federal statute defined it as the failure “ ‘to make such
inquiry as would be reasonable and prudent to conduct under the circumstances,’ ” the report
further noted that this is “ ‘a limited duty to inquire as opposed to a burdensome obligation,’ ”
and “ ‘[o]nly those who act in gross negligence of this duty will be found liable.’ ” (Emphasis
and internal quotation marks omitted.) United States ex rel. Williams v. Renal Care Group,
Inc., 696 F.3d 518, 530 (6th Cir. 2012) (quoting S. Rep. 99-345, at 20 (1986), as reprinted in
1986 U.S.C.C.A.N. 5266, 5285-86). Thus, reckless disregard has been described as “an
extreme version of ordinary negligence” (United States v. Krizek, 111 F.3d 934, 942 (D.C. Cir.
1997)), “an aggravated form of gross negligence” (United States ex rel. Burlbaw v. Orenduff,
548 F.3d 931, 945 n.12 (10th Cir. 2008)), “gross negligence-plus” (Krizek, 111 F.3d at 941),
and a state of mind lying “on a continuum between gross negligence and intentional harm”
(id.). Its inclusion in the statute “attempts to reach *** the ostrich type situation where an
individual has buried his head in the sand and failed to make simple inquiries which would
alert him that false claims are being submitted.” (Internal quotation marks omitted.) United
States ex rel. Ervin & Associates, Inc. v. Hamilton Securities Group, Inc., 370 F. Supp. 2d 18,
41 (D.D.C. 2005) (quoting S. Rep. 99-345, at 20 (1986), as reprinted in 1986 U.S.C.C.A.N.
5266, 5285). Accordingly, a party acts with reckless disregard when it ignores “obvious
warning signs” and “refus[es] to learn of information which [it], in the exercise of prudent
judgment, should have discovered.” (Internal quotation marks omitted.) Id. at 42.
¶ 34 Here, the circuit court stated that it found defendant’s current and former chief financial
officers, Paruzynski, Baus, and Amadon—who all testified that defendant believed its
shipping and handling charges were not part of the taxable selling price of the goods defendant
sold—“to be credible witnesses.” Noting that “[t]he proliferation of statutes and regulations
has sometimes made it difficult for the average citizen to know and comprehend the extent of
the duties and obligations imposed by the tax laws,” and that “[t]he purpose of the [Act] is not
to penalize frank differences of opinion or innocent errors made despite the exercise of
reasonable care,” the circuit court concluded that defendant did not act recklessly when it
relied both upon the results of the IDOR audit and its own interpretation of section 130.415 to
determine that it had no duty to collect use tax on shipping charges in Illinois.
¶ 35 With respect to the audit, the circuit court found that defendant “disclosed to the auditor
invoices and transaction records showing sales of goods, use tax collected on those goods,
separate charges of shipping and handling, and no use tax collected on those charges,” that
“[t]he IDOR, *** carefully audited [defendant’s] books and records and found no violation of
§130.415,” and that the IDOR concluded the audit did not indicate in any way that defendant’s
policies and practices were not in compliance with Illinois law. Taken as a whole, the contents
of the audit file and the testimony of defendant’s employees support the circuit court’s
conclusion that defendant reasonably relied on the results of the audit to determine that it was
in compliance with Illinois law. The IDOR’s audit-initiation letter made clear that the audit
was an “Illinois Sales and Use Tax audit” and that the auditor would be checking for
compliance with “all” Illinois taxes. Relator presented no evidence indicating that defendant’s
employees were anything other than forthright with the auditor. Although the focus of the audit
may not have been on the taxation of shipping charges, the evidence nonetheless established
that the auditor had access to all of defendant’s tax records.
¶ 36 Relator argues that no witness testimony or documentary evidence conclusively
established that the auditor viewed invoices for taxable transactions from which it would have
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known that defendant was not collecting use tax on shipping charges. Defendant presented at
least some evidence that the auditor was made aware of the company’s policy as a result of the
audit, however. Relator correctly notes that only one invoice in the audit file,6 regarding a
customer named GC America, relates to a taxable transaction. We disagree, however, with
relator’s assertion that this document, on its face, would not have alerted the auditor to the fact
that defendant generally did not tax shipping charges for otherwise taxable transactions. As
part of the audit, defendant sent GC America a letter stating that it had not charged the
appropriate Illinois sales tax. Although defendant never collected use tax for this transaction
because GC America indicated that it had already self-assessed and paid the tax on its own, the
invoice defendant prepared to accompany the letter clearly indicated the tax defendant was
otherwise prepared to collect was based only on the merchandise total.
¶ 37 As the trier of fact, the circuit court was in the best position to make a determination as to
witness credibility and the weight to be afforded to the testimony. In re Estate of Maslowski,
204 Ill. App. 3d 379, 384 (1990). It concluded that defendant’s employees were truthful when
they testified both that they believed the auditor was well aware of defendant’s use tax policy
as a result of the audit and that they concluded at the close of the audit that defendant’s
practices were in compliance with Illinois law. This was compelling evidence that defendant
did not act with reckless disregard with respect to any obligation to pay money to the State.7
The circuit court’s findings were thus not “unreasonable, arbitrary, or not based on the
evidence,” nor was the opposite conclusion apparent. Eychaner, 202 Ill. 2d at 252.
¶ 38 Even without the evidence of the IDOR audit, the court’s finding that defendant did not act
with reckless disregard was not contrary to the manifest weight of the evidence. Given that, at
all relevant times, neither section 130.415, the IDOR’s general information letters, Kean, nor
any other case law that we are aware of addressed the “freight collect” option that defendant’s
current and former chief financial officers testified was available to its customers through the
company’s toll-free telephone line, reasonable minds could disagree regarding whether
defendant had a duty to collect and remit use tax on shipping charges in Illinois.8 This court
6
Although relator repeatedly stresses that the audit file was admitted over objection, it makes no
challenge to the circuit court’s evidentiary rulings on appeal.
7
Notably, even the IDOR general information letters that relator argues defendant should have
reviewed indicate that, when presented with fact-specific questions regarding whether use tax should be
collected on shipping charges, the department often defers to its auditors in the field, who it feels are in
a better position to know the relevant facts. See, e.g., Illinois Department of Revenue General
Information Letter No. ST 03-0103-GIL (July 10, 2003) (“We are unable to respond to the [sic] your
letter in the manner requested. As you are currently under audit with the Illinois Department of
Revenue, we must decline to provide an opinion as to the taxability of the charges about which you are
inquiring.”). Other letters, which relator relied on in connection with its motion for summary judgment
but chose not to introduce at trial, make this deference even clearer. See, e.g., Illinois Department of
Revenue General Information Letter No. ST 05-0029-GIL (May 5, 2005) (“In light of the information
contained in your letter, we must defer to the determination of the auditor, who is in the best position to
make a determination on this matter.”).
8
Indeed, although the amendments to section 130.415 that went into effect earlier this year have no
bearing on defendant’s state of mind during the time frame at issue here, the numerous additional
examples they provide of when an “inseparable link” exists between delivery charges and the selling
price of merchandise confirm that the determination is fact-intensive and indicate that the IDOR felt
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has held that a knowing violation of the Act cannot occur “when the pertinent area of the law is
unclear and specific factual analysis must be completed to determine” a retailer’s use tax
liability. State ex rel. Beeler, Schad & Diamond, P.C. v. Ritz Camera Centers, Inc., 377 Ill.
App. 3d 990, 997 (2007). Such was the case here. We, therefore, cannot say it was arbitrary or
unreasonable for the circuit court to believe the testimony of defendant’s employees that the
company honestly, even if mistakenly, concluded that it had no such duty.
¶ 39 In sum, relator’s primary assertion that “[f]or more than a decade, [defendant] failed to
make any inquiry into its duty to collect and remit taxes on shipping charges” (emphasis
added) mistakenly applies an ordinary negligence standard to a cause of action that requires
“gross negligence-plus.” To be sure, to the extent that defendant’s employees believed that the
company did not have to tax shipping charges simply because they were separately itemized,
they were mistaken. Their failure to periodically review the company’s policies absent
publicized changes in state laws may or may not have been negligent. Significantly more than
an error, mistake, or ordinary negligence is required, however, to demonstrate reckless
disregard in the context of a False Claims Act violation. Wang v. FMC Corp., 975 F.2d 1412,
1421 (9th Cir. 1992) (explaining that the concern in a false claims case is with uncovering
fraud, not errors), overruled on other grounds by United States ex rel. Hartpence v. Kinetic
Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015); Hindo v. University of Health Sciences/The
Chicago Medical School, 65 F.3d 608, 613 (7th Cir. 1995) (noting that “[i]nnocent mistakes or
negligence are not actionable” as false claims). Relator instead needed to prove that defendant
ignored obvious warning signs, buried its head in the sand, and refused to learn information
from which its duty to pay money to the State would have been obvious. Ervin, 370 F. Supp. 2d
at 41-42. The evidence presented in this case, taken as a whole together with all reasonable
inferences in defendant’s favor, was not manifestly inadequate to support the circuit court’s
conclusion that relator failed to meet this burden.
¶ 40 Because we affirm the judgment below on the grounds relied upon by the circuit court, we
need not consider the alternative arguments raised by defendant on appeal, i.e., whether
defendant in fact had a duty to collect use tax on shipping charges or whether it made false
statements or records in an effort to conceal such a duty.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 43 Affirmed.
retailers were in need of additional guidance beyond that previously available. See 40 Ill. Reg. 6130,
6143 (eff. Apr. 1, 2016).
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