Parmar v. Madigan , 75 N.E.3d 1064 ( 2017 )

2017 IL App (2d) 160286No. 2-16-0286
Opinion filed April 13, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_____________________________________________________________________________
PAMINDER S. PARMAR, Individually ) Appeal from the Circuit Court
and as Executor of the Estate of Surinder
) of Du Page County.
K. Parmar, )
)
Plaintiff-Appellant, )
)
v. ) No. 15-MR-1412
)
LISA MADIGAN, as Attorney General of )
the State of Illinois, and MICHAEL )
FRERICHS, as Treasurer of the State of )
Illinois, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Zenoff and Schostok concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Paminder S. Parmar, appeals the dismissal of his lawsuit seeking a declaratory
judgment concerning an amendment to the Illinois Estate and Generation-Skipping Transfer Tax
Act (Estate Tax Act) (35 ILCS 405/1 et seq. (West 2014)). We agree with plaintiff that the trial
court erred in dismissing his lawsuit as barred on grounds of sovereign immunity. We disagree
with defendants, Attorney General Lisa Madigan and Treasurer Michael Frerichs, that the
voluntary-payment doctrine provides an alternative ground for affirming the dismissal.
Consequently, we reverse the dismissal of the complaint and remand for further proceedings.
2017 IL App (2d) 160286¶2 I. BACKGROUND
¶3 Plaintiff’s decedent, Dr. Surinder K. Parmar, passed away on January 9, 2011. Due to
interplay between federal and Illinois law on taxation of estates, which we need not detail here,
Parmar’s estate was not subject to Illinois estate tax at the time of her death. In fact, since
January 1, 2010, there was effectively no Illinois estate tax. See 35 ILCS 405/2(b) (West 2010).
Public Act 96-1496, which was introduced as Senate Bill 2505 and became effective on January
13, 2011, revived the Illinois estate tax by amending section 2(b) of the Estate Tax Act (Pub. Act
96-1496 (eff. Jan. 13, 2011) (amending 35 ILCS 405/2(b))). By its terms, the amended section
2(b) applied retroactively to the estates of persons dying after December 31, 2010. 35 ILCS
405/2(b) (West 2014). This included Parmar’s estate.
¶4 In October 2015, plaintiff, as executor of Parmar’s estate, filed his “Complaint for a
Declaration of the Constitutionality of the Retroactive Application of the New Illinois Estate and
Generation-Skipping Transfer Tax Act under the Illinois Constitution and the United States
Constitution.” In addition to Attorney General Madigan and Treasurer Frerichs, plaintiff named
Constance Beard, Director of the Illinois Department of Revenue, and Governor Bruce Rauner.
Plaintiff identified Madigan as “responsible for administering and enforcing [the Estate Tax
Act],” Frerichs as “responsible for receiving and refunding monies collected pursuant to [the
Estate Tax Act],” Beard as “responsible for maximizing collections of revenues for the State of
Illinois in a manner that promotes fair and consistent enforcement of state laws,” and Rauner as
“responsible for enforcing the laws of the State of Illinois which includes [sic] the [Estate Tax
Act].” Plaintiff later voluntarily dismissed Beard and Rauner from the lawsuit.
¶5 Plaintiff’s complaint contained nine counts. Counts I and IX alleged improprieties in the
passage of Public Act 96-1496. Specifically, count I alleged that Senate Bill 2505 was not read
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2017 IL App (2d) 160286by title on three different days in each legislative house, in violation of the Illinois Constitution
(Ill. Const. 1970, art. IV, § 8). Count IX alleged that one of the promoters of Senate Bill 2505
misrepresented its substance on the floor of the House of Representatives. Citing no authority,
plaintiff alleged that the legislator’s misrepresentations invalidated the vote on Senate Bill 2505.
¶6 Counts II through VII concerned the substance of the amended section 2(b) of the Estate
Tax Act. Count II alleged that, under the interpretive dictates of the Statute on Statutes (5 ILCS
70/0.01 et seq. (West 2014)) and case law, the amended section 2(b) must be given prospective
effect only. Counts III through VII alleged that, if given retroactive application, the amended
section 2(b) would violate the due process and takings clauses of the Illinois and federal
constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §§ 2, 15) and the ex post
facto clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 16).
¶7 Finally, count VIII alleged that, since the amended section 2(b) could not lawfully be
applied retroactively, all administrative rules issued by Attorney General Madigan that assumed
the permissibility of retroactive application were invalid and ineffective.
¶8 Plaintiff alleged that he incurred “penalties and interest” on the tax he purportedly owed
on Parmar’s estate. Plaintiff paid the tax, penalties, and interest “[u]nder duress in order to avoid
additional penalties and interest.” As relief, plaintiff sought both a declaratory judgment as to
the lawful scope of the amended section 2(b) and a refund of amounts paid.
¶9 Defendants filed a joint motion to dismiss pursuant to section 2-619.1 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)), which permits a party to combine a
section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2014)) with a section 2-619 motion to
dismiss (735 ILCS 5/2-619 (West 2014)). For their section 2-619 motion to dismiss, defendants
raised two affirmative defenses. See id. (providing for involuntary dismissal based upon “certain
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2017 IL App (2d) 160286defects or defenses”). First, they asserted that section 1 of the State Lawsuit Immunity Act
(Immunity Act) (745 ILCS 5/1 (West 2014)) barred the proceeding in circuit court, leaving
plaintiff with recourse only in the Court of Claims. Second, they claimed that the suit was barred
under the voluntary-payment doctrine because, without duress, plaintiff had already paid the
estate tax as well as statutory interest.
¶ 10 To support the voluntary-payment defense, defendants submitted an affidavit from John
Flores, an assistant Attorney General with the Revenue Litigation Bureau. Flores averred that, in
September and October 2012, plaintiff paid the State a total of $559,973 in tax on the Parmar
estate. Also in October 2012, plaintiff filed an estate tax return, acknowledging liability for
$397,144 in tax, $99,286 in late filing penalties, $23,829 in late payment penalties, and $39,714
in interest (a total of $559,973). Flores noted that plaintiff paid these amounts before the
Attorney General had opened a file on Parmar’s estate, had asserted any liability, or had made
any payment demands. According to Flores, plaintiff later applied for and received a waiver of
penalties. After further adjustments, plaintiff was calculated to owe $388,068 in tax and $35,357
in interest. Flores supported his averments with attached documentation, including an estate tax
return filed by plaintiff. The return reported the gross value of Parmar’s estate at $5 million.
¶ 11 In addition to stating these two affirmative defenses, defendants claimed that several
counts in plaintiff’s complaint failed to state a claim upon which relief could be granted.
¶ 12 In his response, plaintiff claimed that the legislature clearly waived sovereign immunity
for lawsuits like the present one by enacting section 15(a) of the Estate Tax Act, which
authorizes a circuit court “to hear and determine all disputes in relation to a tax arising under
[the] Act.” 35 ILCS 405/15(a) (West 2014).
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2017 IL App (2d) 160286¶ 13 At a hearing on the motion to dismiss, the trial court determined that section 15(a) was
“not an explicit waiver of sovereign immunity” and that “proper jurisdiction is with the [C]ourt
of [C]laims.” The court dismissed the suit without prejudice to plaintiff refiling it in the Court of
Claims.
¶ 14 Plaintiff filed this timely appeal.
¶ 15 II. ANALYSIS
¶ 16 A. General Principles
¶ 17 Plaintiff’s complaint was dismissed pursuant to section 2-619 of the Code. A motion to
dismiss under section 2-619 “admits the legal sufficiency of the plaintiff’s claim but asserts
certain defects or defenses outside the pleadings which defeat the claim.” Sandholm v. Kuecker,
2012 IL 111443, ¶ 55. Statutory immunity is an affirmative defense, properly raised in a section
2-619 motion. Wilson v. City of Decatur, 389 Ill. App. 3d 555, 558 (2009). When ruling on a
section 2-619 motion, the court should construe the pleadings and supporting documents in the
light most favorable to the plaintiff, the nonmoving party. Id. The court must accept as true all
well-pleaded facts in the plaintiff’s complaint and all inferences that may reasonably be drawn in
the plaintiff’s favor. Sandholm, 2012 IL 111443, ¶ 55. The question on appeal is “ ‘whether the
existence of a genuine issue of material fact should have precluded the dismissal or, absent such
an issue of fact, whether dismissal is proper as a matter of law.’ ” Id. (quoting Kedzie & 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). Our review is de novo. Id.¶ 18 B. Sovereign Immunity
¶ 19 The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity “[e]xcept
as the General Assembly may provide by law.” Ill. Const. 1970, art. XIII, § 4. In response, the
General Assembly enacted the Immunity Act, section 1 of which states that, except as provided
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2017 IL App (2d) 160286in several statutory provisions—namely, section 1.5 of the Immunity Act (745 ILCS 5/1.5 (West
2014)) (concerning State employees), the Illinois Public Labor Relations Act (5 ILCS 315/1
et seq. (West 2014)), the Court of Claims Act (705 ILCS 505/1 et seq. (West 2014)), and the
State Officials and Employees Ethics Act (5 ILCS 430/1-1 et seq. (West 2014))—“the State of
Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1 (West 2014). For its
part, the Court of Claims Act states that the Court of Claims has exclusive jurisdiction to hear
“[a]ll claims against the State founded upon any law of the State of Illinois or upon any
regulation adopted thereunder by an executive or administrative officer or agency.” 705 ILCS
505/8(a) (West 2014).
¶ 20 The trial court agreed with defendants that section 15(a) of the Estate Tax Act is not a
waiver of sovereign immunity. There is a high bar for such waivers: they must be “clear and
unequivocal” to be effective. (Internal quotation marks omitted.) In re Special Education of
Walker, 131 Ill. 2d 300, 303 (1989). As plaintiff points out, however, sovereign immunity
applies in the first instance only where the State is actually made a party in the case. The
Immunity Act provides that “the State of Illinois” shall not be “made a defendant or party.” 745
ILCS 5/1 (West 2014). There is considerable case law on whether sovereign immunity applies
where a suit names not “the State as such” but rather a State officer or agency. See Leetaru v.
Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 43 (suit named not the State of
Illinois per se but the board of trustees of the University of Illinois and one of its associate vice
chancellors). As one might expect, sovereign immunity is not circumvented by simple party
designation. “[T]he State’s immunity cannot be evaded by naming an official or agent of the
State as the nominal party defendant.” Smith v. Jones, 113 Ill. 2d 126, 131 (1986). However,
under what the supreme court has termed the “officer-suit” exception, a suit against a State
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2017 IL App (2d) 160286officer or agency might not be tantamount to a suit against the State. See PHL, Inc. v. Pullman
Bank & Trust Co., 216 Ill. 2d 250, 261 (2005). At oral argument, we asked the parties if they
were prepared to discuss the officer-suit exception. Neither party felt adequately prepared to
address it. We proposed the possibility of additional briefing on the subject. We have since
decided against that course. Plaintiff cited the officer-suit exception in his brief. Although his
remarks were rather cursory, they were sufficient to raise the issue for our consideration.
Defendants had the opportunity to respond, but did not. We see no need to offer the parties a
second pass on the issue.
¶ 21 The supreme court’s most recent exposition of the officer-suit exception was in Leetaru:
“In determining whether sovereign immunity applies to a particular case, substance takes
precedence over form. [Citation.] That an action is nominally one against the servants or
agents of the State does not mean that it will not be considered as one against the State
itself. [Citation.] By the same token, the fact that the named defendant is an agency or
department of the State does not mean that the bar of sovereign immunity automatically
applies. In appropriate circumstances, plaintiffs may obtain relief in circuit court even
where the defendant they have identified in their pleadings is a state board, agency or
department. [Citations.]
Whether an action is in fact one against the State and hence one that must be
brought in the Court of Claims depends on the issues involved and the relief sought.
[Citation.] The prohibition against making the State of Illinois a party to a suit cannot be
evaded by making an action nominally one against the servants or agents of the State
when the real claim is against the State of Illinois itself and when the State of Illinois is
the party vitally interested. [Citation.] The doctrine of sovereign immunity affords no
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2017 IL App (2d) 160286protection, however, when it is alleged that the State’s agent acted in violation of
statutory or constitutional law or in excess of his authority, and in those instances an
action may be brought in circuit court. [Citation.] ***
This exception is premised on the principle that while legal official acts of state
officers are regarded as acts of the State itself, illegal acts performed by the officers are
not. In effect, actions of a state officer undertaken without legal authority strip the officer
of his official status. Accordingly, when a state officer performs illegally or purports to
act under an unconstitutional act or under authority which he does not have, the officer’s
conduct is not regarded as the conduct of the State. [Citation.] A suit may therefore be
maintained against the officer without running afoul of sovereign immunity principles.
[Citations.]
Of course, not every legal wrong committed by an officer of the State will trigger
this exception. For example, where the challenged conduct amounts to simple breach of
contract and nothing more, the exception is inapplicable. [Citation.] Similarly, a state
official’s actions will not be considered ultra vires for purposes of the doctrine merely
because the official has exercised the authority delegated to him or her erroneously. The
exception is aimed, instead, at situations where the official is not doing the business
which the sovereign has empowered him or her to do or is doing it in a way which the
law forbids. [Citation.]” (Emphases added and internal quotation marks omitted.)
Leetaru, 2015 IL 117485, ¶¶ 44-47.
¶ 22 Thus, the officer-suit exception applies when the state officer is alleged to “have acted in
violation of statutory or constitutional law or in excess of [the officer’s] authority.” Id. ¶ 50.
The exception does not apply where the plaintiff alleges a “simple breach of contract and nothing
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2017 IL App (2d) 160286more” or alleges that the officer “exercised the authority delegated to him or her erroneously.”
Id. ¶ 47.
¶ 23 This distinction is illustrated by comparing some cases. In Leetaru, the plaintiff, a
graduate student at the University of Illinois, sued state agents affiliated with the University.
The plaintiff alleged that the defendants’ investigation of potential research misconduct by the
plaintiff violated his due process rights as established by the University’s internal rules and
regulations. The supreme court held that the officer-suit exception applied:
“Defendants’ alleged acts and omissions *** involve far more than a mere difference of
opinion over how the rules and regulations should be interpreted or applied and are not
simply the result of some inadvertent oversight or a de minimis technical violation.
Rather, according to [the plaintiff], they constitute a fundamental disregard for core
provisions governing academic discipline at the University, thereby exceeding
defendants’ authority and violating [the plaintiff’s] constitutional rights to due process.”
Id. ¶ 49.
Thus, the court construed the complaint as alleging that the defendants “acted in violation of
statutory or constitutional law or in excess of their authority” (id. ¶ 50), and therefore the court
held that sovereign immunity did not apply.
¶ 24 In CGE Ford Heights, L.L.C. v. Miller, 306 Ill. App. 3d 431 (1999), several private
companies and a municipality brought two multi-count complaints against the Illinois Governor,
members of the Illinois Commerce Commission, and the Director of the Illinois Department of
Revenue. The counts all centered on Public Act 89-448 (eff. Mar. 14, 1998), which abolished
subsidies for tire burning plants. Some of the counts alleged breach of contract. The appellate
court held that these counts did not state a cause of action. The remaining counts alleged that
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2017 IL App (2d) 160286Public Act 89-448 was unconstitutional on various grounds. The appellate court held that some
of these counts failed as well, but not on grounds of sovereign immunity, as the allegations that
the defendants applied an unconstitutional provision brought the counts within the officer-suit
exception. Miller, 306 Ill. App. 3d at 436, 439-40.
¶ 25 Two cases finding the officer-suit exception not applicable are Healy v. Vaupel, 133 Ill.
2d 295 (1990), and Smith, 113 Ill. 2d 126. In Healy, the plaintiff sued several employees of
Northern Illinois University for injuries she suffered while participating as a member of the
University’s gymnastics team. The plaintiff alleged that her injuries were caused by the
defendants’ negligent performance of their duties. Since the plaintiff did not allege that the
defendants “acted outside the scope of their authority or in violation of law,” the officer-suit
exception did not apply. Healy, 133 Ill. 2d at 310-11.
¶ 26 In Smith, the plaintiffs sued the Illinois State Lottery and its director. They claimed that
the defendants misrepresented the prize pool for one of the state lotteries. The plaintiffs’ claims,
however, were strictly breach-of-contract claims. They did not allege that the defendants
“appl[ied] an unconstitutional statute *** [or] violated a law of Illinois.” Smith, 113 Ill. 2d at
132. Accordingly, sovereign immunity applied. Id.¶ 27 Plaintiff’s allegations here fall within the officer-suit exception. Plaintiff alleged that (1)
the amendment to section 2(b) of the Estate Tax Act was void ab initio because of procedural
improprieties and (2) at the very least, the amendment could not constitutionally be applied
retroactively to the estates of persons who, like Parmar, passed away before its effective date.
Thus, according to plaintiff, in enforcing the amended section 2(b) against Parmar’s estate,
defendants a fortiori acted unlawfully. This suit is a textbook instance of the officer-suit
exception.
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2017 IL App (2d) 160286¶ 28 Defendants point to the State Officers and Employees Money Disposition Act (the Protest
Fund Act) (30 ILCS 230/1 et seq. (West 2014)). The Protest Fund Act, as the supreme court has
noted, “allows taxpayers to recover voluntary tax payments if certain procedures are followed.”
Wexler v. Wirtz Corp., 211 Ill. 2d 18, 25 (2004). The process under the statute begins with the
taxpayer remitting payment, under protest, to the relevant state entity. Once that payment has
been placed into a special fund known as the protest fund, the taxpayer has 30 days to file a
complaint and obtain a temporary restraining order or preliminary injunction to bar the treasurer
from transferring the funds from the protest fund. If the taxpayer wins his challenge, the funds
are returned to him. If he loses, the funds are given to whatever governmental fund they would
have gone to if the taxpayer had not made the protest. 30 ILCS 230/2a (West 2014).
¶ 29 According to defendants, section 15(a) of the Estate Tax Law “makes no affirmative
waiver of the Immunity Act” but, rather, “merely recognizes that tax disputes under [the Estate
Tax Law] may be bought pursuant to [the Protest Fund Act].” Defendants contend that the
Protest Fund Act is the only waiver of sovereign immunity for tax challenges and that, since
plaintiff has not followed its procedures, his suit is barred. Defendants fail to recognize,
however, that if a suit is not actually against the State, there is no need for a waiver of sovereign
immunity. As noted, plaintiff’s allegations bring his action within the officer-suit exception and,
therefore, sovereign immunity is not implicated. Below (infra ¶ 33), we discuss the impact of
the Protest Fund Act on the voluntary-payment doctrine, which defendants cite here as an
alternative ground for affirming the dismissal.
¶ 30 For the foregoing reasons, we hold that the trial court erred in dismissing this action on
grounds of sovereign immunity.
¶ 31 C. Voluntary-Payment Doctrine
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2017 IL App (2d) 160286¶ 32 Defendants ask us to affirm the dismissal on the alternative ground that the voluntary-
payment doctrine applies. Defendants raised the defense below but the trial court did not address
it, finding a sufficient ground for dismissal in the doctrine of sovereign immunity.
¶ 33 “Under the voluntary-payment doctrine, a taxpayer may not recover taxes voluntarily
paid, even if the taxing body assessed or imposed the taxes illegally.” Geary v. Dominick’s
Finer Foods, Inc., 129 Ill. 2d 389, 393 (1989). “A taxpayer can only recover taxes voluntarily
paid if such recovery is authorized by statute.” Id. The Protest Fund Act, discussed previously
(supra ¶¶ 28-29), is one such means for recovery of taxes voluntarily paid. See 30 ILCS 230/1
et seq. (West 2014). For recovery of taxes paid involuntarily, a taxpayer need not use the Protest
Fund Act or any other statutory mechanism. Geary, 129 Ill. 2d at 395, 408 (the plaintiffs’
challenge to a municipal retail tax on female hygiene products did not need to proceed under the
Protest Fund Act, because the plaintiffs’ allegations established that they paid the tax under
duress). “A taxpayer *** has paid the taxes involuntarily if (1) the taxpayer lacked knowledge
of the facts upon which to protest the taxes at the time he or she paid the taxes, or (2) the
taxpayer paid the taxes under duress.” (Emphasis omitted.) Id. at 393. The disjunctive in the
foregoing indicates that either a lack of knowledge or the existence of duress will establish the
payment as involuntary. Raintree Homes, Inc. v. Village of Long Grove, 389 Ill. App. 3d 836,
858 (2009). A tax was paid under duress where “there was some necessity which amounted to
compulsion, and payment was made under the influence of such compulsion.” (Internal quotation
marks omitted.) Geary, 129 Ill. 2d at 393. “The issue of duress and compulsory payment
generally is one of fact to be judged in light of all the circumstances surrounding a transaction.”
Harris v. ChartOne, 362 Ill. App. 3d 878, 883 (2005). “However, where the facts are not in
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2017 IL App (2d) 160286dispute and only one valid inference concerning the existence of duress can be drawn from the
facts, the issue can be decided as a matter of law, including on a motion to dismiss.” Id.¶ 34 There are no factual disputes pertaining to the existence of duress. Defendants submitted
an affidavit from Flores describing plaintiff’s payment of tax and interest on Parmar’s estate.
Plaintiff did not dispute Flores’ averments, but claimed that duress was established by the Estate
Tax Act’s provision for penalties, interest, and personal liability. Under section 8(a) of the
Estate Tax Act (35 ILCS 405/8(a) (West 2014)), an unreasonable failure to file a required tax
return results in a monthly penalty of 5% of the tax to be reported, not to exceed 25%. Under
section 8(b) (35 ILCS 405/8(b) (West 2014)), an unreasonable failure to pay the tax due results
in a monthly penalty of 0.5% of the unpaid tax owed, not to exceed 25%. Section 9 (35 ILCS
405/9 (West 2014)) imposes interest at the rate of 9% per annum for the unpaid tax owed.
Finally, section 10(c) (35 ILCS 405/10(c) (West 2014)) provides that the individual required to
file the tax return, here plaintiff as executor of Parmar’s estate, is personally liable for the tax to
the extent of the transferred property.
¶ 35 We agree with plaintiff that the prospect of penalties, interest, and personal liability
amounted to duress. Plaintiff’s predicament was analogous to that of the plaintiffs in Ball v.
Village of Streamwood, 281 Ill. App. 3d 679 (1996), who brought a constitutional challenge to
the defendant municipality’s real estate transfer tax. The defendant raised the voluntary-payment
doctrine as a defense, noting that the plaintiffs had already paid the tax on their real estate
transfer. The trial court certified to the appellate court the question of whether the voluntary-
payment doctrine applied under the facts. The appellate court held that the doctrine did not
apply, because the defendant’s municipal code “provided civil penalties and fines for failure to
pay the tax.” Id. at 688.
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2017 IL App (2d) 160286¶ 36 The court in Ball did not indicate the severity of the potential penalties and fines. Here,
plaintiff reported the gross value of Parmar’s estate at $5 million. Statutory penalties and interest
computed on such an amount could be substantial (indeed, plaintiff was found to owe interest in
the amount of $35,357, though penalties were waived). Plaintiff also faced the prospect of
personal liability. We hold that plaintiff’s payment of the estate tax was not voluntary.
¶ 37 Defendants, however, claim that it is significant that plaintiff paid the tax, penalties, and
interest “without any communication from the State regarding [Parmar’s] tax liability.”
Defendants do not elaborate. We see no indication in the Estate Tax Act that such
“communication” is a prerequisite under the Estate Tax Act for penalties, interest, or personal
liability.
¶ 38 Defendants further assert that “even if [plaintiff] had received demand letters from the
State or threats of litigation asserting an incorrect tax liability, those would not have constituted
legal ‘duress’ sufficient to warrant an exception to the voluntary payment doctrine.” For this
assertion defendants cite Goldstein Oil Co. v. County of Cook, 156 Ill. App. 3d 180 (1987). In
that case, the plaintiffs, partners in a gasoline supply company, sued to recoup gasoline taxes
paid to Cook County. The plaintiffs named Cook County itself, as well as its auditor and its
collector. The plaintiffs alleged that their company was not the party responsible for the tax.
They claimed that they paid the tax because of the auditor’s statements to the plaintiffs that, if
the tax were not paid, the auditor would refer the matter to the State’s Attorney for litigation and
seek to shut down the plaintiffs’ storage facility. The trial court dismissed the suit, finding that
the voluntary-payment doctrine applied. The appellate court agreed. The court determined that
the plaintiffs’ allegations of duress were insufficient because (1) the threat of litigation was
evidently made in good faith and (2) the threat to close down the storage facility was made 10
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2017 IL App (2d) 160286months before the plaintiffs paid the tax and the defendants took no action in the intervening
time. Id. at 183-85.
¶ 39 The facts of Goldstein are not comparable to the facts here. There was no mention in
Goldstein of any penalties, interest, or other such sanction that the plaintiffs faced for failing to
pay the gasoline tax. In fact, Goldstein distinguished cases in which parties faced “immediate
economic threat,” such as severe monetary penalties, for failure to pay a tax or fee. Id. at 184
(citing Edward P. Allison Co. v. Village of Dolton, 24 Ill. 2d 233, 236 (1962) (the plaintiff risked
stoppage of its business and “severe penalties” if it failed to pay the defendant village an
electrical contractor license fee)); see also People ex rel. Carpentier v. Treloar Trucking Co., 13
Ill. 2d 596, 599 (1958) (“[W]here money is paid under pressure of severe statutory penalties or
disastrous effect to business, it is held that the payment is involuntary and that the money may be
recovered.”).
¶ 40 The pleadings and undisputed facts establish that plaintiff paid the estate tax under duress
and, hence, involuntarily. Accordingly, plaintiff was not required to seek recovery under the
Protest Fund Act, and the voluntary-payment doctrine is not an alternative basis for affirming the
dismissal of plaintiff’s complaint.
¶ 41 III. CONCLUSION
¶ 42 For the foregoing reasons, we reverse the dismissal of plaintiff’s complaint and remand
for further proceedings.
¶ 43 Reversed and remanded.
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