specially concurring:
Although I concur in the result reached, I do so only because of the authority of People v. Beller (1977), 50 Ill. App. 3d 394, 365 N.E.2d 714. I believe there are some weaknesses and deficiencies in the Better case. In Better, the record did not demonstrate that defendant was compelled to testify or produce the company documents, as required by section 9 of the Act in order for its immunity provision to be applicable. (Beller 50 Ill. App. 3d at 397, 365 N.E.2d at 716.) Here, in contrast, the record does contain the “demand” letter sent by the Department of Revenue to the defendant.
Furthermore, the letter in the instant case clearly threatens the defendant with criminal prosecution should he fail to abide by its terms. It seems abundantly clear that when the State, particularly the State agency authorized to collect taxes due, demands your financial records under a threat of criminal prosecution, one might feel “compelled” to surrender one’s records. In addition, this letter implies that, should the defendant comply with the demands of the letter, he will not be subject to prosecution. In practice, however, the defendant essentially protects himself from prosecution by not complying with the letter.
The anomalous nature of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 448) should be reviewed by the legislature. It seems that the legislature provided the immunity provision in order to induce voluntary participation by the taxpayer during investigations by the Department. In practice, however, the statute is more of an entrapment device for the Department. In any event, the Better decision, like this statute, has its own unique deficiencies.