dissenting:
I respectfully dissent from the opinion of the majority. Section 25 of the 1959 version of the Illinois Inheritance Tax Act (Act) provides for a tax upon the transfer of inherited property as well as for reassessment of the tax when a power of appointment is exercised contrary to an assumption upon which a prior tax was assessed:
"When property is transferred or limited in trust or otherwise, and the rights, interest or estates of the transferees, or beneficiaries are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon the transfer at the rate which would be applicable ***. *** On the happening of any contingency whereby the property, or any part thereof is transferred to a person, corporation or institution exempt from taxation under the provisions of the inheritance tax laws of this State, or to any person, corporation or institution taxable at a rate less than the rate imposed and paid, the person, corporation or institution shall be entitled to a reassessment or redetermination of the tax and to a return by the State Treasurer of so much of the tax imposed and paid as is the difference between the amount paid and the amount which the person, corporation or institution should pay under the inheritance tax laws.” (Emphasis added.) Ill. Rev. Stat. 1959, ch. 120, par. 398.
Thus, the Act assessed a tax on the contingent future interest under Frederick Croll’s estate. See Ill. Rev. Stat. 1959, ch. 120, par. 375. That future interest was extinguished when Mrs. Croll exercised a testamentary power of appointment and directed that the principal of the trust be transferred to her estate. That transfer was not subject to tax. As quoted above, section 25 of the Act provides that where a property interest is extinguished due to the exercise of a power of appointment over the property, reassessment and redetermination of tax is appropriate.
The Act is structured such that a tax is assessed on certain assumptions, and those assumptions hold, regardless of subsequent events, unless the Act provides otherwise. The legislature assumed that Mrs. Croll’s power of appointment would go unexercised and that the remainder interest would eventually vest. The Act therefore assessed a tax on the contingent future interest under Frederick Croll’s estate.
Our supreme court has definitively held that: "[t]axing statutes are to be strictly construed. Their language is not to be extended or enlarged by implication, beyond its clear import. In cases of doubtf,] they are construed most strongly against the government and in favor of the taxpayer.” (Emphasis omitted.) Arenson v. Department of Revenue, 279 Ill. App. 3d 355, 358 (1996), citing Van’s Material Co. v. Department of Revenue, 131 Ill. 2d 196, 545 N.E.2d 695 (1989); Mahon v. Nudelman, 377 Ill. 331, 335 (1941). Thus, it is apropos that the Act is completely silent on distributions of principal by a trustee. There is no reference in the Act to trustee distributions of principal affecting either the assessment of tax on a life estate or the reassessment of tax on the exercise of a power of appointment. The Act therefore cannot be contorted to extrapolate the imposition of a tax on discretionary distributions of principal by a corporate trustee.
However, contrary to the record, the majority engages in hypothetical supposition in determining that the Treasurer may consider any distributions possibly made to Mrs. Croll. For example, the majority speculates that "the corporate trustee could be removed by Florence and her son,” or that "Florence could have refused to accept the distribution of funds.” 284 Ill. App. 3d at 110. (Emphasis added.) The record does not reveal that either of these events in fact occurred.
In addition, the majority presumes that the petitioners are attempting to avoid a tax by claiming that certain transfers are "exempt” from taxation. The majority has misread section 25. Section 25 provides for a refund of taxes paid to either an exempt individual, corporation, etc., or to an individual, corporation, etc., "taxable at a rate less than the rate imposed and paid.” Ill. Rev. Stat. 1959, ch. 120, par. 398. Petitioners are claiming the latter, not the former.
Moreover, the present case is distinguishable from In re Estate of Curtis, 28 Ill. 2d 172, 190 N.E.2d 723 (1963), upon which the majority relies. In Curtis, the life tenant of a marital trust was granted an unlimited power to withdraw funds from the trust principal. Shortly after the death of the trustor, and long before her own death, the life tenant, Mrs. Curtis, exercised this power by withdrawing all of the principal, thereby extinguishing the remainder interest in the trust. After Mrs. Curtis’ death, the trustees petitioned for a reassessment of the tax originally paid on the remainder interest following her life estate. The trustees argued that Mrs. Curtis’ exercise of her power of withdrawal was the same as the exercise of a power of appointment, which, under section 1(4) of the Act, would mean it was taxable against her estate as a transfer upon her death, not upon the death of her husband. Therefore, the trustees argued that the inheritance tax payable by reason of the trustor’s death was less than previously assessed, and the estate was entitled to a refund of approximately $100,000. Curtis, 28 Ill. 2d at 175.
The State responded that the total withdrawal of the principal by Ms. Curtis was not the same as an exercise of a power of appointment, and that while reassessment was necessary, the remainder interest of the marital trust should be excluded in computing the reassessment. Rather, the State argued that the value of the remainder should be taxed in the trustor’s estate as a transfer to his widow, thereby resulting in a reduced refund of approximately $12,000. The circuit court agreed with the State and reassessed the inheritance tax accordingly.
On appeal, our supreme court affirmed the reassessment of the circuit court, holding that "under the circumstances of this case,” the value of the remainder interest of the marital trust was properly taxed as a transfer from the donor to his widow. Curtis, 28 Ill. 2d at 178-79. While the Curtis court did not conclude that the withdrawal privilege was a power of appointment per se, the majority concludes without authority that there is no "real difference” between an unlimited power of a donee to withdraw principal and a discretionary power of distribution by a trustee.
In the present case, distributions of principal under this instrument were limited by an ascertainable standard. The corporate trustee had the sole right under circumstances restricted to insufficient income for proper support, maintenance and medical attention to make small distributions to Mrs. Croll from the trust corpus. Mrs. Croll had no power of withdrawal but, rather, a mere testamentary power of appointment. (The majority incorrectly states that Mrs. Croll was "not without power over the distribution of principal from the marital trust.” 284 Ill. App. 3d at 110.) While Mrs. Curtis circumvented the trust apparatus by terminating the trust and taking the entire principal shortly after her husband died, Mrs. Croll could not have done the same. The trustee had the sole power of distributing to Mrs. Croll a maximum of 5% per annum of the principal, at which rate it would have been mathematically impossible to extinguish the principal through distributions. Thus, it is clear that distributions of principal were limited by an ascertainable standard.
The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Legislative intent is best determined by the statutory language, which should be given its plain and ordinary meaning: "there is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83, 630 N.E.2d 820, 823 (1994). Contrary to the determination of the majority, the supreme court in Curtis did not declare the exercise of a testamentary power of appointment a "taxable transfer” under the Act.
"[T]he enumeration of one thing in a statute implies the exclusion of all others.” Baker v. Miller, 159 Ill. 2d 249, 260, 636 N.E.2d 551, 556 (1994). In subsequent amendments to the Act, the legislature continued to ignore discretionary distributions of principal, despite the recommendations of commentators. In 1965 the Act was amended so that a beneficiary’s power to withdraw principal would be assumed to be exercised and the initial tax would be assessed as though the first spouse gave all of the property to the survivor. See Ill. Rev. Stat. 1965, ch. 120, par. 398. Because our General Assembly did not choose to amend the Act to impose a tax upon "any distribution” from the corpus of an estate nor to specify all situations under which a tax would not be triggered, our supreme court’s holding in Curtis is limited to the specific facts and circumstances of that case.
"When the legislature is silent, a court may not fill a void through judicial interpretation.” Gabriel Builders, Inc. v. Westchester Condominium Ass’n, 268 Ill. App. 3d 1065, 1068, 645 N.E.2d 453, 455 (1994). I believe that the majority here engages in impermissible judicial legislation by redrafting section 25 to impose additional taxes upon alleged distributions of the principal of a trust.