COLUMBIA FIRE INSURANCE COMPANY, ACORPORATION, Claimant, v. STATE OF ILLINOIS, Respondent.
Case summary
Claimant sought refund of overpaid privilege taxes for 1952, alleging negligence by the Director of Insurance. The court denied the claim because the taxes were voluntarily paid without protest, and no appropriation existed for refund.
Statutes cited: Par. 172, Chap. 127, Ill. Rev. Stats., 1951; Sec. 407 of the Illinois Insurance Code, Par. 1019, Chap. 73, Ill. Rev. Stats., 1951
Cases cited: Great American Insurance Company vs. State of Illinois, 19 C.C.R. 91; Adams vs. Nudelman; Farm Bureau Oil Co., Inc. vs. State of Illinois, 14 C.C.R. 153; The American Can Company vs. Gill, 364 Ill. 254
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Headnotes
- PRAClICE AND PKOCEDrJKL-fUXeS W h e n one does ilOt pursue his remedy to pay taxes under protest, he has lost his right to recover said funds
- TAXES-voluntary puyment Where payment of tax is voluntary, no r f - covery can ba had for overpayment, unless a specific statute authorizes such payment. STATE O FFICERS AND AGENTS-negltgenCe Negligence of department i n giving an incorrect amount of tax due is no defense to general rule governing voluntary payment of taxes
Leave of Court having first been granted to claimant, an amended complaint was filed in this case on December 3, 1953. Respondent has filed a motion to dismiss said [*39] amended complaint on the grounds that claimant has failed to pursue the remedies afforded it by the protest statute, Par . 172, Chap. 127, Ill. Rev. Stats., 1951; and See. 407 of the Illinois Insurance Code, Par. 1019, Chap. 73,’ Ill. Rev. Stats., 1951. Such failure, respondent contends, is a bar to claimant’s action herein.
A statement, brief and argument in support of the motion heretofore filed has also been submitted. No authorities were cited by claimant.
The amended complaint states that claimaiit paid privilege taxes to respondent for the year of 1952, and, also, filed with the Director of Insurance tax receipts showing taxes paid in accordance with See. 409 of the Illinois Insurance Code for the benefit of organized fire departments of cities, villages, incorporated towns and fire protection districts of the State of Illiiiois, as a tax on premiums received by claimant in such cities, villages, incorporat;d towns and fire protection districts. The amount so paid was in the sum of $1,700.25. On February 27, 1952, evidence of such payments made in accordance with See. 414 of the Illinois Insurance Code was filed with the Director of Insurance. Such payments should have been deducted from privilege taxes assessed claimant for the year of 1952. It is further alleged that the Director of Insurance of the State of Illinois negligently and carelessly failed to make a record, memoranda, or other notation of the performance of the conditioiis precedent to the deduction of the $1,700.25 from claimant’s 1952 annual privilege taxes. Claimant further contends that it presented a claim to the Director of Insurance, as evidenced by a letter, which it attached, marked.as an exhibit, and made a part of said cornplaint.
It further attached a letter, dated June 18, 1953, written by the Director of Insurance of the State of Illinois, [*40] wherein the error or omission was recognized. This letter is also marked as an exhibit, attached to the claim, and made a part thereof.
Claimant contends that, because of the negligencch ancl misrepresentation of the Director of Insurance, ii is entitled to recover its overpayment of privilege taxes for the year of 1952 from respondent.
Claimant does not allege in its complaint that the? privilege taxes for the year of 1952 were paid nncler 1 protest, or that it took any positive action, other than the writing of a letter to the Director of Insurance.
Claimant, having failed to pursue its remedy by paying the privilege taxes under protest, as provided by Par. 172, Chap. 127, 111. Rev. Stats., 1951, and See. 407 of the Illinois Insurance Code, Par. 1019, Chap. 73, Ill.
Rev. Stats., 1951, has lost its right to recover said funds, which were voluntarily paid.
Claimant had a right to object to the assessment of the taxes, and obtain a hearing. A provision is made in See. 407 for a review of either the court’s order, or the decision of the Director of the Department of Insurance, in which event the funds in question would not have been paid to the State Treasurer until the matter had been completely litigated. A similar question was before this Court in the case of Gil,eat Americmi Iiasuraizce Compawy vs. State of Illiizois, 19 C.C.R. 91, beginning op page 95.
We quote: “There is no dispute that the tax in this case was voluntarily paid. The petitioner, or the County Fire Insurance Company, had a remedy under Chap. 127, Par. 172, Ill. Rev. Stats. (State Bar Edition). ( Adam vs. Nudelman, supra; Farm Bureau Oil Co., Inc. vs. State of Illinois, 14 C.C.R. 1 5 3 at 155.)
Under the decisions of our courts, the money having been paid into the State Treasury, and no appropriation being applicable for the refund in this case, the claim will have to be denied. (Adams vs. Nudelman, supra.)” [*41] No statute is cited making a provision for a repayment of priG1eg.e taxes, or taxes of any kind, voluntarily paid.
The claimant in this case had knowledge of the filing of the receipts showing the sum of $1,700.25 paid to the local taxing body, for which credit should have been given by the Department of Insurance in assessing privilege taxes for the year of 1952. The privilege taxes wcrc paid voluntarily with knowledge of these facts.
Tn oi?w of the cases previously cited, and the casc of The Awericafi Can Compagzy vs. Gill, 364 Ill. 254, the funds having been transmitted to the State Treasurer, the allegation of negligence on behalf of the Director of Insurance mould not change the law in such cases.
For the reasons above assigned, the motion of respondent to dismiss claimant’s amended complaint is hereby allowed.