CitiBank N.A. v. Illinois Department of Revenue , 2016 IL App (1st) 133650 ( 2017 )

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Citibank, N.A. v. Illinois Department of Revenue, 2016 IL App (1st) 133650
Appellate Court CITIBANK, N.A., Plaintiff-Appellee, v. THE ILLINOIS
Caption DEPARTMENT OF REVENUE and BRIAN HAMER, Director of
Revenue, Defendants-Appellants.—CHRYSLER FINANCIAL
SERVICES AMERICAS, LLC, n/k/a TD Auto Finance, LLC,
Plaintiff-Appellant, v. THE ILLINOIS DEPARTMENT OF
REVENUE and BRIAN HAMER, Director of Revenue,
Defendants-Appellees.
District & No. First District, Third Division
Docket Nos. 1-13-3650, 1-15-0812 cons.
Filed November 2, 2016
Decision Under Appeal from the Circuit Court of Cook County, Nos. 13-L-50072,
Review 13-L-50005; the Hon. Patrick J. Sherlock and the Hon. Robert
Lopez-Cepero, Judges, presiding.
Judgment Appeal No. 1-13-3650 affirmed.
Appeal No. 1-15-0812 dismissed.
Counsel on Lisa Madigan, Attorney General, of Chicago (Carl J. Elitz, Assistant
Appeal Attorney General, of counsel), for appellants Illinois Department of
Revenue and Brian Hamer.
Horwood Marcus & Berk Chtrd., of Chicago (Fred O. Marcus, of
counsel), and Akerman LLP, of Tampa, Florida (Brian R. Harris, of
counsel), for appellee Citibank, N.A.
Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the
judgment and opinion.
OPINION
¶1 These consolidated appeals involve the review of the determinations of the Department of
Revenue (Department) on claims by plaintiffs Citibank, N.A. (Citibank) and Chrysler
Financial Services America, LLC, n/k/a TD Auto Finance, LLC (Chrysler), for refunds of
taxes under section 6 of the Retailers’ Occupation Tax Act (ROTA) (35 ILCS 120/6 (West
2012)). Citibank and Chrysler sought refunds of ROTA taxes associated with uncollectible
debt on credit and installment contracts financed by Citibank and Chrysler for the purchase of
goods. The Department denied both Citibank’s and Chrysler’s claims for refunds. The circuit
court reversed the Department’s determination on Citibank’s claim, which the Department
now appeals (Appeal No. 1-13-3650). In contrast, the circuit court affirmed the Department’s
determination on Chrysler’s claim, in response to which Chrysler instituted the other appeal at
issue in this matter (Appeal No. 1-15-0812).
¶2 For the reasons that follow, we affirm the judgment of the circuit court on Citibank’s claim.
Although involving very similar facts relevant to the issue of standing, Chrysler’s appeal must
be dismissed for lack of jurisdiction.
¶3 BACKGROUND
¶4 Appeal No. 1-13-3650
¶5 In its claim to the Department, Citibank sought a refund of $1,600,853.32 in ROTA taxes
paid on sales funded through the use of consumer accounts owned by Citibank. Citibank’s
claim was submitted to the Department’s administrative law judge (ALJ) on facts stipulated to
by the parties. Those stipulated facts established the following:
¶6 The retailers (doing business in Illinois) involved in the sales at issue provided their
customers with the option to finance their purchases, including the applicable ROTA tax, on a
credit basis. Citibank, through agreements with the retailers, would then originate or acquire
those consumer charge accounts and receivables from the retailers on a nonrecourse basis.
Under these agreements, Citibank acquired all rights related to the accounts, including the right
to all payments from the consumers and the right to claim ROTA tax refunds or credits.
¶7 Each time a consumer used his or her account to finance a purchase, Citibank would remit
to the retailer the full amount financed by the consumer, including any applicable ROTA tax.
The retailer would then remit the ROTA tax to the State.
¶8 Eventually, some of the consumers on these accounts defaulted, leaving unpaid balances
that included amounts attributable to financed ROTA taxes. After attempting to collect the
balances on the defaulted accounts, Citibank determined that the defaulted accounts were
worthless, wrote the balances off on its books and records, and claimed the balances as bad
debt on its federal income taxes between January 1, 2008, and December 31, 2009.
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¶9 The $1,600,853.32 Citibank sought to have refunded constituted that portion of the ROTA
taxes attributable to the unpaid and written off balances of the defaulted consumer accounts.
¶ 10 On January 31, 2011, the Department issued a notice of tentative denial to Citibank. In
response, Citibank requested an administrative hearing. In his recommendation for disposition,
the ALJ recommended that (1) Citibank’s claim be denied on the bases that Citibank did not
include all of the required information or sufficient detail on its application for a refund,
(2) Citibank did not bear the burden of the ROTA tax, (3) the ROTA tax was not paid in error,
(4) there was no evidence that any erroneously paid taxes were refunded to the consumer,
(5) Citibank was not the remitter of the taxes to the State, and (6) the assignments from the
retailers to Citibank did not give Citibank a right to a refund of the ROTA taxes. On December
13, 2012, the Director of the Department adopted the ALJ’s recommendation. Citibank
appealed to the circuit court of Cook County.
¶ 11 On October 17, 2013, the circuit court issued an order reversing the Department’s denial of
Citibank’s claim. The circuit court concluded that the primary issue was whether Citibank bore
the burden of the taxes, not whether it was a retailer, as neither the applicable statute nor the
applicable administrative regulation limited refunds to retailers. According to the circuit court,
even if it was of some consequence whether Citibank was a retailer, the retailers had properly
assigned their rights to Citibank, entitling Citibank to a refund. Finally, the circuit court
concluded that Citibank was not required to refund the taxes to the consumer before seeking a
refund and that Citibank did not fail to provide all of the information required in its application
for a refund.
¶ 12 The Department then filed a timely notice of appeal.
¶ 13 Appeal No. 1-15-0812
¶ 14 In its claim, Chrysler sought a refund of $4,630,622.71 in ROTA taxes on the sales of
certain motor vehicles. As in the previous appeal, Chrysler’s claim was submitted to the
Department’s ALJ on facts stipulated to by the parties. Those stipulated facts established the
following.
¶ 15 For the sales at issue, the retailer and consumer entered into retail installment contracts (in
Illinois) under which the consumer agreed to pay the entire amount financed over time in fixed
installments of a specific sum. The total amount financed included the total purchase price of
the vehicle, along with the total ROTA tax due on the sale, minus any down payment made by
the consumer. Any down payments were applied pro rata between the purchase price and the
ROTA tax.
¶ 16 Contemporaneously with the execution of the installment contracts, the retailers assigned
to Chrysler all of their rights, titles, and interests in the installment contracts, without recourse.
The assignments included the right to enforce the debt and to repossess the collateral in the
event of default by the consumers. In exchange for these assignments, Chrysler paid the
retailers the entire amounts financed under the contracts. The retailers then reported and
remitted to the State the amount of ROTA taxes due on each of the sales.
¶ 17 Some of the consumers who entered into the installment contracts with the retailers
defaulted on their obligations to pay, resulting in a failure to fully repay the total purchase price
and ROTA tax amounts. In some instances, the vehicles were repossessed and sold. Any
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amounts collected on the sale of the repossessed vehicles were applied pro rata between what
remained of the sales price and the ROTA tax.
¶ 18 Following reasonable attempts to collect any outstanding balances on the defaulted
installment contracts, Chrysler determined them to be worthless and claimed the remaining
balances as bad debts on their federal taxes. These bad debts were written off between April 1,
2006, and March 31, 2009.
¶ 19 The $4,630,622.71 Chrysler sought to have refunded constituted the portion of the ROTA
taxes attributable to the unpaid and written off balances of the defaulted installment contracts.
¶ 20 On August 6, 2010, the Department issued a notice of tentative denial to Chrysler. In
response, Chrysler requested an administrative hearing. In his recommendation for disposition,
the ALJ recommended that (1) Chrysler’s claim be denied on the bases that Chrysler did not
bear the burden of the ROTA tax, (2) the ROTA tax was not paid in error, (3) there was no
evidence that any erroneously paid taxes were refunded to the consumer, (4) Chrysler was not
the retailer of the goods sold and did not remit the ROTA taxes to the State, (5) the assignment
from the retailer to Chrysler did not give Chrysler a right to a refund of the ROTA taxes, and
(6) Chrysler failed to prove the claimed refund amount. On November 29, 2012, the
Department issued its final determination, denying Chrysler’s claim. Chrysler appealed to the
circuit court of Cook County.
¶ 21 On March 14, 2014, the circuit court issued an order sustaining the Department’s denial of
Chrysler’s claim on the bases that (1) no tax was paid in error, (2) Chrysler did not remit the
ROTA taxes to the State, (3) Chrysler was not a retailer, (4) the assignments did not bind the
State, and (5) Chrysler did not bear the burden of the ROTA taxes.
¶ 22 Eight and a half months later, on November 25, 2014, Chrysler filed a petition to modify
the judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
2012)). In the section 2-1401 petition, Chrysler claimed that it did not learn that the circuit
court had issued its decision on Chrysler’s appeal until October 2014. Chrysler claimed that
upon review of the circuit court’s decision, it realized that the circuit court had failed to address
Chrysler’s contention that the ALJ erred in disregarding the parties’ stipulation as to the
amount of Chrysler’s claim and requiring Chrysler to support the claimed amount with
documentation. Chrysler requested that the circuit court modify its March 14, 2014, judgment
to include an analysis of this issue.
¶ 23 On December 16, 2014, the circuit court issued an order simply stating that the section
2-1401 petition was granted. Thereafter, on March 3, 2015, the circuit court issued a
supplemental opinion, which was identical to its March 14, 2014, order, with the exception that
it also contained the circuit court’s conclusion that the ALJ had erred in disregarding the
parties’ stipulation as to the amount of Chrysler’s claim and a statement that the period for
appeal of the circuit court’s decision began to run as of the date the circuit court’s supplemental
opinion was entered.
¶ 24 Chrysler filed its notice of appeal on March 19, 2015, purporting to appeal from the circuit
court’s supplemental opinion under Illinois Supreme Court Rule 303(a)(3) (eff. Jan. 1, 2015).
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¶ 25 ANALYSIS
¶ 26 On appeal, both Citibank and Chrysler argue that they are entitled to refunds of the ROTA
taxes attributable to the uncollectible debt on the defaulted credit and installment contracts,
because they bore the burden of the ROTA taxes and because the retailers assigned the rights to
such refunds to Citibank and Chrysler. The Department, on the other hand, argues that
Citibank and Chrysler lack standing to obtain refunds of the ROTA taxes because they are not
retailers who remitted the taxes to the State. As we discuss below, Citibank is entitled to a
refund as the assignee of the retailers. Chrysler’s appeal, however, must be dismissed for lack
of jurisdiction.
¶ 27 Appeal No. 1-13-3650
¶ 28 On appeal, the Department argues that Citibank is not entitled to a refund of ROTA taxes
attributable to the uncollected amounts on the defaulted accounts because (1) Citibank lacks
standing under the relevant statute to seek such a refund because it is not a retailer, and (2) even
if it did have standing, Citibank failed to comply with the procedural application requirements
of the applicable statutes and regulations. For the reasons that follow, we conclude that
Citibank had standing by way of assignment to seek a refund and that any deficiencies in
Citibank’s application were moot because the Department stipulated that the refund amount
sought by Citibank was comprised of ROTA taxes attributable to the unpaid debt.
¶ 29 We first address the Department’s motion to strike a portion of Citibank’s brief on the basis
that it cites to the unpublished decision of Home Depot USA, Inc. v. Hamer, No. 4-09-0611
(May 5, 2010) (unpublished order under Supreme Court Rule 23), for the proposition that the
Department is collaterally estopped from arguing that Citibank did not bear the burden of the
ROTA taxes at issue and, thus, did not have standing to seek a refund. Because we resolve this
case on different grounds and do not consider the holding of Home Depot in reaching our
decision, the Department’s motion is denied as moot.
¶ 30 We turn now to the merits of this case. On appeal, we review the determination of the
administrative agency, not that of the circuit court. Richard’s Tire Co. v. Zehnder, 295 Ill. App.
3d 48, 56 (1998). Administrative agency decisions on questions of law—such as whether a
party has standing—are reviewed de novo. See City of Belvidere v. Illinois State Labor
Relations Board, 181 Ill. 2d 191, 205 (1998); Kohls v. Maryland Casualty Co., 144 Ill. App. 3d
642, 644 (1986). Questions of mixed law and fact—such as whether Citibank is entitled to a
refund of ROTA taxes—are reviewed for clear error. City of Belvidere, 181 Ill. 2d at 205.
¶ 31 The Department first contends that Citibank lacks standing to seek a refund of ROTA taxes
because it is not a retailer that remitted the taxes to the State and because the right to a refund
could not be assigned to Citibank by the retailers. We need not address the Department’s
contention that only retailers that remit the taxes have standing to pursue a refund because we
conclude that even if only remitting retailers have standing under the statute, the retailers in the
present case effectively assigned their rights to pursue a refund to Citibank.
¶ 32 The parties do not quibble about the law applicable to assignments. An assignment is a
transfer of property or a right from one person to another, which confers a complete and
present right in the property or right to the assignee. Amalgamated Transit Worker’s Union v.
Pace Suburban Division, 407 Ill. App. 3d 55, 60 (2011). Assignability is the rule in today’s
legal world, and nonassignability is the exception. Kleinwort Benson North America, Inc. v.
Quantum Financial Services, Inc., 181 Ill. 2d 214, 225 (1998). Both common law and statutory
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rights are assignable unless a statute or public policy clearly states otherwise. Amalgamated
Transit, 407 Ill. App. 3d at 60. Following an assignment, the assignee stands in the shoes of the
assignor with respect to the rights, title, and interest in the thing assigned. Collins Co. v.
Carboline Co., 125 Ill. 2d 498, 512 (1988); In re Estate of Martinek, 140 Ill. App. 3d 621,
629-30 (1986).
¶ 33 The Department asserts that the assignment of the right to a refund of ROTA taxes is
prohibited by section 6 of ROTA and violates public policy. We address each of these in turn.
¶ 34 Our supreme court has explained the tax scheme under ROTA and the complementary Use
Tax Act (35 ILCS 105/3 (West 2006)) as follows:
“ROTA and the Use Tax Act are complementary, interlocking statutes that
comprise the taxation scheme commonly referred to as the Illinois ‘sales tax.’
[Citations.] Whereas ROTA imposes a tax ‘upon persons engaged in the business of
selling at retail tangible personal property’ [citation], the Use Tax Act imposes a tax
‘upon the privilege of using in this State tangible personal property purchased at retail
from a retailer’ [citation]. ***
A retailer’s tax liability under ROTA is computed as a percentage of ‘gross
receipts’ (35 ILCS 120/2-10 (West 2006)), defined as the ‘total selling price’ (35 ILCS
120/1 (West 2006)). Similarly, the use tax is determined as a percentage of the ‘selling
price.’ 35 ILCS 105/3-10 (West 2006).” Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351,
362 (2009).
The tax rate under both ROTA and the Use Tax Act is 6.25%. 35 ILCS 120/2-10 (West 2014);
35 ILCS 105/3-10 (West 2014).
¶ 35 Typically, the retailer collects the use tax from the consumer and remits it to the
Department. A retailer need not remit the use tax, however, if it has paid the ROTA tax on the
gross receipts of the same sale. Accordingly, although a single sale and purchase triggers the
duty to pay two different taxes, the Department receives payment for only one of the taxes, and
that payment satisfies both taxes. Kean, 235 Ill. 2d at 363.
¶ 36 With respect to refunds of ROTA taxes, section 6 of ROTA provides in relevant part:
“If it appears, after claim therefor filed with the Department, that an amount of tax or
penalty or interest has been paid which was not due under this Act, whether as a result
of a mistake of fact or an error of law, except as hereinafter provided, then the
Department shall issue a credit memorandum or refund to the person who made the
erroneous payment ***.” 35 ILCS 120/6 (West 2014).
The Department contends that this section limits refunds to the remitter of the tax and,
therefore, also prohibits the assignment of the right to a refund to anyone other than the
remitter of the tax. We disagree. The language of section 6 does not discuss the assignment of
the right to a tax refund, much less limit or prohibit the assignment of such a right. Even if
section 6 bestows the right to a tax refund solely upon the remitter of the tax, that does not
mean that after the initial bestowment, the remitter is not free to do what it pleases with that
right. Given the lack of language in section 6 limiting the assignment of the right to a refund,
we conclude that the retailers’ assignments to Citibank were not precluded by statute. See
People ex rel. Stone v. Nudelman, 376 Ill. 535, 539 (1940) (concluding that because the
language of the statute did not limit what could be done with a credit memorandum after it was
issued or otherwise discuss its assignability, the credit memo was assignable).
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¶ 37 The Department also argues that the assignment of a right to a ROTA tax refund violates
public policy (1) because it could result in the refund of taxes not actually paid, leading to the
unjust enrichment of persons who did not pay the taxes themselves, and (2) because Citibank
was compensated through vendor discounts, cardholder charges, and interest payments. With
respect to the first contention, the Department claims that assignments are more likely to result
in mistakenly issued refunds than if refunds are limited to those with whom the Department has
an existing taxpayer/collector relationship, i.e., retailers. In illustration of this point, the
Department points to Citibank’s claimed failure to present documentation evidencing the
transactions underlying the bad debts. The Department does not explain, and we do not find,
any correlation between this supposed lack of evidence and Citibank’s status as an assignee.
Rather, as discussed below, any lack of documentation on the part of Citibank appears to have
been a result of the parties’ stipulation to the amount of taxes attributable to the uncollected
debt, not Citibank’s status as an assignee. Moreover, the conclusion that the right to a refund
under section 6 is assignable does not alter the procedural requirements a claimant—whether
remitter or assignee—must comply with before a refund will be issued. Therefore, the
Department is still free to vet applications for refunds in the same manner it always has.
¶ 38 We also find to be without merit the Department’s second contention that the assignment
of the right to a ROTA tax refund violates public policy because it would be unfair to allow
Citibank to collect a tax refund where it has already been compensated—through vendor
discounts, cardholder charges, and interest payments—for the “bad debt risks” inherent in its
business through vendor discounts, cardholder charges, and interest payments. The
compensation Citibank receives for its services has no bearing on whether the right to a tax
refund is assignable. More importantly, it is not the province of this Court to police what is
considered to be fair compensation for Citibank’s services. Resolution of what constitutes fair
compensation belongs to the parties to the agreement—Citibank and the retailers—and it
would appear that the parties considered Citibank’s services to be worth not only the vendor
discounts, cardholder charges, and interest payments, but also the assignment of any ROTA
tax refund that might become due. Thus, regardless of whether the vendor discounts,
cardholder charges, and interest payments do, in fact, adequately compensate Citibank for the
risks they run in financing purchases by consumers, it is inappropriate to invoke public policy
to undo an agreement between the parties. See Kleinwort, 181 Ill. 2d at 226 (“The power to
invalidate part or all of an agreement on the basis of public policy is used sparingly because
private parties should not be needlessly hampered in their freedom to contract between
themselves.”).
¶ 39 Although interwoven into its other arguments, the Department also argues that Citibank is
not entitled to a refund via the assignments, because the retailers (the assignors) would not be
entitled to a refund under the present circumstances. We disagree. Pursuant to the
Department’s regulation 130.1960(d) (86 Ill. Adm. Code 130.1960(d) (2000)), a retailer who
incurs bad debt on a sale may obtain a “bad debt credit” to the extent that the retailer has paid
ROTA taxes on the uncollected debt or to the extent that he has paid ROTA taxes on a portion
of the sales price that he is not permitted to retain due to repayment to a lending agency under
a “with recourse” agreement. To qualify, the written off debts must be deducted on the
retailer’s federal taxes. 86 Ill. Adm. Code 130.1960(d)(1)-(2) (2000). These taxes are
considered to be paid in error, and the retailer may file a claim for their refund pursuant to
section 6 of ROTA. 86 Ill. Adm. Code 130.1960(d)(3) (2000).
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¶ 40 According to the parties’ stipulation, in the course of business the retailers would offer
financing to their customers. Citibank then originated or acquired those credit accounts and
receivables from the retailers by way of assignments that included the retailers’ rights to any
and all payments from the consumer and to claim ROTA tax refunds. In exchange, Citibank
would remit to the retailer the entire purchase price plus any applicable ROTA tax. Under these
facts, had the assignments not occurred and the retailers retained the accounts on which the
consumers defaulted, they would have been permitted to obtain a refund of the ROTA taxes
attributable to those portions of the defaulted accounts that were not collected, so long as they
deducted the debts on their federal taxes. Accordingly, because the retailers would have been
permitted to obtain a refund had they not assigned the accounts, Citibank, by stepping into the
retailers’ shoes via assignment, should also be permitted to obtain a refund.
¶ 41 The Department disagrees with this conclusion because, according to it, to take advantage
of the bad debt credit, the retailer must have either financed the sale itself or have a “with
recourse” agreement with a lender. There is no dispute that the latter does not apply because
the parties stipulated that the agreements between the retailers and Citibank were without
recourse. As to the former, however, the Department contends that the retailers did not finance
the transactions, Citibank did. Even assuming that the bad debt credit regulation requires that a
retailer self-finance, the parties’ stipulation indicates that is what happened here.
¶ 42 Admittedly, the stipulation of the parties does not specifically state whether the retailers
entered into financing agreements directly with the consumers and then sold the rights under
those agreements to Citibank or whether Citibank entered into financing agreements directly
with the consumer. The stipulation does state, however, that Citibank originated or acquired
the accounts from the retailers and that Citibank acquired all rights to payments from the
consumers and to ROTA refunds or credits by way of its agreements with the retailers. These
statements do not make sense unless the retailers entered into financing agreements with the
consumers directly and then sold and assigned their rights under those financing agreements to
Citibank in exchange for payment of the financed amount. After all, if Citibank had not
provided the financing directly to the consumer, there would have been nothing for the retailers
to assign to Citibank or for Citibank to acquire from the retailers. See People v. One 1999
Lexus, 367 Ill. App. 3d 687, 692-93 (2006) (stating that stipulations are contracts and that they
should not be interpreted in such a way so as to render any portion meaningless).
¶ 43 The Department also argues that retailers would not have been able to obtain a refund
because there is no evidence that any of the ROTA taxes were refunded to the consumers.
Section 6 of ROTA provides:
“No credit may be allowed or refund made for any amount paid by or collected from
any claimant unless it appears that the claimant has unconditionally repaid, to the
purchaser, any amount collected from the purchaser and retained by the claimant with
respect to the same transaction under the Use Tax Act.” 35 ILCS 120/6 (West 2014).
This language does not require a refund claimant to return any and all taxes collected from the
consumer before pursuing any refund whatsoever. Rather, it simply limits the refund a
claimant may seek to those taxes that were paid but not collected from the consumer. Those
taxes that were both paid to the State and collected from consumers, however, cannot be
refunded to claimants absent refunds being first issued to the consumers. Here, the parties
stipulated that the ROTA taxes were paid to the State, but that the consumers did not repay all
of the ROTA taxes, i.e., Citibank did not collect all of the taxes. The parties further stipulated
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that it is these uncollected taxes (as opposed to all of the ROTA taxes) for which Citibank
seeks a refund.
¶ 44 The Department’s contention that the retailers collected the entire amount of taxes from the
consumers and, therefore, a refund is unavailable unless the taxes are first refunded to the
consumers is unavailing. First, the retailers did not collect the taxes from the consumer; they
collected them from Citibank. Second, as previously discussed, as assignee, Citibank steps into
the shoes of the retailers, meaning that if there had been no assignment and the retailers
retained the defaulted accounts (and, thus, no deal with Citibank), the retailers would not have
been required to refund to the consumers taxes that the consumers had not paid in the first
place. Thus, Citibank is also not required to refund to the consumers taxes the consumers have
not actually paid. Instead, Citibank is simply limited to seeking a refund of those taxes that
remain uncollected.
¶ 45 Finally, the Department contends that Citibank is not entitled to a refund because it failed
to comply with the procedural application requirements of the applicable statutes and
regulations, namely, that it failed to provide information required under section 6a of ROTA
and failed to submit supporting documentation. More specifically, the Department argues that
(1) Citibank failed to identify the merchants that made the sales at issue; (2) represented that it
(as opposed to the retailers) had overpaid taxes in an amount that equated to a tax rate of 8%;
(3) signed the application form, stating that it had repaid any overpaid sales tax collected from
its customers; and (4) failed to submit documentary evidence in support of its claimed tax
overpayment.
¶ 46 According to the Department, this information was necessary to ensure that any refund
given to Citibank did not exceed the amount of the overpaid taxes. Although we agree that it is
important to ensure that any refunds issued are in the correct amount, there is no such concern
in this case, as the parties specifically stipulated that the amount Citibank sought to have
refunded was “the portion of balances that were written off as bad debts that is attributable to
the Retailers’ Occupation Tax.” Because the parties stipulated that the claimed refund amount
was equal to the amount of ROTA taxes not collected from the consumers, there was no need
for Citibank to provide additional information or evidence in support of this claim. One 1999
Lexus, 367 Ill. App. 3d at 691.
¶ 47 In sum, we conclude that Citibank does have standing to pursue a refund of the ROTA
taxes attributable to the uncollected debts as a result of the assignments from the retailers. Any
deficiency in Citibank’s application for refund or supporting documentation is moot, as the
Department stipulated to the amount of ROTA taxes attributable to the uncollected debt,
dispensing with the need for Citibank to present any other evidence on the issue.
¶ 48 Appeal No. 1-15-0812
¶ 49 Although the legal issues raised by Chrysler in appeal number 1-15-0812 are similar to
those raised in the Citibank appeal, we are unable to address them, as we lack jurisdiction over
this appeal. The Department argues that this Court lacks jurisdiction to consider Chrysler’s
appeal, because Chrysler failed to file a timely notice of appeal following the circuit court’s
entry of its March 14, 2014, order resolving Chrysler’s challenge to the Department’s denial of
its claim for a ROTA tax refund. Even if the Department had not raised a jurisdictional
challenge, we have a duty to consider our jurisdiction sua sponte and to dismiss if jurisdiction
is wanting. Revolution Portfolio, LLC v. Beale, 341 Ill. App. 3d 1021, 1024-25 (2003).
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¶ 50 To recap, on March 14, 2014, the circuit court issued its order upholding the Department’s
denial of Chrysler’s claim for a ROTA tax refund. Eight and a half months later, on November
25, 2014, Chrysler filed its section 2-1401 petition. On December 16, 2014, the circuit court
issued an order granting the section 2-1401 petition. Thereafter, on March 3, 2015, the circuit
court issued its supplemental opinion, which was identical to the March 14, 2014, order, except
that it contained a discussion of the ALJ’s disregard of the parties’ stipulation and a statement
that the time for appeal would begin to run from the entry of the supplemental opinion.
Chrysler filed its notice of appeal on March 19, 2015.
¶ 51 In its statement of jurisdiction on appeal, Chrysler claims that it filed its notice of appeal
within 30 days of the entry of the March 3, 2015, supplemental opinion, and, therefore, this
Court has jurisdiction under Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994), and
303(a)(1) (eff. Jan. 1, 2015). Rule 301 provides that every final judgment of a circuit court in a
civil case is appealable as of right. Rule 303(a)(1) requires that the notice of appeal from such
orders be filed within 30 days of the entry of the final judgment. To be final, an order must
dispose of the parties’ rights “either upon the entire controversy or upon such definite and
separate part thereof, such as a claim in a civil case.” (Internal quotation marks omitted.) State
Farm Fire & Casualty Co. v. John J. Rickhoff Sheet Metal Co., 394 Ill. App. 3d 548, 556
(2009).
¶ 52 On March 14, 2014, the circuit court issued its order upholding the Department’s denial of
Chrysler’s claim for a ROTA tax refund. This order fully disposed of Chrysler’s claim seeking
review of the Department’s determination that it was not entitled to a refund. Because the
court’s order resolved all pending claims against all parties in the case, it was a final and
appealable order. At that point, Chrysler had four options: file a timely posttrial motion within
30 days, file a timely notice of appeal within 30 days, do nothing and accept defeat, or file a
section 2-1401 petition within two years. Chrysler chose the last option, filing its section
2-1401 petition requesting that the circuit court address its argument regarding the ALJ’s
disregard of the stipulated amount of its claim.
¶ 53 Even so, we still lack jurisdiction to review Chrysler’s appeal. The circuit court granted
Chrysler’s section 2-1401 petition on December 16, 2014. This was a final order resolving that
section 2-1401 petition. Chrysler was obligated to file its appeal within 30 days of that date. It
did not.
¶ 54 Chrysler cannot rely on the entry of the March 3, 2015, supplemental opinion as the date
that triggered its obligation to file a notice of appeal. According to Chrysler, the supplemental
opinion was not related to the section 2-1401 petition, but instead was a modification of the
circuit court’s March 14, 2014, original opinion. This, however, means that the supplemental
opinion was entered without authority because it was entered more than 30 days after the
March 14, 2014, opinion. City of Chicago v. Heinrich, 187 Ill. App. 3d 876, 877-78 (1989);
Welch v. Ro-Mark, Inc., 79 Ill. App. 3d 652, 656-57 (1979). If the circuit court lacked
jurisdiction to enter the supplemental opinion, then we lack jurisdiction to review it. Keener v.
City of Herrin, 235 Ill. 2d 338, 350 (2009) (“Because the circuit court had no jurisdiction to
enter its order of August 25, 2006, the appellate court had no jurisdiction to review that
judgment.”).
¶ 55 We further note that the circuit court’s inclusion of a statement that the time for appeal
began to run as of the date the supplemental opinion has no effect on our analysis. The supreme
court rules determine when and how a timely notice of appeal is taken, and the circuit court
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lacks authority to extend that time. Meyer v. Blue Cab Co., 129 Ill. App. 3d 440, 441 (1984).
Moreover, as discussed above, the trial court lacked jurisdiction to modify the March 14, 2014,
opinion after 30 days, thus depriving us of any jurisdiction to review the supplemental opinion.
The trial court’s statement does not cure the trial court’s lack of jurisdiction to enter the
supplemental opinion and, accordingly, does not cure our lack of jurisdiction to review it.
¶ 56 Ultimately, no matter how we view it, we lack jurisdiction over Chrysler’s appeal. This is
fitting, as Chrysler seeks review of only those issues decided by the circuit court in the original
opinion, which was issued over a year before Chrysler filed its notice of appeal. If Chrysler
desired to appeal the circuit court’s judgment upholding the denial of Chrysler’s claim, it
should have done so within 30 days of that determination, i.e., by April 14, 2014. Its failure to
keep abreast of the status of its case, such that it did not learn of the entry of the circuit court’s
March 14, 2014, opinion until six and a half months later does not excuse Chrysler from the
duty to file a timely notice of appeal (see Mitchell, 158 Ill. 2d at 150). Accordingly, we
conclude that we lack jurisdiction to review it, and this appeal must be dismissed.
¶ 57 CONCLUSION
¶ 58 In appeal number 1-13-3650, we affirm the circuit court of Cook County’s judgment, as we
conclude that the assignments from the retailers afforded Citibank standing to pursue a refund
of the ROTA taxes attributable to the uncollected debt. Although Chrysler’s appeal involves
facts similar to those in Citibank’s appeal, including assignments from the retailers to Chrysler,
we are unable to afford Chrysler any relief from the ALJ’s decision in appeal number
1-15-0812, because we lack jurisdiction to address Chrysler’s contentions. Accordingly, we
dismiss that appeal.
¶ 59 Appeal No. 1-13-3650 affirmed.
¶ 60 Appeal No. 1-15-0812 dismissed.
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