Lead Opinion
delivered the opinion of the court:
Dеfendant, the Department of Revenue of the State of Illinois, appeals from an order of the circuit court of St. Clair County finding that the decision of the Board of Appeals of the Department of Revenue (hereinafter Board) that plaintiff, Philger, Inc., was respоnsible for $20,000 in the retailers’ occupation tax (hereinafter tax) (Ill. Rev. Stat. 1985, ch. 120, par. 451) on Augustine’s Restaurant, a business purchased by plaintiff, was against the manifest weight of the evidence and remanding the cause to defendant to grant the relief requested by plaintiff. In this cause, dеfendant raises a single issue, namely, whether the circuit court had jurisdiction to review the decision of the Board. We affirm.
The facts of this case are not in dispute. On September 2, 1982, a lease with an option to purchase was entered into between Augustine’s, Inc., lessor, and Ralph Augustine, lessee, for certain premises located in Belleville known as Augustine’s Restaurant. On November 12, 1982, Ralph Augustine assigned the lease and option to plaintiff. Prior to the assignment, Ralph Augustine’s business manager and the treasurer of Philger, Inc., Geraldine Verdi, contactеd defendant through defendant’s employee, Dale Zeller, to inquire into the amount of tax owed by Augustine’s Restaurant. In October 1982, Dale Zeller provided Geraldine Verdi with specific figures from a computer printout sheet of the amount owed by Augustine’s Restaurant. On October 4, 1982, and аgain on November 12, 1982, plaintiff made payments to defendant totaling $2,495.70.
On January 27, 1983, defendant issued a bulk sales stop order in which defendant claimed a lien against plaintiff in the amount of $20,000 for past-due tax owed by Augustine’s Restaurant. Thereafter, First National Bank, the bank responsible for financing plaintiff’s purchase of Augustine’s Restaurant, paid $4,890.35 on behalf of plaintiff for what was believed to be the remainder of the restaurant’s past-due tax. Prior to the final closing of the sale between Ralph Augustine and plaintiff, Greg Goodman, a vice-president at First National Bank, questioned Dale Zeller about the status of the bulk-sales stop order. Zeller informed Goodman that the bulk-sales stop order was a matter of procedure and that it would be released as soon as the paperwork was processed in the Chicagо office, since the entire amount of past-due tax owed by the restaurant had been paid.
The sale of Augustine’s Restaurant to plaintiff closed on April 22, 1983. On March 14, 1984, defendant notified plaintiff of a demand of payment for $41,111.36 for tax accrued by Augustine’s Restaurant prior to its sale to plaintiff. On March 23, 1984, plaintiff’s attorney sent a letter to the Board and sent a copy of the letter to defendant’s Bankruptcy, Bulk Sales and Probate Division seeking a review of defendant’s demand for payment and requesting a determination that plaintiff not be held liablе for payment of the tax. On May 4, 1984, defendant issued an amended bulk-sales stop order in the amount of $60,000.
Hearings were held before the Board on June 8, 1984, and December 3, 1984. On April 26, 1985, plaintiff’s attorneys received a memorandum order from the Board finding no legal basis for the relief requеsted and denying plaintiff’s petition. On May 24, 1985, plaintiff filed a complaint with the circuit court of St. Clair County under the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.) and section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 451) seeking judicial review of the Board’s order. Defendant filed a motion to dismiss which was denied. The circuit court also denied defendant’s motion for interlocutory appeal by permission.
A hearing on plaintiff’s complaint was held before the circuit court after which the circuit court entered an order finding the Board’s dеcision against the manifest weight of the evidence. The circuit court set aside the Board’s order and remanded the cause to defendant to grant the relief requested by plaintiff. Defendant concedes that there is some confusion as to the exact amount it sеeks to collect from plaintiff. According to defendant’s brief, however, defendant seeks only to collect the $20,000 on the original bulk-sales stop order.
The issue we are asked to address by defendant is whether the circuit court had jurisdiction to review the decision of thе Board. Defendant argues that the decision of the Board was not reviewable under either the provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.) or by common law certiorari. Plaintiff responds that while a circuit court has no jurisdiction to review decisions оf administrative boards under the Administrative Review Law where the statute creating such board does not adopt the provisions of the Administrative Review Law, the circuit court can still review a board's decision under common law certiorari. We find that at the time the complаint was filed, the decision of the Board was reviewable under common law certiorari.
The Administrative Review Law applies only where it is adopted by express reference in the act creating or conferring power upon the administrative agency involved. (Whitе v. Board of Appeals (1970),
In Maddox, the plaintiff, a former county supervisor of assеssments, filed an action in the circuit court of Williamson County for review of a decision of the defendant, the Williamson County Board of Commissioners, under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.). On appeal, the defendant contended that the plaintiff’s complaint for administrative review was ineffective to vest the circuit court with subject matter jurisdiction to review its decision because there was no provision for review under the Administrative Review Law in the statute under which the board had acted. (See Ill. Rev. Stat. 1983, ch. 120, par. 484(a).) The defendаnt further contended that review was available to plaintiff only by means of common law certiorari and since the plaintiff failed to file its complaint under such procedure, the circuit court was without jurisdiction to review the decision of defendant. The Maddox cоurt held that because “ ‘the substantial differences that at one time existed between common law and statutory certiorari have been all but obliterated’ ” (
In the instant case, plaintiff filed its complaint pursuant to the Administrative Review Law and section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 451). As previously decided by our colleagues on the First District Appellate Court, a circuit court hаs no jurisdiction to review a decision of the Board under the Administrative Review Law because the act creating and conferring power upon the Board is without an express adoption of the Administrative Review Law. (See Ill. Rev. Stat. 1985, ch. 127, par. 39b20; Tri-R-Vending Service Co. v. Depаrtment of Revenue (1988),
Defendant cites to Tri-R-Vending Service Co. v. Department of Revenue (1988),
It is well established in Illinois that circuit courts have the power to issue common law writs of certiorari to inferior tribunals whenever it can be shown that they have either exceeded their jurisdiction or have proceeded illegally and no direct appeal or othеr method of direct review of their proceedings is provided. (Goodfriend v. Board of Appeals (1973),
Plaintiff did all that it could prior to the sale of Augustine’s Restaurant to ensure that defendant would get the tax due it. After paying approximately $7,000 in tax, plaintiff was told by a representative of defendant, prior to the closing of the sale, that a bulk-sales stop order was a matter of procedure and that it would be released as soon as the paperwork was processed in the Chicago office as the entire amount of tax owed by Augustine’s Restaurant had been paid. Despite this promise and nearly one year after thе closing of the sale of the restaurant, defendant sought to recover taxes from plaintiff in amounts ranging from $20,000 to $60,000. Defendant cites the case of Austin Liquor Mart, Inc. v. Department of Revenue (1972),
For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed, and the cause is remanded to the Board for further proceedings not inconsistent with this opinion.
Affirmed and remanded.
HOWERTON, J., concurs.
Concurrence Opinion
specially concurring:
I concur in the result reached by the majority because of the unique factual scenario presented in this instance. I write this special concurrence, however, because I do not believe that normally a decision from the Board of Appeals of the Department of Revenue can be appealed. I believe that the Board was designed generally to sit as a “matter of grace,” granting special relief (i.e., deferred payments or installments, waivеr of penalties) to the aggrieved taxpayer who has already been through the process of appealing the assessment itself. At that stage, such “arrangements” are a matter for the Department and the taxpayer alone. Here, however, there has been no appeal or review of the assessment itself or the taxpayer’s liability, nor can there be. Yet, the taxpayer is entitled to some avenue of review of the Department’s assessment of liability. For these reasons, I concur in the result reached by the majority.