1-05-1059

                                                  FIFTH DIVISION
                                                  October 5, 2007




No. 1-05-1059


THE STATE ex rel. BEELER SCHAD AND DIAMOND,   )   Appeal from the
P.C.,                                         )   Circuit Court of
                                              )   Cook County
      Plaintiffs-Appellees,                   )
                                              )
v.                                            )
                                              )
RITZ CAMERA CENTERS, INC., and RITZ           )   02 L 869
INTERACTIVE, INC., and WOLF CAMERA, INC.,     )
                                              )
dELiA*s CORP.,                                )   02 L 1435
                                              )
NBTY, INC., and VITAMIN WORLD, INC., and      )   02 L 4462
VITAMIN WORLD ONLINE, INC.,                   )
                                              )
ANTHROPOLOGIE, INC., ANTHROPOLOGIE            )   02 L 4464
DIRECT, LLC, and URBAN OUTFITTERS DIRECT,     )
LLC,                                          )
                                              )
MTS INCORPORATED, and TOWER DIRECT LLC,       )   02 L 4466
                                              )
PACIFIC SUNWARE OF CALIFORNIA, INC., and      )   02 L 5023
PACSUN.COM,                                   )
                                              )
PETsMART, INC., PETsMART.COM, and PETsMART    )   02 L 5025
DIRECT,                                       )
                                              )
BASSNET, INC., G.H. BASS & CO., IZOD          )   02 L 5824
CORPORATION, IZOD.COM, INC., and PHILLIPS     )
VAN-HEUSEN CORPORATION,                       )
                                              )
RETAIL BRAND ALLIANCE, INC., d/b/a CASUAL     )   02 L 5827
CORNER GROUP,                                 )
1-05-1059

PRESIDIO RETAIL, INC., d/b/a ARMANI EXCHANGE,   )   02 L 6312
                                                )
HALLMARK CARDS, INC.,                           )   02 L 6702
                                                )
THE PFALTZGRAFF COMPANY,                        )   02 L 7528
                                                )
HOT TOPIC, INC.,                                )   02 L 7529
                                                )
BASS PRO, INC., BASS PRO OUTDOOR WORLD,         )   02 L 7530
L.L.C., BASS PRO OUTDOORS ONLINE, L.L.C., and   )
THREE JOHNS COMPANY, a/k/a BASS PRO SHOPS,      )
INC., NEW BALANCE ATHLETIC SHOE, INC.,          )
                                                )
NEW BALANCE WEB EXPRESS,                        )   02 L 8234
                                                )
BOOKS-A-MILLION, INC., BOOKSAMILLION.COM,       )   02 L 8235
INC.,                                           )
                                                )
1-800-FLOWERS.COM, INC.,                        )   02 L 10462
                                                )
MAIDENFORM, INC.,                               )   02 L 10913
                                                )
TUPPERWARE.COM, INC.,                           )   02 L 12900
                                                )
AMAZON.COM, INC., BORDERS GROUP, INC.,          )   03 L 185
BORDERS ONLINE, INC., TOYSRUS, INC., and        )
TOYSRUS.COM,                                    )
                                                )
EB CATALOG CO., INC., EB WORLD.COM, INC., and   )   03 L 1163
ELECTRONICS BOUTIQUE HOLDING CORP.,             )
                                                )
SPENCER GIFTS ONLINE, INC., UNIVERSAL           )   03 L 2506
STUDIOS, INC., and UNIVERSAL STUDIOS ON-LINE,   )
INC.,                                           )
                                                )
STUART WEITAMAN, INC., and                      )   03 L 2931
                                                )
GATEWAY, INC., f/k/a GATEWAY 2000,              )   03 L 3071
                                                )
      Defendants-Appellants.                    )   Honorable
                                                )   Ronald F. Bartkowicz,
                                                )   Judge Presiding.

                                     2
1-05-1059

        JUSTICE GALLAGHER delivered the opinion of the court:

        In this Illinois Supreme Court Rule 308 petition (155 Ill. 2d R. 308), we are asked to

answer six certified questions dealing with a claim brought under the Illinois Whistleblower

Reward and Protection Act (Act) (740 ILCS 175/1 et seq. (West 2002)), filed by Beeler Shad &

Diamond as a relator on behalf of the State of Illinois. The underlying claim relates to

defendants’ sale of goods over the internet and/or through catalogs into Illinois and defendants'

alleged failure to collect and remit use tax relating to these sales.1 The trial court certified the

following questions for interlocutory review:



        Question 1

        "As a matter of law, if a remote retailer does not collect and remit use tax on sales to

Illinois customers, can it make a 'knowingly' false record or statement, as required to create

liability under the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/1?"

        Question 2

        "(a) As a matter of law, does the Whistleblower Act require the existence of an actual

record or statement to support a claim or can the failure to keep a record be actionable?

        (b) As a matter of law, can documents memorializing a purchase (i.e. invoices or packing

receipts) that show in the line item for tax '$0.0' or in some other way that tax is not being

collected be considered 'false' under the Whistleblower Act where the retailer that created those

documents does not collect tax?



        1
            This court granted a motion to withdraw from the appeal filed by Pfaltzgraff Co.,

Maidenform, Inc., Toy's R Us and PETsMART.
                                                   3
1-05-1059

       (c) Under the Whistleblower Act, as a matter of law, is it necessary that a false statement

be submitted to or actually relied upon by the State?"

       Question 3

       "Does the application of the general provisions of the Whistleblower Reward and

Protection Act, 740 ILCS 175/1, to enforce the sales and use tax laws improperly deprive

taxpayers of the specific rights and privileges afforded them under the Protest Monies Act (30

ILCS 230/1), the Taxpayer's Bill of Rights, 20 ILCS 2502/1, and/or the statutory administrative

procedures offered by the Illinois Department of Revenue, 35 ILCS 105/1; 35 ILCS 120/1, such

that the Whistleblower Reward and Protection Act cannot be used to enforce the collection of

taxes due the State?"

       Question 4

       "Is the Illinois Department of Revenue the sole entity authorized by the Illinois General

Assembly to assess and collect use tax?"

       Question 5

       "Does the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/1, apply to

alleged tax liabilities under the Use Tax Act?"

       Question 6

       "(a) Does the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/1, violate

the Attorney General clause of the Illinois Constitution, Article V, Section 15, by improperly

usurping the exclusive authority of the Attorney General to initiate and conduct litigation on

behalf of the State?



                                                  4
1-05-1059

        (b) Does the Illinois Whistleblower Reward and Protection Act, 740 ILCS 175/1, as

applied to tax matters, violate either the Attorney General clause or the Executive Compensation

clause of the Illinois Constitution, Article V, Sections 15 and 21?"

        This court denied defendants' Rule 308 petition; however, the Illinois Supreme Court

pursuant to its supervisory authority directed this court to answer the above certified questions,

which we now do in this appeal.



                                          BACKGROUND

        The following facts are relevant to answering the certified questions raised on appeal.

The law firm of Beeler, Schad & Diamond filed a complaint alleging that the defendant retailers'

records, returns and statements that claimed no use tax was due on their sales to Illinois

consumers were knowingly false within the meaning of the Act. Beeler, Schad & Diamond filed

this complaint on behalf of the State of Illinois as a relator. The complaint alleged that

"defendants are retailers whose out-of-state operations made sales to Illinois residents over the

Internet and/or through catalogs and defendants failed to collect and remit use tax on these

sales." The complaint also alleged that each of defendants' Web sites, retailers' records, returns

and statements that claimed no use tax due on its sales to Illinois customers was knowingly false

within the meaning of the Act.

        Beeler, Schad & Diamond also filed a similar complaint in Nevada. In the Nevada case,

the Nevada Supreme Court addressed the false claims actions brought by Beeler, Schad &

Diamond relating to allegations of falsified tax liabilities associated with the retailers' Internet

and/or catalog sales. International Game Technology, Inc. v. Second Judicial District Court of

                                                   5
1-05-1059

the State of Nevada, 122 Nev. 132, ____, 127 P.3d 1088, 1095 (2006). The Attorney General in

the Nevada case intervened and moved to dismiss the case. International Game Technology,

Inc., 122 Nev. at ____, 127 P.3d at 1096. The Nevada Supreme Court affirmed the trial court's

dismissal of the case. International Game Technology, 122 Nev. at ___, 127 P.3d at 1108. The

Nevada court held that false claims actions incorporating the state's revenue statutes were not

necessarily excluded as claims appropriately brought under the Nevada false claims act, but the

Attorney General had articulated a legitimate government purpose for intervening and

dismissing the complaint, asserting that the entity entrusted to maintain consistency and

uniformity in the tax laws should resolve the issue. International Game Technology, 122 Nev. at

___, 127 P.3d at 1108.

       Here, the Attorney General intervened in the matter filed in the circuit court and

prosecuted the matter on the State's behalf. In response to the complaint filed in Illinois,

defendants filed a joint motion to dismiss. The trial court denied defendants' joint motion to

dismiss and also granted defendants' motion for an interlocutory appeal under Rule 308. This

court denied defendants' Rule 308 petition for leave to appeal, and defendants appealed that

decision to the Illinois Supreme Court, which directed this court pursuant to its supervisory

authority to answer the certified questions.

       Before addressing the certified questions, we deem it necessary to provide background

information underlying the questions in the instant appeal. The act implicated in the instant

matter is the Illinois Whistleblower Reward and Protection Act (740 ILCS 175/1, et seq. (West

2002)). The Act provides a provision relating to false claims. 740 ILCS 175/3 (West 2002).

According to the false claims provision, a person presents a false claim when he "knowingly

                                                  6
1-05-1059

makes, uses, or causes to be made or used, a false record or statement to conceal, avoid or

decrease an obligation to pay or transmit money or property to the State." 740 ILCS 175/3(a)(7)

(West 2002). The Illinois false claims provision defines "knowing" and "knowingly" as:

               "a person, with respect to information:

                       (1) has actual knowledge of the information;

                       (2) acts in deliberate ignorance of the truth or falsity of the information; or

                       (3) acts in reckless disregard of the truth or falsity of the information, and

                       no proof of specific intent to defraud is required." 740 ILCS 175/3(b)

                       (West 2002).

       Alleged violations of the Act may be brought in a civil action commenced by the

Attorney General or a private person, referred to as a "relator," in the State's name in actions

known as qui tam actions. 740 ILCS 175/4(a), (b), (c) (West 2002). The State may intervene,

proceed with the action and take over conduct of the action, or decline to intervene. 740 ILCS

175/4(b)(4)(A), (B) (West 2002). If the State proceeds with an action commenced by the relator,

the relator receives a percentage of the proceeds from the successful disposition or settlement of

the claim. 740 ILCS 175/4(d) (West 2002).

       The Act is modeled after the Federal False Claims Act (FCA) (31 U.S.C. §3729 et seq.

(2000) and is an antifraud statute. State ex rel. Beeler, Schad & Diamond, P.C. v. Burlington

Coat Factory Warehouse Corp., 369 Ill. App. 3d 507, 510-11, 860 N.E.2d 423, 425-26 (2006).

The FCA includes a provision referred to as the "reverse false claims" provision. The reverse

false claims provision "was added 'to provide that an individual who makes a material

misrepresentation to avoid paying money owed the Government would be equally liable under

                                                  7
1-05-1059

the Act as if he had submitted a false claim to receive money.' " United States ex rel. Bahrani v.

Conagra, Inc., 465 F.3d 1189, 1194 (10th Cir. 2006), quoting Senate Report No. 99-345, at 18,

1986 U.S.C.C.A.N. 5283. A reverse false claims cause of action "requires proof that the

defendant 'knowingly' made, used, or caused to be made a false record or statement to avoid an

obligation. To act 'knowingly' means that a person, with respect to information: (1) has actual

knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the

information; or (3) acts in reckless disregard of the truth or falsity of the information." Bahrani,

465 F.3d at 1205-06. To succeed in a reverse false claims cause of action, "[n]o proof of specific

intent to defraud is required." Bahrani, 465 F.3d at 1206.

       The obligation allegedly avoided here is the payment of use tax. The use tax is a tax on

the privilege of using tangible property in the State. 35 ILCS 105/3 (West 2002). The use tax

must be collected and remitted by any retailer maintaining a place of business in Illinois. 35

ILCS 105/3-45 (West 2002).

       Our review of an interlocutory appeal brought pursuant to Rule 308 "is strictly limited to

the certified question." In re Estate of Williams, 366 Ill. App. 3d 746, 748, 853 N.E.2d 79, 82

(2006). Our responsibility in addressing Rule 308 cases "is to answer the certified question

rather than to rule on the propriety of the parties' claims." In re Estate of Williams, 366 Ill. App.

3d at 748, 853 N.E.2d at 82. With these principles in mind, we now turn our attention to

answering the certified questions at issue in the instant case.




                                                  8
1-05-1059

                                            ANALYSIS

                                             Question 1

       The first question that we will address is what constitutes a "knowingly" false record or

statement sufficient to create liability under the Act. Defendants contend that the allegedly false

statements at issue here reflect nothing more than a "difference in interpretation growing out of a

disputed legal question." United States ex rel. Humphrey v. Franklin-Williamson Human

Services, Inc., 189 F.Supp. 2d 862, 867 (S.D. Ill. 2002). Defendants claim that whether they

were required to collect use tax is a disputed question of law and assuming arguendo that the

alleged violations could be proved, the State could not prove that defendants had the requisite

"knowledge" required under the Act. Defendants contend that, despite the trial court's decision

that a disputed legal question cannot, as a matter of law, be knowingly false, the trial court erred

in its treatment of this decision by denying defendants' motion to dismiss. Defendants assert that

since the laws and regulations regarding nexus in Illinois are disputed and in a "quagmire,"

causes of action premised on nexus with Illinois cannot create a violation of the Act, which

requires a "knowing" fraud upon the State. 740 ILCS 175/3(a)(7) (West 2002).

       The State responds that whether defendants acted with the requisite state of mind is a

question of fact that cannot be resolved on a motion to dismiss. The State maintains that

whether defendants had a sufficient nexus with Illinois subjecting them to use tax depends on the

quantity, nature and scope of their contacts with Illinois. The State similarly contends that the

complaints alleged that defendants had sufficient contacts with Illinois to create a tax liability

and that defendants knowingly made false statements that they did not owe use tax. As such, the

trial court properly denied the motion to dismiss.

                                                  9
1-05-1059

       Under the circumstances of the instant case, the answer to this certified question is that a

remote retailer cannot make a "knowingly" false record or statement sufficient to create liability

under the Act when the pertinent area of the law is unclear and specific factual analysis must be

completed to determine if the retailers' use tax liability was correctly disclosed as $0. To prevail

in a reverse false claims cause of action, proof is required: "(1) that the defendant made, used, or

caused to be used a record or statement to conceal, avoid, or decrease an obligation to the United

States; (2) that the statement or record was false; (3) that the defendant knew that the statement

or record was false; and (4) that the United States suffered damages as a result.” Wilkins ex rel.

United States v. State of Ohio, 885 F.Supp. 1055, 1059 (S.D. Ohio 1995), citing United States ex

rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Provident Life & Accident Insurance Co., 721

F.Supp. 1247, 1258-59 (S.D. Fla. 1989).

       We find Wilkins ex rel. United States v. State of Ohio, 885 F.Supp. 1055 (S.D. Ohio

1995), instructive in defining the term “knowingly.” The Wilkins court addressed the requisite

knowledge needed to prevail in a reverse false claims act violation and stated that “[t]he gist of

the violation is not an intent to deceive but the knowing presentation of a claim, record or

statement that is either ‘fraudulent’ or ‘false’ and the requisite intent is the knowing presentation

of what is ‘known to be false.’ ” Wilkins, 885 F.Supp. at 1059, citing Wang ex rel. United States

v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir. 1992), citing United States ex rel. Hagood v.

Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991); see also Thompson Pacific

Construction, Inc. v. City of Sunnyvale, No. H029818, slip. op. at 12 (Cal. App. September 21,

2007). Interpreting United States ex rel. Stevens v. McGinnins, No. C-1-93-442 (S.D. Ohio

1994), the Wilkins court stated that McGinnins “does not hold that the mere failure to record or

                                                 10
1-05-1059

report violations of the law which might result in an obligation to pay money is sufficient in

itself to violate subsection (a)(7). Rather, . . . in order to recover under subsection (a)(7), the

plaintiff must also prove that the false information, be it in the form of an affirmative statement

or an omission, was knowingly submitted by the defendant to the United States Government for

the purpose of avoiding a debt or obligation to the government." Wilkins, 885 F.Supp. at 1064.

We find it necessary to draw upon the distinction between a material omission that was not

recorded as required on a document amounting to a deliberate concealment and the instance here

where the alleged omission arose from an interpretation and analysis of an existing area of

unsettled law.

        We also note that the Illinois Department of Revenue's (Department) position regarding

nexus determinations consistently rests upon an analysis of the facts specific to a taxpayer. Even

though the Department has created a general guideline to assist in making nexus determinations,

whether an entity has sufficient nexus in the State to impose a tax liability rests upon the specific

facts of the transaction. Illinois Department of Revenue General Information Letter, ST

07-0063-GIL (June 12, 2007). Given the Department's consistent position that nexus

determinations are a fact-specific inquiry and the myriad of considerations that must be

undertaken to determine nexus based on the nature and extent of activities within the State, we

cannot conclude that a retailer that does not collect and remit use tax, but does discloses that no

use tax was collected, can "knowingly" make a false record or statement necessary to create a

liability under the Act.

        We further note that dismissing a complaint that raises a question of fact has long been

rejected in this state. See A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905,

                                                  11
1-05-1059

912, 611 N.E.2d 619, 625-26 (1993). It is uncertain at this stage of the proceedings whether

defendants consulted with a tax professional or sought tax advice regarding their use tax

obligations in Illinois, which would assist in determining whether defendants "knowingly"

omitted collecting use tax in Illinois as defined by the FCA or if the failure to collect and remit

use tax was based on flawed reasoning or a difference in interpretation of disputed legal

questions. See United States v. Bourseau, No. 03-CV-907-BEN (WMC), slip op. at 13 (S.D.

Cal. September 29, 2006). As such, the trial court did not err in denying the motion to dismiss in

light of the necessary factual determinations that must be made regarding defendants’

knowledge.



                                           Question 2(a)

       We answer this question by stating that the Act requires the existence of an actual record

or statement; however, the failure to keep a record when required to do so may be actionable

under the Act given the proper factual scenario. Defendants assert that finding a "false

statement" requires a complaint to allege: (1) an actual "record or statement"; (2) that is "false";

and (3) that was submitted to or relied upon by the State. Defendants contend that the alleged

false statements here relate to the failure to create a record, and the absence of a record cannot

violate the Act. Defendants maintain that contrary to the trial court's finding, the failure to keep

reports of tax owed does not constitute a false record. To support this contention, defendants

cite to American Textile Manufacturers. Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 736

(6th Cir. 1999), Pickens v. Kanawha River Towing, 916 F.Supp. 702, 708 (S.D. Ohio 1996), and

In re Krikava, 236 B.R. 701, 708 (Bankr. D. Neb. 1999). Defendants also recite the Act's

                                                 12
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language, which states in pertinent part: "Any person *** who knowingly makes, uses, or causes

to be made or used, a false record or statement to conceal, avoid or decrease an obligation to pay

or transmit money or property to the State ***." 740 ILCS 175/3(a)(7) (West 2002).

Defendants maintain that according to the Act's plain language, "making" or "using" a record or

statement requires the existence of an actual record. Absent an actual record, defendants claim

that a violation of the Act cannot exist.

       The State responds that the Act is an antifraud statute and, as such, the intentional

concealment of a material fact is the equivalent of a false statement of material fact. The State

maintains that under the Illinois tax statutes and regulations, a retailer who is required to collect

use tax must maintain records showing that he collected the tax "in accordance with [86 Ill.

Adm. Code §150.405] and that he states such tax separately to the purchaser from the selling

price of the tangible personal property which he is selling." 86 Ill. Adm. Code §150.1305(a)

(amended and eff. August 21, 1974). The State claims that the complaint adequately stated that

defendants did not prepare and maintain records showing that they collected the required taxes,

omitted from their verified returns the use tax liability incurred on retail sales over the Internet,

and failed to remit to the State the full amount of their use tax liability. The State asserts that

defendants' failure to maintain records and to make disclosures to the State when required to do

so, as well as withholding information when making those disclosures, is the equivalent of

creating a false record for purposes of the Act.

       The State relies on United States ex rel. Oliver v. Parsons Co., 195 F.3d 457, 465 (9th

Cir. 1999), which held that the failure to disclose required information in a disclosure statement

was sufficient evidence of a false statement or record to preclude summary judgment. The State

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also relies on United States ex rel. Augustine v. Century Health Services, Inc., 289 F.3d 409, 415

(6th Cir. 2002), which held that "a false implied certification may constitute a false or fraudulent

claim even if the claim was not expressly false when it was filed." The State further relies on

Pickens v. Kanawha River Towing, 916 F.Supp. 702 (S.D. Ohio 1996), for the proposition that

the failure to accurately maintain a record constituted a false record under the FCA. Pickens,

916 F.Supp. at 708. The State claims that defendants were required to verify, under penalty of

perjury, the accuracy of their returns, records and payments, which omitted the use tax that they

were required to collect, record and disclose, rendering the documents false for purposes of the

Act. The State asserts that defendants' documents falsely represented that no use tax was due

and not that it was passing its legal obligation to collect and remit the use tax to its customers.

       We answer certified question 2(a) in the affirmative. To state a claim under the Act, the

alleged violation must be based on a false statement or document. We restrict our answer to stay

within the limited scope of concluding that an actual document must exist; however, we do not

express an opinion as to whether concealment of or omission of material information from

documents or records is sufficient to state a claim because such an inquiry is outside the scope of

the certified question. Without the existence of a document or statement, we believe it would be

difficult to determine whether the document was false. See American Textile Manufacturers

Institute, Inc., 190 F.3d at 736 (stating that "a reverse false claim action cannot proceed without

proof that the defendant made a false record or statement at a time that the defendant owed to the

government an obligation sufficiently certain to give rise to an action of debt at common law");

United States ex rel. Marcy v. Rowan Cos., No. 03-3395, slip op. at 12-13, 15 (E.D. La. August

17, 2006) (noting that defendants neglected to record discharges in an oil log book and weekly

                                                  14
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drilling reports in attempt to conceal defendants' obligations to pay oil royalties, transfer oil

resources and civil fines); United States ex rel. Drake v. Norden Systems, Inc., No. 3:94-CV-

963(EBB), slip op. at 12 (D. Conn. August 24, 2000) (referring to specific documents that were

submitted to conceal payment of an obligation).

       We believe the cases relied upon by the State are distinguishable because those cases do

not address reverse false claims violations that are at issue here or they relate to an omission of

material information from existing documents. Oliver, 195 F.3d at 465 (addressed the exclusion

of companies on a disclosure statement); Pickens, 916 F.Supp. at 708 (discussed the failure to

record discharges on a vessel's log); and United States ex rel. Augustine v. Century Health

Services, Inc., 289 F.3d 409, 415 (6th Cir. 2002) (addressed the continuing duty to provide

information after initial documents were submitted). We must also state that our role in this

appeal is not to determine whether defendants violated any relevant sections of the Illinois tax

statutes and regulations by not filing appropriate returns or supporting documents, and as such,

we express no opinion regarding any alleged violation of the Illinois tax laws. Adopting a literal

reading of the Act's statutory language, we must conclude that an actual false record or statement

must exist to bring a claim under the Act. See Whitledge v. Klein, 348 Ill. App. 3d 1059, 1062,

810 N.E.2d 303, 305-06 (2004). Without an actual document, the next required determination in

the analysis of whether the record or statement was false would be difficult, potentially even

impossible under certain circumstances.

       We must now consider the trial court's reliance on Pickens v. Kanawha River Towing,

916 F.Supp. 702 (S.D. Ohio 1996). The Pickens court agreed "that a reverse false claim requires

more than a mere failure to report a violation of another statute." Pickens, 916 F.Supp. at 708.

                                                  15
1-05-1059

The Pickens court also held that "[a] failure to report does not count as a statement or record."

Pickens, 916 F.Supp. at 708. In Pickens, the court held that a vessel log that omitted a major

event that it should ordinarily contain renders the record to be a false record for purposes of the

Act if the government relies upon or otherwise reviews the logs as part of its regulatory role.

Pickens, 916 F.Supp. at 708. We note that unlike the record in Pickens, in which a material

event was omitted from the record, the record in the instant case provides for and includes a

separate line item reflecting that the use tax collected relating to the specific purchase was $0.

Thus, in the instant case, defendants disclosed the pertinent information, but whether that

information was accurately disclosed is for the trial court to determine on the evidence

presented. In both Pickens and here, however, the alleged false statements can be traced to an

actual record.



                                           Question 2(b)

       Our answer to this certified question is that documents memorializing that no use tax is

due or collected should not be considered false under the Act provided the retailer lacked

scienter when generating the documents. Our analysis of this issue focuses on the meaning of

the term "false" or "falsity." Although the FCA does not define the term "falsity," generally,

falsity means an untruth. Fru-Con Construction Corp. v. Sacramento Municipal Utility District,

No. S-05-583 LKK/GGH (E.D. Cal. June 15, 2007). Since falsity is synonymous with an

untruth, "[E]xpressions of opinion, scientific judgments, or statements as to conclusions about

which reasonable minds may differ cannot be false." United States Maxwell ex rel. v.



                                                 16
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Kerr-McGee Chemical Worldwide, LLC, No 04-CV-01224-PSF-CBS, slip op. at 2 (D. Colo.

October 6, 2006).

       Defendants contend that documents demonstrating that tax was not being collected

cannot as a matter of law be deemed "false" because a "true" statement cannot be "false" within

the Act's meaning. United States ex rel. Garst v. Lockheed Integrated Solutions Co., 158

F.Supp. 2d 816, 823 (N.D. Ill. 2001); United States ex rel. Lamers v. City of Green Bay, 168

F.3d 1013, 1018 (7tth Cir. 1999); United States ex rel. Hopper v. Anton, 91 F.3d 1261 (9th Cir.

1996). Defendants contend that the statements on the documents that "Tax: $0.00" represents

truthful assertions that no tax was being collected, which cannot be deemed false. In response,

the State contends that defendants' failed to collect use tax and falsely stated that no Illinois use

tax was applicable to the retail sales.

       We conclude that a document reflecting that no use tax is being collected and the

document reflects that use tax due is "$0.00" cannot be considered false for purposes of the Act.

We agree with defendants' position that a document that reflects the tax due relating to a

transaction is $0 and that no tax was in fact being collected cannot be false for purposes of the

Act but, instead, represents a truthful assertion. We must emphasize that our inquiry here is not

to determine whether a knowingly false statement is required, which is the subject of the first

certified question but, instead, whether a statement that is factually true can be deemed false for

purposes of bringing a claim under the Act. Neither party here disputes that no use tax was

collected or that the invoices rendered to the purchasers reflected that no use tax was collected or

due. Since the documents at issue are factually true, in our view, factually true statements

cannot be considered sufficiently false for purposes of bringing a claim under the Act. See Fru-

                                                  17
1-05-1059

Con Construction Corp., slip op. at 17, citing Hindo v. University of Health Sciences/The

Chicago Medical School, 65 F.3d 608, 613 (7th Cir. 1995).



                                           Question 2(c)

       Next, we turn our attention to whether it is necessary that a false statement be submitted

to or actually relied upon by the State for purposes of the Act. We conclude the answer to this

question is no.

       Defendants contend that for a claim to fall within the purview of the Act, it must be

presented to and relied upon by the State. Defendants claim that the documents at issue here are

generated in the course of business and are given to customers who purchase goods from

defendants and the documents are not submitted to or relied upon by the State. Defendants

maintain that a record must be submitted to the government to establish liability under the FCA

and cite to the following cases in reliance for this proposition: Pickens, 916 F.Supp. at 708;

Wilkins, 885 F.Supp. at 1064; Hopper, 91 F.3d at 1266-67; United States ex rel. Karvelas v.

Melrose-Wakefield Hospital, 360 F.3d 220, 232 (1st Cir. 2004); United States ex rel. Clausen v.

Laboratory Corp. of America, Inc., 290 F.3d 1301, 1311 (11th Cir. 2002); United States ex rel.

Atkinson v. Pennsylvania Shipbuilding Co., No. CIV. A. 94-7316 (E.D. Pa. August 24, 2000);

and United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th

Cir. 1997). Defendants claim that an entity cannot "conceal, avoid or decrease an obligation ***

to the Government" based on a record unless the government sees the record. Defendants

contend that the trial court erred in relying on Pickens v. Kahawah River Towing, 916 F.Supp. at

708, which held that no reliance requirement exists, because the government would see and rely

                                                18
1-05-1059

on the allegedly false records at issue in Pickens. Defendants assert that the Act requires an

allegedly false statement or record to be submitted to or actually relied upon by the State to

constitute a violation of the Act.

        The State responds that documents are considered submitted to the State for purposes of

the Act if the State potentially may rely upon the documents. The State claims that the invoices,

order confirmations, and sales receipts that defendants distribute to retail purchasers are the same

records that the State relies on to determine defendants' tax burden and regulatory compliance

and direct submission to the State is not necessary. 35 ILCS 105/11 (West 2004); 35 ILCS 120/7

(West 2004); 86 Ill. Adm. Code §1305(b) (amended and eff. August 21, 1974). The State

maintains that it is sufficient that the State could have seen and relied upon the documents as part

of its regular operations to satisfy this element.

        The answer to this certified question is that a document is not required to be submitted to

or directly relied upon by the government to violate the Act. We note that the State relies upon

United States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189 (10th Cir. October 12, 2006),

which addressed the presentment requirement of documents to the government in the context of

reverse false claims actions. The issue addressed in Bahrani was whether export certificates

presented only to foreign governments could satisfy the false representation or presentment

requirement of a reverse false claims violation. Bahrani, 465 F.3d at 1206. The Bahrani court

concluded that according to the plain language of the reverse false claims statute, presentment of

documents to the government is not required. Bahrani, 465 F.3d at 1207; see also United States

ex rel. Koch v. Koch Industries, 57 F.Supp. 2d 1122, 1144 (N.D. Okla. 1999). In reaching this

conclusion, the Bahrani court considered the reverse false claims language in comparison to

                                                     19
1-05-1059

other sections of the false claims statute which, unlike the reverse false claims provision,

expressly require presentment to the government. Bahrani, 465 F.3d at 1207. Here, similar to

the presentment claim in Bahrani, the documents at issue were not presented directly to the

government, but were instead given directly to customers. Finding Bahrani persuasive, we also

conclude that actual presentment to and reliance on allegedly false documents by the government

is not required. See also Koch, 57 F.Supp. 2d at 1144 (noting that the bad act in reverse false

claims "is the making or using of a false statement or record.")



                                             Question 3

       Next, we address whether the Act is a proper vehicle for the collection of sales and use

tax. Our analysis first begins with whether claims brought under the Act afford taxpayers the

same protections afforded to claims brought under the tax laws. Defendants contend that the

sales and use tax laws and the Act are not equivalent and allowing the claims to proceed as

whistleblower claims denies defendants due process safeguards and creates a conflict with the

State's tax laws. Defendants maintain that the tax statutes provide rights and protections against

"unlawful exactions" that are not provided for under the Act, thereby creating a conflict between

the two statutes. Defendants claim that the trial court erroneously concluded that the tax statutes

and the Act are functionally equivalent in that they both seek collection of taxes. Defendants,

citing Humphrey, 189 F.Supp. 2d at 866-67, and United States ex rel. Gross v. AIDS Research

Alliance-Chicago, 415 F.3d 601 (7th Cir. 2005), contend that the Act exists to prevent fraud

against the State and to shield from retribution those who uncover wrongdoing, but does not

exist to collect taxes. Alternatively, defendants contend that the tax statutes exist to ensure the

                                                 20
1-05-1059

determination, assessment and collection of "tax properly due the State" by the Department.

Thus, defendants assert that a conflict between the Act and tax statutes exists, precluding the

filing of tax claims under the Act. In response, the State contends that defendants are afforded

protections provided to litigants in civil suits and, unlike alleged tax violations, do not bear the

burden of proof associated with tax deficiencies. Thus, the State claims that due process rights

are not sacrificed when tax-related claims are brought under the Act.

       We agree that the Illinois tax statutes are not identical to the Act, but we cannot reach the

definitive conclusion that tax claims can never be brought under the Act on the basis that the Act

does not provide the same safeguards and protections provided for under the tax laws. The State

correctly notes the distinguishing feature of claims brought under the Act is that these actions are

civil in nature and afford defendants the protections innate in all civil cause of actions, in

contrast to claims brought under the tax statutes, which afford defendants an opportunity to

dispute and settle assessed tax deficiencies.

       We have considered defendants’ claims that despite the protections afforded to

defendants under civil causes of action, these protections are not the same, specific protections

afforded to defendants under the tax laws. We must keep in mind, however, the nature of the

allegations at issue in the instant case. The nature of the claims here relates to defendants’

alleged fraudulent failure to collect and remit use tax. Defendants contend that it is improper to

bring claims under the Act when the Department has not yet assessed or determined any tax

liability relating to the claim of failing to pay use tax. Defendants correctly detail the

administrative process afforded to taxpayers when a dispute regarding an alleged failure to pay

taxes arises. See 35 ILCS 105/12 (West 2004); 35 ILCS 120/12 (West 2004). However, the

                                                  21
1-05-1059

specific inquiry and determination that must be made under the Act is whether defendants acted

knowingly in failing to pay use tax liabilities. The inquiry and dispute at issue here is not the

determination and disagreement over the amount of tax assessed, but whether defendants acted

with the requisite fraudulent intent and knowledge. In light of the nature of the claim and its

characterization as a civil cause of action, we cannot hold that the Act can never be used to

enforce the collection of taxes due to the State because it deprives defendants of due process

protections. See 740 ILCS 175/4 (West 2002). It is also worthy to note that the Act does not

seek to impose and collect a tax, but instead seeks to penalize actions that deprive the

government of funds rightfully owed to it regardless of the nature of the underlying transaction

giving rise to the claim.



                                             Question 4

       The answer to this question is that the Department is not the sole entity authorized to

assess and collect use tax when evidence of a defendant knowingly generating a false record or

statement to avoid payment of tax exists. Defendants contend that the Department has exclusive

authority to assess and collect use tax based on a statutory grant of authority; and as such, claims

filed to collect taxes cannot be brought under the Act. See Village of Niles v. K mart Corp., 158

Ill. App. 3d 521, 523-24, 511 N.E.2d 703, 704 (1987); People ex. rel. Fahner v. AT&T Co., 86

Ill. 2d 479, 487, 427 N.E.2d 1226, 1230 (1981). Defendants maintain that the trial court erred in

relying on People v. N L Industries, 152 Ill. 2d 82, 604 N.E.2d 349 (1992), because that case did

not involve the assessment or collection of a tax. Defendants claim that Fahner v. AT&T clearly

establishes that tax cases are handled differently from other proceedings and that the power to

                                                 22
1-05-1059

collect use taxes cannot be removed from the Department and brought under the Act. As such,

defendants assert that the Department is the sole entity authorized to assess and collect use tax.

       The State responds that nothing in the Administrative Procedures Act (5 ILCS 100/1-1 et

seq. (West 2004)) or the Use Tax Act (35 ILCS 105/12 (West 2004)) provides exclusive

jurisdiction in the Department to decide all use tax enforcement questions. Employers Mutual

Cos. v. Skilling, 163 Ill. 2d 284, 287, 644 N.E.2d 1163, 1165 (1994); Village of Itasca v. Village

of Lisle, 352 Ill. App. 3d 847, 855-56, 817 N.E.2d 160, 169 (2004). The State contends that the

Department has the authority to notify the Attorney General of an entity's violation of sales tax,

which lends support to the principle that the Attorney General can also enforce tax laws. See

N L Industries, 152 Ill. 2d at 102-03, 604 N.E.2d at 355-56.

       First, we note that the Illinois General Assembly has the power to generate revenue in the

state and to vest exclusive jurisdiction in an administrative agency. See Village of Lisle, 352 Ill.

App. 3d at 852, 817 N.E.2d at 166. We agree with the State that this court’s decision in Village

of Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 817 N.E.2d 160 (2004), is instructive here. In

Village of Lisle, this court, in relying upon the Illinois Supreme Court’s decision in Employers

Mutual Cos. v. Skilling, 163 Ill. 2d 284, 287, 644 N.E.2d 1163, 1165 (1994), held that explicit

exclusionary language must be expressed to confer exclusive jurisdiction upon an administrative

agency. Skilling, 163 Ill. 2d at 287, 644 N.E.2d at 1165; Village of Lisle, 352 Ill. App. 3d at 852,

817 N.E.2d at 166-67. Absent exclusive jurisdiction, concurrent jurisdiction exists. See Village

of Lisle, 352 Ill. App. 3d at 853, 817 N.E.2d at 167. We rely on the Village of Lisle decision as

precedent for establishing that the Department lacks exclusive authority to collect taxes since

that authority was not expressly exclusively granted to the Department. Defendants rely on

                                                 23
1-05-1059

Fahner v. AT&T, 86 Ill. 2d 479, 427 N.E.2d 1226 (1981), in which the Illinois Supreme Court

held that the Department alone has the authority to determine whether an entity is a taxpayer

within the meaning of the Message Tax Act. We express no opinion on the applicability of

Fahner here in light of the different taxing statutes at issue and, instead, rely on the Illinois

Supreme Court’s subsequent decision in Skilling.

        Turning to the Nevada Supreme Court’s decision in International Game Technology, Inc.

v. Second Judicial District Court of the State of Nevada, 122 Nev. 132, ____, 127 P.3d 1088,

1105 (2006), which defendants rely upon, we note that the court held that the department of

revenue does not have exclusive control over all proceedings related to tax issues. The Nevada

Supreme Court did not conclude that claims are precluded from being brought under the state's

false claims act. See International Game Technology, Inc., 122 Nev. at ___, 127 P.3d at 1105.

Rather, the Nevada Supreme Court noted that the state's revenue statutes do not provide the tax

commission with exclusive jurisdiction over tax matters and, thus, tax matters may fall under the

FCA's scope even if they arise out of allegations based on money owed under the revenue

statutes. International Game Technology, Inc., 122 Nev. at ___, 127 P.3d at 1104. The Nevada

Supreme Court did continue to hold, however, that determinations requiring an analysis of sales

and use tax statutes are "determinations better left to the tax department in order to promote

consistency and uniformity." International Game Technology, Inc., 122 Nev. at ___, 127 P.3d at

1108.

        Similarly, this court in Village of Lisle, acknowledged that where an administrative

"agency’s technical expertise would help resolve the controversy, or when there is a need for

uniform administrative standards," authority to resolve the dispute should be relinquished to the

                                                  24
1-05-1059

administrative agency. Village of Lisle, 352 Ill. App. 3d at 853, 817 N.E.2d at 167. In the

Village of Lisle case, at issue was whether the defendant was filing false reports to the

Department for sales tax purposes. Village of Lisle, 352 Ill. App. 3d at 855, 817 N.E.2d at 168.

This court in Village of Lisle held that since little interpretation of the tax laws was required to

determine the defendant's proper site for sales-tax purposes and the trial court was only required

to make a finding of fact whether the defendant was misrepresenting that site, resolution of those

issues did not require the Department’s technical expertise and the trial court could properly

resolve the issues. Village of Lisle, 352 Ill. App. 3d at 855, 817 N.E.2d at 168-69. The Village

of Lisle holding lends further support for the proposition that the Department lacks exclusive

authority in addressing tax issues. See Village of Lisle, 352 Ill. App. 3d at 853-54, 817 N.E.2d at

167-68. Although the Village of Lisle case dealt with sales tax issues, we note that the sales tax

is comprised of the two complementary statutes, consisting of the Retailers’ Occupation Tax (35

ILCS 120/1 et seq. (West 2004)) and the Use Tax Act (35 ILCS 105/1 et seq. (West 2004)).

Brown v. Zehnder, 295 Ill. App. 3d 1031, 1034, 693 N.E.2d 1255, 1258 (1998). Thus, we deem

the rationale set forth in the Village of Lisle to also be applicable to use tax. Accordingly, the

Department is not the sole entity authorized to handle tax-related claims relating to the

assessment and collection of use tax.

       We believe it is important to draw a distinction that is not fully drawn by defendants.

This appeal is not seeking to assess and collect tax on defendants, which defendants contend is

within the exclusive jurisdiction of the Department. If this were the situation, then the

Department would conduct an audit of defendants' records and impose any deficient taxes on

defendants. Rather, the underlying claim in the instant case is that defendants knowingly failed

                                                  25
1-05-1059

to remit use tax to the State as defined by the Act and falsified documents. The nature of these

allegations exceeds a claim for a tax deficiency, which would fall within the purview of the

Department's powers to assess and collect use taxes. Instead, the allegations here relate to the

intent underlying defendants' alleged creation of false records and statements, which is an area

that does not require the Department's specialized knowledge and is an area that the Attorney

General is more than competent to address. Accordingly, based on the nature of the claims

raised in the instant case, the Department is not the sole entity authorized to assess and collect

use tax when allegations of false records and statements exists.



                                             Question 5

       Our answer to this certified question is that alleged use tax claims relating to Internet

and/or catalog sales may be brought under the Act. Defendants point to the FCA’s language,

which the Illinois Act was patterned after, that expressly excludes all tax matters under the

Internal Revenue Code from falling within the purview of the FCA. Defendants maintain that

the Act’s express language that states it does not apply to the Illinois Income Tax Act (35 ILCS

5/101 et seq. (West 2004) should be extended to also exclude the Use Tax Act. Defendants

contend that the Illinois legislature contemplated that not all Illinois taxes are incorporated in the

Illinois Income Tax Act when it replaced the phrase “Internal Revenue Code” with “Illinois

Income Tax Act” in adopting the FCA. Thus, defendants assert that the Act does not apply to

the Use Tax Act.

       The State responds that the Act does not exclude claims to enforce use tax obligations.

The State notes that the Act expressly states that it "does not apply to claims, records, or

                                                  26
1-05-1059

statements made under the Illinois Income Tax Act." 740 ILCS 175/3(d) (West 2002). The

State notes that in drafting the Act, the General Assembly included income tax claims, but did

not include use tax claims, which indicates the General Assembly's intent to exclude use tax

claims as falling under the Act's scope. See Mattis v. State Universities Retirement System, 212

Ill. 2d 58, 78, 816 N.E.2d 303, 314 (2004).

       We reject defendants’ contention that the legislature did not contemplate extending the

Act’s exclusionary language to include the Use Tax Act. The legislature is entrusted with the

power to enact the laws of the State of Illinois, including tax laws, and to raise revenue for this

State. We must reject defendants’ contention that the legislature was unaware that a separate

taxing scheme apart from the income taxes of the State exists when it adopted the FCA and

overlooked expressly excluding those taxes from the Act. The fundamental rule of statutory

construction is to determine and give effect to the intent of the legislature, and the statutory

language is the best indicator of the legislature’s intent. Quality Saw & Seal, Inc. v. Illinois

Commerce Comm’n, 374 Ill. App. 3d 776, 781, 871 N.E.2d 260, 265 (2007). In interpreting a

statute, we cannot find an additional statutory exclusion where one was not provided for by the

legislature. City of Chicago v. Air Auto Leasing Co., 297 Ill. App. 3d 873, 878-79, 697 N.E.2d

788, 791 (1998). The Illinois FCA, which is a provision within the Act, expressly states that

“this section does not apply to claims, records, or statements made under the Illinois Income Tax

Act.” 740 ILCS 175/4 (West 2002). Accordingly, under the plain language of the Act, we

conclude that use tax claims may be brought under the Act.




                                                  27
1-05-1059

                                            Question 6(a)

       Our answer to this certified question is that the Act is constitutional and does not

improperly usurp the exclusive authority of the Attorney General to initiate and conduct

litigation on behalf of the State. Defendants claim that the Act's provisions directly conflict with

the Attorney General's "exclusive constitutional power and prerogative to conduct the state's

legal affairs." (Emphasis in original.) Lyons v. Ryan, 201 Ill. 2d 529, 540, 780 N.E.2d 1098,

1105 (2002). Defendants claim that as a result of the relator’s involvement in the proceedings, it

would be nearly impossible to identify and segregate the Attorney General’s independent role in

the litigation. Thus, the Act usurps the Attorney General's powers.

       In response, the State contends that the Illinois Supreme Court previously rejected this

same contention in Scachitti v. UBS Financial Services, 215 Ill. 2d 484, 831 N.E.2d 544 (2005).

The State claims that in Schachitti, the Illinois Supreme Court held that the Act was not

unconstitutional because the Attorney General retains the authority to control the litigation at

every stage of the proceedings. Scachitti, 215 Ill. 2d at 511, 831 N.E.2d at 560. Thus, following

Schachitti, the State maintains that the Act is constitutional.

       We agree with the State that the Act is constitutional. We rely on our state supreme

court's decision in Scachitti. In Scachitti, the Illinois Supreme Court addressed whether the Act

usurped the Attorney General's constitutional powers to represent the State. Scachitti, 215 Ill. 2d

at 509, 831 N.E.2d at 559. The supreme court answered the question in the negative. Scachitti,

215 Ill. 2d at 510, 831 N.E.2d at 559. The supreme court reasoned that the Attorney General

retains the authority to control the litigation whereas the qui tam plaintiffs may conduct the

litigation on the State's behalf. Scachitti, 215 Ill. 2d at 510, 831 N.E.2d at 560. Retaining this

                                                  28
1-05-1059

control, the supreme court concluded, precludes a finding that the Act usurps the Attorney

General's constitutional power. Scachitti, 215 Ill. 2d at 513, 831 N.E.2d at 561. The supreme

court further held that "the qui tam provision of the Act is a 'constitutional statute,' as it does not

usurp the Attorney General's constitutional power to conduct the legal affairs of the state when

the state is a real party in interest." Scachitti, 215 Ill. 2d at 515, 831 N.E.2d at 562. In light of

the Illinois Supreme Court's definitive conclusion that the Act does not usurp the Attorney

General's constitutional powers, we are not in a position to conclude otherwise. We further rely

on this court's decision in State ex rel. Beeler, Schad & Diamond v. Burlington Coat Factory

Warehouse, 369 Ill. App. 3d 507, 860 N.E.2d 423 (2006), which is a case factually similar to the

instant case. This court in Beeler, Schad & Diamond, relying on Schahitti, concluded that the

Attorney General retains almost complete control over qui tam proceedings. Beeler, Schad &

Diamond, 369 Ill. App. 3d at 515, 860 N.E.2d at 429. Accordingly, we too hold that the Act

does not usurp the Attorney General’s powers and is constitutional.



                                            Question 6(b)

        Finally, we turn to the last certified question and answer this question that the Act does

not violate the Attorney General clause and the executive compensation clause of the Illinois

Constitution, article V, sections 15 and 21. Section 15 of the Illinois Constitution provides that

"[t]he Attorney General shall be the legal officer of the State, and shall have the duties and

powers that may be prescribed by law." Ill. Const. 1970, art. V, §15. The executive

compensation clause of the Illinois Constitution states, in pertinent part: “Officers of the

Executive Branch shall be paid salaries established by law and shall receive no other

                                                  29
1-05-1059

compensation for their services.” Ill. Const. 1970, art. V, §21. Defendants contend that the Act

cannot be used as a tax assessment and collection mechanism because the Attorney General

clause and the executive compensation clause preclude payment to private attorneys for the

collection of tax monies on behalf of the State. Saltiel v. Olsen, 85 Ill. 2d 484, 493-94, 426

N.E.2d 1204, 1209 (1981). Defendants claim that the relator is acting as a private attorney in the

collection of tax money owed to the State pursuant to the Act and, thus, cannot receive

compensation for those services under the Illinois Constitution.

        Defendants rely on Saltiel, where the Illinois Attorney General protested the payment of

fees to plaintiffs in a matter involving a challenge to the constitutionality of a real estate transfer

tax. The Illinois Supreme Court in Saltiel concluded that the executive compensation clause was

not violated because the Attorney General did not hire the attorneys that represented the

plaintiffs in the litigation. Saltiel, 85 Ill. 2d at 493-94, 426 N.E.2d at 1209. The attorneys in

Saltiel were paid from a common fund, which contained State tax revenues, that was created

from successfully invalidating a tax. Saltiel, 85 Ill. 2d at 491, 493-94, 426 N.E.2d at 1207.

Defendants contend that even though the attorneys are not salaried employees in the instant case,

public tax monies are being spent to support private attorneys’ litigation associated with the

collection of monies owed to the State and the State would be obligated to pay the relator a

percentage of the tax money recovered under the proceedings. Thus, defendants maintain that

tax claims brought under the Act violate the Attorney General and executive compensation

clauses of the Illinois Constitution because private attorneys are receiving compensation from

the State for duties belonging to the Attorney General.



                                                  30
1-05-1059

        In response, the State claims that the Act is an antifraud statute and not a tax collection

statute, and fees relators receive are from the litigation’s proceeds as a reward for detecting fraud

upon the State. The State also claims that the executive compensation clause is not violated

because fees paid from a common fund are not fees paid by the State. Thus, no violation of the

executive compensation clause exists.

        In our view, the Act does not violate the Attorney General clause and the executive

compensation clause of the Illinois Constitution. Resources spent in litigating a matter brought

in conjunction with qui tam proceedings cannot be equated with the State expending money to a

private attorney. The State correctly notes that the Act is an antifraud act and not a tax collection

act, and, thus, the money a relator receives upon a successful litigation of a claim brought under

the Act should not be equated with compensation paid to attorneys for services rendered. We

note that the proceedings in the instant case and in Saltiel addressed tax matters. Albeit in

Saltiel, the issue addressed related to the constitutionality of a tax and here the issue relates to

the alleged nonpayment of use tax. This factual distinction does not render the instant matter in

violation of the Illinois Constitution. Moreover, the fees paid by the State to the relator are a

percentage of the fees collected relating to the falsely filed records and do not relate directly to

the collection of taxes. Thus, we do not believe that the Act violates either the Attorney General

Clause or the executive compensation clause of the Illinois Constitution.




                                                  31
1-05-1059

                                        CONCLUSION

      In light of the above, the certified questions are answered as follows:



             Question 1

             No, a remote retailer cannot make a "knowingly" false record or statement to

             create liability under the Act if the retailer discloses that no use tax is due or

             collected based on the taxpayer's reasonable interpretation of the law.

             Question 2

             (a) Yes, the Act under the facts of the instant case requires the existence of an

             actual record or statement.

             (b) No, documents memorializing a purchase that discloses that no use tax is

             being collected cannot be considered false sufficient to create liability under the

             Act.

             (c) No, under the Act, a false record or statement does not have to be submitted

             to or directly relied upon by the State.

             Question 3

             No, claims brought under the Act do not deprive defendants of rights and

             privileges such that the Act cannot be used to enforce the collection of taxes due

             the State based on false records and statements because litigants are afforded the

             protections provided to all litigants in civil proceedings.




                                                32
1-05-1059

             Question 4

             No, the Illinois Department of Revenue is not the sole entity authorized by the

             Illinois General Assembly to assess and collect use tax when defendants create

             fraudulent records and statements relating to taxes due to the State.

             Question 5

             Yes, the Act applies to alleged tax liabilities under the Use Tax Act when

             fraudulent records and statements exists.

             Question 6

             (a) No, the Act does not violate the Attorney General clause of the Illinois

             Constitution by improperly usurping the Attorney General's exclusive authority to

             initiate and conduct litigation on the State's behalf because in qui tam

             proceedings, the Attorney General still maintains control over the proceedings.

             (b) No, the Act does not violate the Attorney General clause or the executive

             compensation clause of the Illinois Constitution because the relator that files a

             claim on behalf of the State is not directly paid by the State for services rendered.



      Certified questions answered; cause remanded.

      FITZGERALD SMITH, P.J., and O'MARA FROSSARD, J., concur.




                                              33
