Linn v. The Deparrtment of Revenue , 2013 IL App (4th) 121055 ( 2014 )


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  •                                   Illinois Official Reports
    Appellate Court
    Linn v. Department of Revenue, 
    2013 IL App (4th) 121055
    Appellate Court              LEWIS LINN, as Trustee of the Autonomy Trust 3, Plaintiff-
    Caption                      Appellant, v. THE DEPARTMENT OF REVENUE; BRIAN
    HAMER, in His Official Capacity as Director of The Department of
    Revenue; and DAN RUTHERFORD, in His Official Capacity as
    Treasurer of the State of Illinois, Defendants-Appellees.
    District & No.               Fourth District
    Docket No. 4-12-1055
    Filed                        December 18, 2013
    Held                         In an action seeking the return of a 2006 income-tax payment made
    (Note: This syllabus         under protest by plaintiff trustee on behalf of a trust on the ground that
    constitutes no part of the   the trust had no connection with Illinois and that taxation of the trust
    opinion of the court but     was unconstitutional, the appellate court reversed the entry of
    has been prepared by the     summary judgment for defendants, including the Illinois Department
    Reporter of Decisions        of Revenue, because taxation of the trust by Illinois would violate due
    for the convenience of       process where the trust was an inter vivos trust, it was not a
    the reader.)                 testamentary trust under the jurisdiction of an Illinois probate court,
    and although the predecessors of the trust were related to Illinois, the
    choice of law provision of the trust provided for the application of
    Texas law, the trust had the benefits and protections of Texas law, the
    trust had nothing in Illinois in 2006, its business was all in Texas, the
    trustee, the protector, and the noncontingent beneficiary resided
    outside Illinois, no trust property was in Illinois, and the trust met none
    of the criteria that would give Illinois personal jurisdiction in litigation
    involving the trust.
    Decision Under               Appeal from the Circuit Court of Sangamon County, No.
    Review                       07-TX-0001/01; the Hon. John Schmidt, Judge, presiding.
    Judgment                  Reversed and remanded with directions.
    Counsel on                Fred O. Marcus (argued) and David S. Ruskin, both of Horwood
    Appeal                    Marcus & Berk Chtrd., of Chicago, and Alan Y. Ytterberg, of
    Ytterberg Deery Knull LLP, of Houston, Texas, for appellant.
    Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
    Solicitor General, and Evan Siegel (argued), Assistant Attorney
    General, of counsel), for appellees.
    Panel                     JUSTICE TURNER delivered the judgment of the court, with opinion.
    Justices Knecht and Steigmann concurred in the judgment and
    opinion.
    OPINION
    ¶1         In May 2007, plaintiff, Lewis Linn, as trustee of the Autonomy Trust 3, filed a verified
    complaint for declaratory and injunctive relief against defendants, the Department of Revenue
    (Department); Brian Hamer, as the Department’s director; and Dan Rutherford, as the Illinois
    Treasurer. Plaintiff’s complaint sought the return of an income-tax payment it had made under
    protest because any income taxation on the Autonomy Trust 3 was unconstitutional as the trust
    had no connections with Illinois. The parties filed cross-motions for summary judgment. After
    memoranda and oral arguments, the Sangamon County circuit court granted defendants’
    motion for summary judgment and denied plaintiff’s.
    ¶2         Plaintiff appeals, arguing the trial court erred in granting summary judgment in defendants’
    favor because (1) the Illinois choice-of-law provision in the original trust agreement does not
    apply to the Autonomy Trust 3, and (2) the imposition of Illinois income taxation on the
    Autonomy Trust 3 is unconstitutional as it violates both the due process and commerce clauses.
    We reverse and remand with directions.
    ¶3                                        I. BACKGROUND
    ¶4         In March 1961, A.N. Pritzker entered into a trust agreement establishing “P.G. Trusts”
    with trustee Meyer Goldman, in which 20 separate, irrevocable trusts were created. At the time
    of the agreement, both A.N. and Goldman were Illinois residents, and the trust assets were
    deposited in Illinois. Article IX of the March 1961 trust agreement allowed the trustee to
    distribute the whole or part of the corpus of the trust to a different trustee or trustees to hold in
    further trust for the exclusive benefit of the beneficiary of each of the 1961 trusts. Article V,
    section 2(b), also gave the trustee the power, in his discretion, to distribute the whole or part of
    the trust corpus to its beneficiary after the beneficiary had attained 30 years of age. Further,
    -2-
    article XIV of the March 1961 agreement stated the following: “This Agreement shall be
    construed and administered and the validity of the trusts hereby created shall be determined in
    accordance with the laws of the State of Illinois.” One of the trusts was for the primary benefit
    of A.N.’s granddaughter Linda Pritzker and was named the “Linda Trust.”
    ¶5        Beginning in 1968, other adult beneficiaries of the P.G. Trusts (not Linda) created a new
    set of trusts called the A.N.P. Trusts with assets from the P.G. Trusts. In 1975, Goldman filed a
    complaint, addressing, inter alia, the adult beneficiaries’ right to transfer their interests to the
    A.N.P. Trusts. Goldman v. Pritzker, No. 75-CH-4214 (Cir. Ct. Cook Co.). In June 1977, the
    circuit court entered a lengthy order granting the relief requested in Goldman’s complaint, as
    amended, and thus approving the creation of the A.N.P. Trusts. In the written order, the court
    retained jurisdiction of the cause and parties for the purpose of paying the fees, costs, and
    expenses of the proceedings and for any further orders necessary to interpret or implement the
    provisions of the court’s order.
    ¶6        A.N. died in 1986 as an Illinois resident, and his estate was probated in Illinois. At some
    point, Thomas Pritzker of Illinois, Marshall Eisenberg of Illinois, and Arnold Weber
    succeeded Goldman as trustees of the Linda Trust and were the trustees of the Linda Trust in
    2002. (In 2008, the trustees of the Linda Trust still included two Illinois residents and one
    nonresident.) On January 2, 2002, the trustees of the Linda Trust exercised their limited power
    of appointment contained in articles V and IX of the March 1961 trust agreement and
    irrevocably distributed assets from the Linda Trust to plaintiff, as trustee of the Autonomy
    Trust 3, for the exclusive benefit of Linda.
    ¶7        Along with the power of appointment, the trustees of the Linda Trust and plaintiff entered
    into a trust agreement that created the Autonomy Trust 3. Provision 9 of the January 2002 trust
    agreement named Jay Robert Pritzker of Illinois as protector of the trusts created hereunder.
    We note that Jay was replaced as protector of the Autonomy Trust 3 in December 2002 by
    Basil Zirinis of Connecticut. Moreover, provision 14 of the January 2002 trust agreement
    contained the perpetuities savings clause and referenced the lives of those named in the March
    1961 trust agreement. Last, provision 15 stated the Autonomy Trust 3 was to be construed and
    regulated under Texas law, “except that the terms ‘income,’ ‘principal,’ and ‘power of
    appointment’ and the provisions relating thereto shall be interpreted under the laws of the state
    of Illinois.”
    ¶8        In February 2004, plaintiff filed a complaint in the probate court of Harris County, Texas,
    seeking reformation of provision 15 of the Autonomy Trust 3 and other trusts that applied
    Illinois law to some of their terms. Plaintiff sought to strike the language referring to Illinois
    law, leaving the trusts to be construed and regulated by only Texas law. On November 4, 2005,
    the probate court entered an order, granting the relief plaintiff requested. However, the
    judgment stated the following: “This Judgment shall become effective as to each of the Trusts
    as of the date that the Internal Revenue Service issues a favorable ruling holding that the
    modifications and declarations of this Judgment to the Trust do not result in the loss of such
    Trust’s generation-skipping transfer tax exempt status or otherwise subject such Trust to the
    generation-skipping transfer tax.”
    -3-
    ¶9         In 2006, Linda, her children, and the other contingent beneficiaries of the Autonomy Trust
    3 were not Illinois residents. Plaintiff resided in Texas, and the Autonomy Trust 3 was
    administered in Texas. The Autonomy Trust 3 had no assets in Illinois.
    ¶ 10       In April 2007, the Autonomy Trust 3 filed a 2006 nonresident Illinois income and
    replacement tax return, reporting no income from Illinois sources and thus no tax was owed.
    The Department reclassified the Autonomy Trust 3 as an Illinois resident under section
    1501(a)(20)(D) of the Illinois Income Tax Act (Tax Act) (35 ILCS 5/1501(a)(20)(D) (West
    2006)), taxed 100% of the trust’s reported income, and assessed a deficiency liability of
    $2,729. Pursuant to section 2a of the State Officers and Employees Money Disposition Act (30
    ILCS 230/2a (West 2006)), the Autonomy Trust 3 paid the $2,729 in income tax under protest.
    ¶ 11       In May 2007, plaintiff filed the verified complaint for declaratory and injunctive relief,
    asserting Illinois’s imposition of income tax on the Autonomy Trust 3 violates the commerce,
    due process, and equal protection clauses of the United States Constitution (U.S. Const., art. I,
    § 8; amend. XIV, § 1) and the uniformity clause of the Illinois Constitution of 1970 (Ill. Const.
    1970, art. IX, § 2). Former Illinois Treasurer Alexi Giannoulias was originally listed as one of
    the defendants and was later replaced by current Illinois Treasurer Dan Rutherford when
    Giannoulias’s term ended.
    ¶ 12       In September 2011, plaintiff filed a motion for summary judgment with a supporting
    memorandum. Along with the memorandum, plaintiff submitted a declaration by him and one
    by Zirinis. In his declaration, plaintiff states the Texas probate court’s judgment became
    effective on November 4, 2005, the date it was entered. Zirinis stated the duties of the
    Autonomy Trust 3’s protector include the power to remove any trustee, revoke the designation
    of a successor trustee, and appoint a successor protector.
    ¶ 13       In May 2012, defendants filed a cross-motion for summary judgment and a response to
    plaintiff’s motion for summary judgment. Defendants first asserted the case could be decided
    on nonconstitutional grounds and argued (1) the grantor of the Autonomy Trust 3 voluntarily
    established all of the trusts and subsequent trusts pursuant to Illinois law, (2) the Texas probate
    court judgment is not binding on this court, and (3) the Department assessed tax on the
    Autonomy Trust 3 in accordance with Illinois statutes. Defendants then argued the income tax
    on the Autonomy Trust 3 was constitutional. In support of their motion, defendants attached
    the following: (1) the March 1961 trust agreement; (2) plaintiff’s first response to defendants’
    interrogatories (in interrogatory No. 9, plaintiff states the Internal Revenue Service had not
    issued a ruling regarding the generation-skipping transfer tax); (3) plaintiff’s response to
    defendants’ second set of supplemental interrogatories; (4) plaintiff’s response to defendants’
    request to admit; (5) the January 2002 trust agreement; (6) the exercise of the power of
    appointment establishing the Autonomy Trust 3; (7) plaintiff’s response to defendants’ first
    supplemental interrogatories; (8) plaintiff’s petition in the Texas probate court; and (9) the
    Texas probate court judgment. In July 2012, plaintiff filed a memorandum in response to
    defendants’ cross-motion for summary judgment and did not attach any supporting documents.
    In September 2012, defendants filed a reply, attaching the June 1977 judgment of the Cook
    County circuit court.
    -4-
    ¶ 14       On October 12, 2012, the trial court heard oral arguments on the cross-motions for
    summary judgment. Twelve days later, the court entered a written order, granting defendants’
    motion for summary judgment and denying plaintiff’s. In reaching that judgment, the court
    found the March 1961 trust agreement provided Illinois law was to govern the trust agreement
    and any trusts hereby created, which would include the Autonomy Trust 3. The court then
    concluded the fact Illinois law governed the Autonomy Trust 3 was a sufficient contact to
    satisfy the due process and commerce clauses.
    ¶ 15       On November 9, 2012, plaintiff filed a timely notice of appeal, which was in sufficient
    compliance with Illinois Supreme Court Rule 303 (eff. May 30, 2008), despite its failure to list
    the Department as a defendant. See Harry W. Kuhn, Inc. v. County of Du Page, 
    203 Ill. App. 3d 677
    , 684-85, 
    561 N.E.2d 458
    , 463 (1990) (finding the failure to list all of the defendants in
    notice of appeal did not render the notice fatally defective where the defendants were all
    represented by the same attorney and the appellee did not suffer prejudice). Thus, this court has
    jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).
    ¶ 16                                        II. ANALYSIS
    ¶ 17                                    A. Summary Judgment
    ¶ 18        A grant of summary judgment is only appropriate when the pleadings, depositions,
    admissions, and affidavits demonstrate no genuine issue of material fact exists and the movant
    is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010); Williams v.
    Manchester, 
    228 Ill. 2d 404
    , 417, 
    888 N.E.2d 1
    , 8-9 (2008). “ ‘As in this case, where the
    parties file cross-motions for summary judgment, they invite the court to decide the issues
    presented as a matter of law.’ ” A.B.A.T.E. of Illinois, Inc. v. Giannoulias, 
    401 Ill. App. 3d 326
    ,
    330, 
    929 N.E.2d 1188
    , 1192 (2010) (quoting Liberty Mutual Fire Insurance Co. v. St. Paul
    Fire & Marine Insurance Co., 
    363 Ill. App. 3d 335
    , 339, 
    842 N.E.2d 170
    , 173 (2005)). We
    review de novo the trial court’s ruling on a motion for summary judgment. See 
    Williams, 228 Ill. 2d at 417
    , 888 N.E.2d at 9.
    ¶ 19                                     B. Illinois Income Tax
    ¶ 20        The starting point for income taxation in Illinois is section 201(a) of the Tax Act (35 ILCS
    5/201(a) (West 2006)), which provides, in relevant part: “A tax measured by net income is
    hereby imposed on every individual, corporation, trust and estate *** on the privilege of
    earning or receiving income in or as a resident of this State.” (Emphases added.) See also
    Rockwood Holding Co. v. Department of Revenue, 
    312 Ill. App. 3d 1120
    , 1123-24, 
    728 N.E.2d 519
    , 523 (2000). For residents, “[a]ll items of income or deduction which were taken into
    account in the computation of base income for the taxable year by a resident shall be allocated
    to this State.” 35 ILCS 5/301(a) (West 2006). Section 1501(a)(20)(D) of the Tax Act (35 ILCS
    5/1501(a)(20)(D) (West 2006)) defines “resident,” in pertinent part, as “[a]n irrevocable trust,
    the grantor of which was domiciled in this State at the time such trust became irrevocable.” The
    parties agree the Autonomy Trust 3 is an irrevocable trust, and A.N. Pritzker, who was an
    Illinois resident, is considered to be the grantor of the Autonomy Trust 3. Thus, under the Tax
    Act, the Autonomy Trust 3 is an Illinois resident and subject to Illinois income tax.
    -5-
    ¶ 21       On appeal, the parties now agree this case cannot be resolved on a nonconstitutional basis.
    Thus, we turn to plaintiff’s allegations of constitutional violations. Plaintiff asserts the
    imposition of Illinois income tax on the Autonomy Trust 3 is unconstitutional as applied to the
    trust as it violates both the due process and the commerce clauses. “In undertaking our review,
    we presume that statutory enactments are constitutional. The burden is on the party
    challenging the statute to clearly establish any constitutional invalidity. The burden is a
    formidable one, and this court will uphold a statute’s validity whenever it is reasonably
    possible to do so.” Allegis Realty Investors v. Novak, 
    223 Ill. 2d 318
    , 334, 
    860 N.E.2d 246
    , 255
    (2006).
    ¶ 22                                           1. Due Process
    ¶ 23        For a tax to comply with the due process clause, (1) a minimum connection must exist
    between the state and the person, property, or transaction it seeks to tax, and (2) “the income
    attributed to the State for tax purposes must be rationally related to values connected with the
    taxing State.” (Internal quotation marks omitted.) Quill Corp. v. North Dakota, 
    504 U.S. 298
    ,
    306 (1992) (quoting Moorman Manufacturing Co. v. Bair, 
    437 U.S. 267
    , 273 (1978)). In Quill
    
    Corp., 504 U.S. at 307-08
    , the Supreme Court equated that analysis with the determination of
    whether a state has personal jurisdiction over a given entity. After analyzing the case law
    regarding personal jurisdiction, the Quill Corp. Court held the due process clause did not
    require physical presence in a state for the collection of a use tax. Quill 
    Corp., 504 U.S. at 308
    .
    There, the company’s ongoing solicitation of business in North Dakota was more than enough
    to subject it to North Dakota’s use tax. Quill 
    Corp., 504 U.S. at 308
    .
    ¶ 24        Plaintiff asserts the Autonomy Trust 3 has no connections to Illinois. He notes the
    Autonomy Trust 3 is a Texas trust that is governed by the laws of and administered in Texas.
    Moreover, in 2006, the Autonomy Trust 3’s trustee, beneficiary, and protector were all not
    residents of Illinois. Without any connections to Illinois, the imposition of Illinois income tax
    on the Autonomy Trust 3 would be unconstitutional under the due process clause. Plaintiffs
    have shown no connections appear to exist with the trust in this case. However, defendants
    contend connections do exist because (1) the Autonomy Trust 3 owes its existence to Illinois,
    and (2) Illinois provides the Autonomy Trust 3’s trustee and beneficiary with a panoply of
    legal benefits and opportunities. We note that, on appeal, defendants do not argue that, in 2006,
    the Autonomy Trust 3 still contained terms to be interpreted under Illinois law and that the
    Illinois choice of law provision in the March 1961 agreement applies to the Autonomy Trust 3.
    ¶ 25        Both parties cite the Connecticut Supreme Court’s decision in Chase Manhattan Bank v.
    Gavin, 
    733 A.2d 782
    (Conn. 1999), which was decided after the United States Supreme
    Court’s Quill Corp. decision. There, the plaintiffs asserted Connecticut’s income taxation on
    the undistributed taxable income of four testamentary trusts and one inter vivos trust was
    unconstitutional because it violated the due process and commerce clauses. 
    Gavin, 733 A.2d at 785-86
    . Since the case before us involves an inter vivos trust, we focus on the facts and
    analysis related to the inter vivos trust. Under Connecticut law, a resident inter vivos trust is
    “ ‘a trust, or a portion of a trust, consisting of the property of (i) a person who was a resident of
    this state at the time the property was transferred to the trust if the trust was then irrevocable.’ ”
    -6-
    
    Gavin, 733 A.2d at 789
    (quoting Conn. Gen. Stat. § 12-701(a)(4)(D) (1993)). However, with
    an inter vivos trust, taxable income is then modifiable under a formula that takes into account
    whether the trust has any resident, noncontingent beneficiaries. 
    Gavin, 733 A.2d at 790
    . Thus,
    Connecticut taxes only that portion of the inter vivo trust’s undistributed income that
    corresponds to the number of noncontingent beneficiaries that live in Connecticut. 
    Gavin, 733 A.2d at 790
    . Accordingly, in 
    Gavin, 733 A.2d at 790
    , the taxability of the inter vivos trust’s
    income was based on the facts the trust’s settlor was a Connecticut resident when he
    established the trust and the trust’s beneficiary was a Connecticut resident.
    ¶ 26       Regarding due process, the Connecticut Supreme Court found the critical link between
    Connecticut and the undistributed income sought to be taxed was the fact the inter vivos trust’s
    noncontingent beneficiary was a Connecticut resident during the tax year in question. 
    Gavin, 733 A.2d at 802
    . It explained that, as a Connecticut resident, the noncontigent beneficiary’s
    rights to the eventual receipt and enjoyment of the accumulated income were protected by
    Connecticut law so long as the beneficiary remained a resident of the state. 
    Gavin, 733 A.2d at 802
    . The Gavin court recognized the connection was “more attenuated” than in the case of a
    testamentary trust but still found the connection was sufficient to satisfy due process. 
    Gavin, 733 A.2d at 802
    .
    ¶ 27       In support of its conclusion, the Gavin court noted the United State Supreme Court had
    held a state may tax the undistributed income of a trust based on the presence of the trustee in
    the state because it gave the trustee the protection and benefits of its laws (Greenough v. Tax
    Assessors, 
    331 U.S. 486
    , 496 (1947)), which are the same benefits and protections provided a
    resident, noncontingent beneficiary. 
    Gavin, 733 A.2d at 802
    . The Gavin court also noted its
    conclusion was consistent with the California Supreme Court’s decision in McCulloch v.
    Franchise Tax Board, 
    390 P.2d 412
    (Cal. 1964). 
    Gavin, 733 A.2d at 802
    . There, the California
    Supreme Court did not find a due-process violation where California taxed the undistributed
    income of an out-of-state testamentary trust based solely on the California residence of the
    trust’s beneficiary. 
    McCulloch, 390 P.2d at 418
    . It reasoned California law provided benefit
    and protection to the resident beneficiary. 
    McCulloch, 390 P.2d at 418
    -19.
    ¶ 28       Defendants begin their argument the Autonomy Trust 3 owes its existence to Illinois by
    noting the trust’s grantor was an Illinois resident. In support of that argument, they cite
    portions of the Gavin opinion that found the grantor’s in-state residency was sufficient to
    establish a minimum contact as to the four testamentary trusts as well as other case law
    addressing testamentary trusts. However, we are dealing with an inter vivos trust. Since an
    inter vivos trust is not created by the probate of the decedent’s will in a state court, its
    connection with the state has been described as more attenuated than a testamentary trust.
    
    Gavin, 733 A.2d at 802
    ; District of Columbia v. Chase Manhattan Bank, 
    689 A.2d 539
    , 547
    n.11 (D.C. 1997). Moreover, an irrevocable inter vivos trust does not owe its existence to the
    laws and courts of the state of the grantor in the same way a testamentary trust does and thus
    does not have the same permanent tie. District of 
    Columbia, 689 A.2d at 547
    n.11. With the
    inter vivos trust, the Connecticut Supreme Court found the critical link between the state and
    the inter vivos trust was the trust’s noncontingent beneficiary was a Connecticut resident
    during the tax year in question. 
    Gavin, 733 A.2d at 802
    . Autonomy Trust 3 does not have a
    -7-
    noncontingent beneficiary in Illinois. Defendants cite no cases finding a grantor’s in-state
    residency is a sufficient connection for due process with an inter vivos trust.
    ¶ 29       On the other hand, we note decisions from other states have found the grantor’s in-state
    residence insufficient to establish a minimum connection. In Blue v. Department of Treasury,
    
    462 N.W.2d 762
    , 764 (Mich. Ct. App. 1990), the Michigan appellate court found insufficient
    connections between an inter vivos trust whose grantor was a Michigan resident and the State
    of Michigan’s imposition of an income tax. There, the only thing in Michigan was one
    non-income-producing parcel of real estate, and thus the court concluded Michigan provided
    no ongoing protection or benefit to the trust. 
    Blue, 462 N.W.2d at 764
    . In Mercantile-Safe
    Deposit & Trust Co. v. Murphy, 
    242 N.Y.S.2d 26
    , 28 (N.Y. App. Div. 1963), a New York
    appellate court found a due process violation where New York imposed an income tax on
    income accumulated in a trust created by a New York resident where the trustee resided in
    Maryland, the trust was administered in Maryland, and trust assets were in the trustee’s
    exclusive possession and control in Maryland. Accordingly, we find the fact the Autonomy
    Trust 3’s grantor was an Illinois resident is not a sufficient connection to satisfy due process.
    ¶ 30       Defendants further argue the Autonomy Trust 3 exists only because of Illinois law.
    However, Autonomy Trust 3 resulted from a January 2002 exercise of the limited power of
    appointment by the trustee of the P.G. Linda Trust, which was provided for in the March 1961
    trust agreement. Assuming arguendo, an Illinois court ruling validated a provision of the
    March 1961 agreement that allowed for the limited power of appointment that was later
    invoked to create the Autonomy Trust 3, the Autonomy Trust 3 was created by the provisions
    of the March 1961 agreement allowing for powers of appointment and not Illinois law. Further,
    with income taxation, the focus of the due process analysis is on the tax year in question, which
    would be 2006 in this case. See 
    Gavin, 733 A.2d at 802
    (noting the connection for the inter
    vivos trust was the fact a noncontingent beneficiary was an in-state resident during the tax year
    in question); see also In re Swift, 
    727 S.W.2d 880
    , 882 (Mo. 1987) (addressing income taxation
    on a testamentary trust and stating, “An income tax is justified only when contemporary
    benefits and protections are provided the subject property or entity during the relevant taxing
    period”). Thus, what happened historically with the trust in Illinois courts and under Illinois
    law has no bearing on the 2006 tax year.
    ¶ 31       Additionally, defendants argue the State of Illinois provides the trustee and beneficiary of
    the Autonomy Trust 3 with a panoply of legal benefits and opportunities. In support of its
    assertion, it again cites case law addressing testamentary trusts. See 
    Gavin, 733 A.2d at 799
    ;
    District of 
    Columbia, 689 A.2d at 544
    . As we have stated, this case involves an inter vivos
    trust, not a testamentary trust. The Autonomy Trust 3 was not in existence when A.N. Pritzker
    died and thus was not part of his probate case. Accordingly, no Illinois probate court has
    jurisdiction over the Autonomy Trust 3, unlike in the testamentary trust cases.
    ¶ 32       Defendants also cite several Illinois statutory provisions and claim the Autonomy Trust 3,
    plaintiff, Linda, or a contingent beneficiary can seek those statutory provisions at any time.
    However, the parties agree that, after the November 2005 Texas reformation order, the
    Autonomy Trust 3 choice of law provision provided for only the application of Texas law.
    Further, as stated earlier, the 1977 Cook County case has no application at all to the Autonomy
    -8-
    Trust 3 because it dealt with beneficiary powers of appointment, not trustee powers of
    appointment in the March 1961 trust agreement. Accordingly, we find the Autonomy Trust 3
    receives the benefits and protections of Texas law, not Illinois law.
    ¶ 33        Last, we note the company in Quill Corp. mailed catalogs into North Dakota, seeking
    business there. Quill 
    Corp., 504 U.S. at 302
    . Here, in 2006, the Autonomy Trust 3 had nothing
    in and sought nothing from Illinois. As plaintiff notes, all of the trust’s business was conducted
    in Texas; the trustee, protector, and the noncontingent beneficiary resided outside Illinois; and
    none of the trust’s property was in Illinois. Moreover, the Autonomy Trust 3 meets none of the
    following factors that would give Illinois personal jurisdiction over the trust in a litigation: “the
    provisions of the trust instrument, the residence of the trustees, the residence of its
    beneficiaries, the location of the trust assets, and the location where the business of the trust is
    to be conducted.” Sullivan v. Kodsi, 
    359 Ill. App. 3d 1005
    , 1011, 
    836 N.E.2d 125
    , 131 (2005)
    (citing People v. First National Bank of Chicago, 
    364 Ill. 262
    , 268, 
    4 N.E.2d 378
    , 380 (1936)).
    Accordingly, we find insufficient contacts exist between Illinois and the Autonomy Trust 3 to
    satisfy the due process clause, and thus the income tax imposed on the Autonomy Trust 3 for
    the tax year 2006 was unconstitutional. Thus, summary judgment should have been granted in
    plaintiff’s favor.
    ¶ 34                                   2. Commerce Clause
    ¶ 35      Since we have found the income taxation of the Autonomy Trust 3 in 2006 violates the due
    process clause, we do not address plaintiff’s commerce clause argument.
    ¶ 36                                   III. CONCLUSION
    ¶ 37      For the reasons stated, we reverse the Sangamon County circuit court’s judgment and
    remand the cause for that court to enter an order granting plaintiff’s summary-judgment
    motion and denying defendants’.
    ¶ 38       Reversed and remanded with directions.
    -9-