25 N.E.2d 811 | Ill. | 1940
February 20, 1939, this court awarded a writ of mandamus to William Blome and forty-six other construction contractors commanding the Director of Finance, the Auditor of Public Accounts and the State Treasurer to issue cash refunds, or credit memoranda, of the respective amounts of occupation taxes erroneously paid by the petitioners and erroneously collected by the Department of Finance. (People v. Nudelman,
The decisive issue made by the pleadings in each action is whether there is an appropriation out of which petitioners' claims can be paid. Section 6 of the Retailers' Occupation *224
Tax act (Ill. Rev. Stat. 1939, chap. 120, par. 445, p. 2673) provides: "If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this act from the person who made the erroneous payment, or such amount shall be refunded to such person by the Department." Article 19 of the departmental rules captioned "Credit for overpayment," provides, in part: "Where a taxpayer under the Retailers' Occupation Tax act pays to the Department of Finance an amount of tax, penalty or interest not due under the provisions of the act, either as the result of a mistake of fact or an error of law, such taxpayer should file claim for credit on the form provided by the department for that purpose. In cases where claim for credit is approved, the department will issue a credit memorandum in the amount of the overpayment, which credit may be applied by the taxpayer in satisfaction of subsequent tax liability." Section 6, supra, it has been decided, (People v. Nudelman,
An additional argument is advanced in support of the contention that petitioners' claims cannot be paid out of the $100,000 appropriation. By appropriate averments in their answers the defendants challenged the right of the petitioners to any part of this appropriation for the reason that the first section of a separate appropriation bill, Senate Bill No. 500, appropriated $375,361.96 for the repayment to certain named persons, including petitioners, of the amounts erroneously paid to the State as payments under the Retailers' Occupation Tax act. Section 2 of the same bill appropriated $1,000,000 for refunding amounts of retailers' occupation taxes erroneously paid by persons entitled to such refunds under the provisions of section 6 of the statute. Senate Bill No. 500 was vetoed by the Governor and, hence, did not become a law. (People v. Hughes,
The defendants contend that issuance of the writs would promote substantial injustice, or create confusion and disorder. A like contention was decided adversely to them in People v. Nudelman,
The pleadings disclose that the fund appropriated by the legislature had in it sufficient to completely refund the taxes amounting to $73,509.93 illegally exacted from the petitioners in cause No. 25456, the day judgment was rendered in their favor. On the other hand, it appears that when judgment was subsequently rendered in cause No. 25461, the amount remaining in the fund, $22,648.58, was insufficient to fully pay the claims of the petitioners therein. For the reason that these petitioners are not now subject to the tax, and credit memoranda to be applied on future taxes would be of no avail to them, the balance remaining in the appropriation should have been exhausted by ordering its payment in proportion to their respective claims, subject, however, to any prior rights. They are, of course, entitled to credit memoranda for the balance due them for refunds but which cannot now be redeemed in cash.
The judgment of the circuit court of Cook county in cause No. 25456 is affirmed. The judgment in cause No. 25461 is reversed and the cause is remanded to that court, with directions to enter a decree in accordance with this opinion.
No. 25456 — Judgment affirmed.
No. 25461 — Reversed and remanded, with directions. *228