dissenting:
The plaintiff entered into an agreement with the Chicago Park District to operate a business on property owned by the Park District. The Cook County assessor determined that the agreement was a lease, and, because leases are subject to taxation, sent a notice of assessment to the plaintiff. Plaintiff disagreed with the assessor. According to plaintiff, its agreement with the Park District was merely a license to use the property and, therefore, not subject to assessment and taxation. However, instead of contesting the assessment by exhausting its administrative remedies pursuant to the Property Tax Code (35 ILCS 200/23 — 15 (West 2008)), plaintiff filed a complaint for declaratory judgment directly in the circuit court. Plaintiff maintained that it did not have to follow the statutory tax objection procedures set forth in the Code because the assessment and tax were “unauthorized by law,” and, therefore, plaintiff was subject to an exception that permitted it to proceed in the circuit court.
The majority agrees with plaintiff and holds that, under the “unauthorized by law” exception, the circuit court had the authority to decide plaintiffs complaint. Because I disagree with the conclusion reached by the majority, I respectfully dissent.
The general rule in taxation cases is that a tax objector must first exhaust its administrative remedies before filing a complaint directly in the circuit court. Clarendon Associates v. Korzen, 56 Ill. 2d 101, 105 (1973). This general rule is subject to two exceptions: (1) where the tax is “unauthorized by law”; and (2) where it is levied upon property exempt from taxation.3 Clarendon Associates, 56 Ill. 2d at 105. Where one of the exceptions applies, the taxpayer may elect to either pursue the administrative remedy or proceed directly to the circuit court. Clarendon Associates, 56 Ill. 2d at 105.
The plaintiff contends that it was not required to exhaust its administrative remedies because the assessment and tax were “unauthorized by law.” I disagree. The action of a public official is “unauthorized by law” where the agency acts outside the scope of its statutory authority. Public officials have no taxing power except that which is delegated to them by the legislature. Santiago v. Kusper, 133 Ill. 2d 318, 325 (1990). A tax is unauthorized where the taxing body has no statutory power to tax. Wood River Township v. Wood River Township Hospital, 331 Ill. App. 3d 599, 606 (2002).
The “unauthorized by law” exception does not apply to this case because the plaintiff is not attacking the statutory authority of the assessor and treasurer to assess property and collect taxes. Rather, it is challenging only the assessor’s decision to characterize its property as a lease. There is no dispute that the assessor has the statutory authority to assess a lease. See 35 ILCS 200/ 9 — 70 (West 2008) (“Local assessment officers shall assess all other property not exempted from taxation.”); 35 ILCS 200/9 — 195 (West 2008) (where the lessee obtains a leasehold interest in property owned by a tax-exempt entity, the lease is taxable, and the lessee is liable for those taxes). Necessarily, then, the assessor has the authority to determine what is, and what is not, a lease. When the assessor erroneously determines that something is a lease, he has merely made a mistake. He has not exceeded his authority.
The majority concludes that, because the assessor has no statutory authority to assess licenses, the plaintiffs challenge of the assessment is an attack on the assessor’s authority. This is not the case. Even if the assessor incorrectly deemed plaintiff’s property interest a taxable leasehold, the assessor’s authority does not flow from the correctness of his decisions. See, e.g., Newkirk v. Bigard, 109 Ill. 2d 28, 37-38 (1985) (“An agency’s jurisdiction or authority is not lost merely because its order may be erroneous.”). Plaintiff’s complaint challenged the correctness of the assessor’s decision, which should only be challenged by exhausting administrative remedies under the Code. Therefore, it is improper for this court to consider this case on its merits.
I recognize that, as a result of this position, the plaintiff would have difficulty obtaining relief. However, I agree with the dissenting justice in the appellate court that “[b]y finding the circuit court had jurisdiction in this case the majority opens most incorrect classifications by the assessor to trial court review without adhering to statutory procedure.” 393 Ill. App. 3d at 31 (Wolfson, J., dissenting). This is a serious concern. The majority opinion undermines a well-established statutory scheme.
Pursuant to the Property Tax Code, plaintiff should have challenged the assessment by filing a complaint with the Cook County board of review. 35 ILCS 200/ 16 — 95 (West 2008). It then could have filed an appeal before the Illinois Property Tax Appeal Board (35 ILCS 200/16 — 160 (West 2008)) or paid the tax under protest and filed a tax objection complaint in the circuit court (35 ILCS 200/23 — 5, 23 — 10, 23 — 15 (West 2008)). If it had filed a tax objection complaint pursuant to section 23 — 15, the circuit court could have determined whether it was shown by clear and convincing evidence that the tax, assessment, or levy was “incorrect or illegal.” 35 ILCS 200/23 — 15 (West 2008). Section 23 — 15 “shall be construed to provide a complete remedy for any claims with respect to those taxes, assessments, or levies, excepting only matters for which an exclusive remedy is provided elsewhere in this Code.” (Emphasis added.) 35 ILCS 200/23 — 15(b)(1) (West 2008). Because plaintiff failed to exhaust its administrative remedies under the Code, this court may not grant plaintiff a remedy in equity.
JUSTICES FREEMAN and KARMEIER join in this dissent.
Plaintiff does not invoke the second exception.