                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                   Hartney Fuel Oil Co. v. Hamer, 2012 IL App (3d) 110144




Appellate Court            HARTNEY FUEL OIL COMPANY, Plaintiff-Appellee, v. BRIAN A.
Caption                    HAMER, in His Official Capacity as Director, Department of Revenue;
                           and DAN RUTHERFORD, in His Official Capacity as Treasurer of
                           Illinois, Defendants-Appellants (The Board of Commissioners of Putnam
                           County, and The Board of Trustees of the Village of Mark, Plaintiffs-
                           Intervenors; Board of Trustees of the Village of Forest View, Illinois;
                           County of Cook, and The Regional Transportation Authority, Defendants
                           and Intervenors-Appellants).


District & No.             Third District
                           Docket Nos. 3-11-0144, 3-11-0151 cons.


Filed                      September 17, 2012


Held                       Plaintiff’s liability for state and local sales taxes on its sale of gasoline to
(Note: This syllabus       gas stations and other distributors was fixed in Putnam County, the
constitutes no part of     county where its sales operations were located and all daily and long-term
the opinion of the court   purchase orders were “accepted,” and no statutory authority prohibited
but has been prepared      plaintiff from structuring its sales procedures to minimize its tax liability
by the Reporter of         by placing its sales operations in a county without local sales taxes.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Putnam County, Nos. 2008-MR-11,
Review                     2008-MR-13, 2008-MR-15; the Hon. Scott A. Shore, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Timothy Bertschy (argued), Karen L. Kendall, Brad A. Elward, and
Appeal                     Maura Yusof, all of Heyl, Royster, Voelker & Allen, of Peoria, for
                           appellant Regional Transportation Authority.

                           Judith Kolman, of Rosenthal, Murphey, Coblentz & Donahue, of
                           Chicago, for appellant Village of Forest View.

                           Anita M. Alverez, State’s Attorney, of Chicago (Allison C. Marshall,
                           Assistant State’s Attorney, of counsel), of Chicago, for appellant County
                           of Cook.

                           Lisa Madigan, Attorney General, of Chicago (Paul Berks (argued),
                           Assistant Attorney General, of counsel), for appellant Department of
                           Revenue.

                           Charles K. Schafer, Robert N. Hochman (argued), and Scott J. Heyman,
                           all of Sidley Austin, LLP, of Chicago, and Michael T. Reagan, of Law
                           Offices of Michael T. Reagan, of Ottawa, for appellee Hartney Fuel Oil
                           Company.

                           James A. Mack, State’s Attorney, of Hennepin, for Board of
                           Commissioners of Putnam County.

                           David A. Rolf and Todd M. Turner, both of Sorling, Northrup, Hanna,
                           Cullen & Cochran, Ltd., of Springfield, and Douglas J. Schweickert, of
                           Schweickert & Ganassin, of Peru, for Board of Trustees of Village of
                           Mark.


Panel                      JUSTICE McDADE delivered the judgment of the court, with opinion.
                           Presiding Justice Schmidt concurred in the judgment, with opinion.
                           Justice Carter dissented, with opinion.


                                             OPINION

¶1          The underlying dispute arises as the result of an audit determination made by the Illinois
        Department of Revenue (IDOR) that sales of Hartney Fuel Oil Co. (Hartney) were subject
        to state and local sales taxes in Forest View in Cook County, Illinois, rather than being
        subject only to state sales tax (as there are no applicable local sales taxes) in Mark, Putnam


                                                 -2-
     County, Illinois, during the subject audit period.1
¶2        Hartney, the Village of Mark and the County of Putnam (hereinafter referred to
     collectively as plaintiffs) sought declaratory and injunctive relief to (1) determine that the
     situs of Hartney’s sales had been in Mark, (2) redirect the local share of collected state sales
     taxes to the Village of Mark and the County of Putnam, and (3), as to Hartney, provide relief
     from tax, penalties and interest assessed against Hartney, and return of sales taxes paid under
     protest and held in the State of Illinois’s protest fund. After a bench trial, the trial court
     granted the requested relief. Defendants, Brian A Hamer and Dan Rutherford, in their official
     capacities, and the Village of Forest View, the County of Cook, and the Regional
     Transportation Authority (hereinafter referred to collectively as defendants), appeal from the
     trial court’s judgment. We affirm.

¶3                                          FACTS
¶4                                          Hartney
¶5       Hartney is a fuel marketing company that purchases fuel oil from large fuel suppliers and
     sells it to customers such as railroads, trucking companies, gas stations and other fuel
     distributors. In or around 1985, Hartney moved its sales operations out of its headquarters
     in Cook County (Forest View) to Du Page County (Elmhurst) because the lower tax rates in
     Du Page County allowed it to offer competitive prices to customers. Hartney moved its sales
     office several other times over the ensuing years, finally locating it in Putnam County
     (Mark), in 2003. Hartney’s headquarters, however, remained in Forest View until November
     2008, when Hartney also moved its corporate and accounting staff to Mark.
¶6       Upon moving its sales operations to Mark, Hartney contracted with Putnam County
     Painting (Putnam Painting) to provide office space and personnel. The agreement named
     Putnam Painting to be its managing sales agent and to provide Hartney with a sales
     representative to receive, accept and process fuel purchase orders from Hartney customers.
     Hartney paid Putnam Painting $1,000 per month for personal sales services and for office
     space.
¶7       The owners of Hartney also owned Energy Transportation, Inc. (ETI), a separate
     corporation providing the services of a common carrier. During the relevant time frame, the
     two corporations (Hartney and ETI) shared corporate headquarters in Forest View, while
     Hartney maintained a separate designated sales office elsewhere. Peter Hartney was the


             1
               While the State of Illinois’s share of sales tax is the same 6.5% throughout the state
     regardless of situs, additional sales taxes totaling 2.5% are collected by IDOR on behalf of local
     home rule taxing districts including the Village of Forest View, the County of Cook, and the
     Regional Transportation Authority, each of which has authority to levy additional sales taxes against
     sales situated within its jurisdiction. As those taxing districts stand to receive the benefit of IDOR’s
     audit findings, they have been permitted to intervene. Of the state’s 6.5% tax, a small share inures
     to the benefit of local municipalities (village and county) to which sales are sourced, giving the
     Village of Mark and the County of Putnam standing to seek equitable relief in the case. Thus, they
     have also been allowed to intervene.

                                                   -3-
       president of Hartney. Gary Hartney was the president of ETI. While Hartney moved its
       corporate and accounting staff to Mark in November 2008, ETI continued to operate from
       its sole offices in Forest View.
¶8          Ever since Hartney first moved its sales operation out of its headquarters in Forest View
       in 1995, it has conducted its sales in the same manner. Those sales can be broken down into
       two main categories: (1) ad hoc sales made to established customers who, on any given day,
       call Hartney’s sales office and place an order for a specific quantity of fuel oil to be delivered
       at a specific time and location (daily purchase orders), and (2) sales made to customers via
       long-term requirements contracts, with the terms of sale–such as price and location of
       delivery–established in advance (long-term purchase orders).

¶9                                     Daily Purchase Orders
¶ 10       With respect to ad hoc purchase orders, Hartney customers were informed nightly via
       facsimile or some other form of electronic communication of the next day’s price for fuel oil.
       These customers also received similar solicitations from competing fuel marketers in the
       area. If a customer wished to purchase fuel from Hartney, the customer contacted its sales
       office to place the order. The customer provided the sales office with the type of fuel, the
       quantity, and the time and location where delivery was needed, as well as any special
       instructions. In a majority of circumstances, Hartney’s sales agent in Mark accepted a
       customer’s order on the spot,2 and then arranged for delivery by contacting ETI.
¶ 11       On rare occasions (principally where the customer had not previously passed a credit
       check or had been placed on credit hold), the sales agent in the Mark office would reject a
       customer’s purchase order. The sales agent knew in advance which customers had been pre-
       approved or placed on credit hold, so it was not necessary for the agent to check with
       Hartney’s headquarters to determine whether to accept or reject the orders.
¶ 12       From the time an order was placed with the Mark sales office until a bill was prepared
       by Hartney’s accounting staff, the sales agents (located in Mark) were the sole individuals
       involved in processing the order. Fuel deliveries were the responsibility of ETI, which had
       no ability to reject or otherwise affect Hartney’s acceptance of that order.

¶ 13                                Long-Term Purchase Orders
¶ 14       Long-term purchase orders were negotiated with customers by Peter Hartney. Peter
       generally signed the agreement first and then sent the agreement to the customer. The
       customer then signed the agreement and sent it back to the Mark sales office. If Peter had not
       signed the contract first, the customer mailed the partially executed agreement to the Mark
       sales office. Peter would then travel to the Mark sales office to sign the contract. The fully
       executed contract would then be mailed from the Mark sales office to the customer. The


               2
                In some small percentage of cases, Hartney’s sales agent in Mark would first check with
       ETI to see when delivery could be made and confirm that timing with the customer before accepting
       the purchase order.

                                                  -4-
       originals of the sales contracts were stored at the Mark sales office, with copies sent to the
       customer as well as to Hartney’s accounting department in Forest View. The price for some
       long-term purchase order customers did not include freight. These customers often hired a
       common carrier to retrieve their fuel from a Hartney terminal. In some cases, the common
       carrier selected by the customers was ETI.

¶ 15                                         Past Audits
¶ 16        Between 1990 and the present appeal, IDOR audited Hartney’s operations eight times.
       Five of those audits covered periods during which Hartney had a sales office separate from
       its Forest View headquarters.
¶ 17        In 1998, IDOR audited Hartney’s payment of both retailers’ occupation tax (ROT) and
       motor fuel tax (MFT) in connection with Hartney’s sales out of its Du Page County office.
       In connection with that audit, Joseph Stratman, an agent with IDOR’s Bureau of Criminal
       Investigations, visited Hartney’s sales office in Du Page County. Stratman concluded that
       Hartney was accepting orders in Du Page County and thus subject to the Du Page County
       MFT.
¶ 18        The auditor, having consulted Stratman, concluded that all orders were accepted in Du
       Page County and thus agreed that Hartney was subject to Du Page County MFT. Hartney and
       IDOR litigated the assessment. While both agreed that Hartney’s sales were accepted at the
       Du Page County sales office, Hartney interpreted the Du Page County MFT as applying to
       sales made only to locations within Du Page County. IDOR, however, interpreted the
       Du Page County MFT as being a point-of-acceptance tax like the ROT. As a result of finding
       that Hartney accepted all purchase orders at its sales office in Du Page County, IDOR levied
       a $3 million assessment against Hartney.
¶ 19        In late 1998, Hartney moved its sales office to La Salle County–a county that did not
       charge additional MFT on any sales. Hartney operated its sales office in La Salle County in
       substantially the same manner in which it had operated its sales office in Du Page County.
       IDOR sent an individual to the La Salle County office to investigate Hartney’s La Salle
       County sales operations. In 2001, the IDOR audited Hartney’s payment of ROT over the
       period of September 1, 1998 to August 31, 2001. The audit produced no adjustments, finding
       that all sales during the applicable period occurred in La Salle County.

¶ 20                                        Current Audit
¶ 21       In August 2003, Hartney opened the Mark sales office, which operated in the same
       manner as had the La Salle and Du Page County offices.3 Hartney reported that substantially
       all of its fuel sales occurred in Mark. Shortly after Hartney moved to Mark, IDOR sent a
       representative to visit the Mark sales office. That representative asked a number of questions
       regarding how Hartney’s sales agent in Mark performed her duties. The representative


              3
                 Hartney’s final move from La Salle County to Mark was the result of La Salle County
       raising its sales tax rate by 0.25%.

                                                -5-
       witnessed the sales agent accept a purchase order on behalf of Hartney then left and did not
       return.
¶ 22        IDOR audited Hartney from January 1, 2005, until June 30, 2007. Gerise Ricard was
       assigned to the Hartney audit. Ricard completed an audit history worksheet, and she and her
       supervisor, Robert Szymanski, also prepared an audit narrative setting out the bases for the
       IDOR’s audit conclusion. In conducting Hartney’s audit, Ricard did not review any of
       Hartney’s past audit files. Neither Ricard nor anyone else from IDOR ever visited the Mark
       sales office or spoke to any of the individuals who worked in that office in connection with
       the audit. In May 2008, as the audit was nearing its completion, IDOR destroyed the prior
       audit files relating to its investigations of Hartney.
¶ 23        Ricard ultimately determined, based on nine audit conclusions, that Hartney’s sales were
       attributable to Forest View, not Mark. As a result, on September 5, 2008, IDOR issued a
       notice of tax liability (NTL) for the 2005-07 audit period. The NTL reflected Forest View’s
       1% ROT rate, Cook County’s 0.75% ROT rate, and the Regional Transportation Authority’s
       (RTA) 0.75% ROT rate, as well as interest and penalties, for a total of $23,111,939.11 (the
       disputed tax).

¶ 24                                       Procedural History
¶ 25        Hartney paid the disputed tax under protest. On November 7 and 17, 2008, Hartney
       initiated two lawsuits (cases No. 08 MR 13 and No. 08 MR 15) pursuant to the State Officers
       and Employees Money Disposition Act (Protest Monies Act) (30 ILCS 230/2a.1 (West
       2008)). The first of these cases related to the disputed tax, and the second to IDOR’s
       refusal–starting in the fall of 2008–to remit the local portion of Hartney’s tax payments to
       Mark and Putnam County. Earlier, on October 3, 2008, the board of commissioners of
       Putnam County and the board of trustees of the Village of Mark had filed suit (case No. 08
       MR 11) seeking relief from IDOR’s refusal to remit the local portion of Hartney’s tax
       payments to those entities. The three cases were consolidated on February 9, 2009.
¶ 26        After a bench trial, the trial court issued judgment in favor of plaintiffs. The court held
       that plaintiffs showed by a preponderance of the evidence that (1) Hartney’s daily purchase
       orders “were completed and accepted at its dedicated sales office in Mark, Illinois,” and (2)
       the long-term purchase orders “became binding upon execution and return to the Mark sales
       office, whether signed first or later signed in Mark by President Peter Hartney.” Additionally,
       the court found that IDOR had violated its common law duty to preserve the prior audit
       records that it had destroyed and therefore permitted plaintiffs to argue a negative inference
       from IDOR’s failure to produce the records of the previous audits.
¶ 27        Regarding the audit itself, the court determined that “the audit process was, in several
       determinative aspects, flawed, incomplete, factually unsupported, and legally in error.”
       Ultimately, the court stated that “the subject audit was premised upon incomplete, factually
       wrong, and legally misunderstood findings, but for which the audit result would likely have
       favored [Hartney’s] continued and previously condoned practice of operating a separate
       dedicated sales office in a tax venue of its choice.” Specifically, the court stated:
            “Plaintiffs’ evidence overcomes any presumptive correctness of the Department’s

                                                 -6-
          assessment by competent, credible evidence, and proves Plaintiffs’ opposite conclusions
          by greater than a preponderance of the evidence.
              *** Plaintiffs have proven by greater than a preponderance of the evidence that
          [Hartney’s] daily and long term sales throughout the subject audit period, were sitused
          and taxable at its dedicated sales office located in the Village of Mark, County of
          Putnam, Illinois. Accordingly, it is the judgment of this Court that Plaintiffs are entitled
          to release and disbursement of applicable taxes, reimbursement to them of sums paid
          under protest, and abatement or refund of interest and penalties previously assessed, to
          the extent consistent with this judgment.”

¶ 28                                         ANALYSIS
¶ 29                                     Standard of Review
¶ 30        As the trial court correctly observed, the instant case does not involve administrative
       review.4 Instead, the claims were filed pursuant to the Protest Monies Act (30 ILCS 230/1
       et seq. (West 2010)), which allows a taxpayer to seek judicial determination of a tax dispute,
       as an alternative to exhausting its administrative remedies and pursuing judicial review by
       way of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). Stated
       another way, the Protest Monies Act allows a taxpayer willing to pay under protest to avoid
       the administrative protest procedures provided by Illinois law.
¶ 31        The Protest Monies Act provides a mechanism for a party to challenge the propriety of
       its required payment of money to the State of Illinois. 30 ILCS 230/1 et seq. (West 2010).
       To do so, the party must tender the money under protest. 30 ILCS 230/2a (West 2010). The
       recipient of funds paid under protest must then notify the Treasurer of the State of Illinois
       (30 ILCS 230/2a (West 2010)), who then places the money in a special fund known as the
       protest fund (30 ILCS 230/2a (West 2010)). Thirty days after payment, the money may be
       transferred out of the protest fund and deposited into the fund in which it would have been
       placed had there been payment without protest, unless the party making the payment under
       protest has filed a complaint and secured a temporary restraining order or a preliminary
       injunction restraining the transfer of the money. 30 ILCS 230/2a (West 2010). Once a
       temporary restraining order or preliminary injunction is issued, the money must remain in
       the protest fund until the final judgment of the trial court. 30 ILCS 230/2a (West 2010).
¶ 32        The supreme court has yet to identify what standard applies when a trial court is faced
       with a specific claim brought pursuant to the Protest Monies Act. The parties, however,
       appear to agree that the trial court below applied the correct standard when examining the
       merits of the instant case. The court stated:
                “Plaintiffs bear the burden of proof by a preponderance of the evidence as to each
            cause of action alleged. The State defendants begin with a prima facie advantage, being
            entitled to a rebuttable presumption of accuracy as to IDOR’s audited assessment
            provided the same is shown to have met minimum standards of reasonableness premised


              4
                  The parties acknowledge this case does not involve administrative review.

                                                   -7-
           upon its best judgment. As Plaintiffs have the ultimate burden of proof, however, that
           burden requires Plaintiffs to necessarily overcome the State defendants’ prima facie
           presumption of correctness. If that presumption is indeed overcome, Plaintiffs must still
           proceed to meet their burden of proof, which the State may seek to rebut by not only
           meeting ‘minimum standards’ or using ‘best judgment,’ but with the loftier goal of being
           right. The parties accurately point out that this is not an administrative review in which
           fact issues would be determined on the basis of whether an agency ruling was contrary
           to the manifest weight of the evidence before it. To the contrary, this Court is to weigh
           the evidence to determine whether Plaintiffs have met their burden as above-stated.”
¶ 33       Because the parties appear to agree that the trial court below applied the correct standard
       we offer no opinion on this issue. Our discussion of the applicable standard is for the sole
       purpose of giving context to the trial court’s factual findings and its ultimate disposition.
¶ 34       On appeal, we apply a dual standard of review. We review legal issues de novo and
       factual issues under a manifest weight of the evidence standard. Corral v. Mervis Industries,
       Inc., 217 Ill. 2d 144, 153 (2005). We note that the supreme court has only applied the clearly
       erroneous standard to decisions of administrative agencies. Samour, Inc. v. Board of Election
       Commissioners, 224 Ill. 2d 530, 542 (2007). It has expressly chosen to apply the above dual
       standard “[i]n all other civil cases.” Samour, 224 Ill. 2d at 542.

¶ 35                                       Statutory Law
¶ 36       The issue in the present case is whether the trial court erred in finding that Hartney’s
       daily and long-term sales throughout the subject audit period were sitused and taxable at its
       dedicated sales office located in the Village of Mark, County of Putnam, Illinois. The trial
       court correctly explained that there are three relevant sections of title 86 of the
       Administrative Code, which involve levying local sales taxes: (1) one section permitting a
       home rule county to levy its own ROT (86 Ill. Adm. Code 220 et seq.), (2) another permitting
       a home rule municipality to levy its own ROT (86 Ill. Adm. Code 270 et seq.), and (3) a third
       specifically permitting the regional transit authority to levy its own separate ROT (86 Ill.
       Adm. Code 320 et seq.).5
¶ 37       For a seller to incur the relevant ROT in a given county, municipality or metropolitan
       region, the sale must be made in the course of such seller’s engaging in the retail business
       within the county, municipality or metropolitan region. See 86 Ill. Adm. Code 220.115(b)(1),
       270.115(a)(1), 320.115(a)(1) (2000). In other words, enough of the selling activity must
       occur within the county, municipality or metropolitan region to justify concluding that the
       seller is engaged in business within the county, municipality or metropolitan region with
       respect to that sale. See 86 Ill. Adm. Code 220.115(b)(1), 270.115(a)(1), 320.115(a)(1)
       (2000). The above authority can be found in each of the three relevant sections under the
       respective subsection entitled, “Mere Solicitation of Orders Not Doing Business.” See 86 Ill.
       Adm. Code 220.115(b), 270.115(a), 320.115(a) (2000).

               5
                 These three regulations are nearly parallel. Any minor distinctions do not impact the result
       of this appeal.

                                                    -8-
¶ 38      Each of the above three sections expressly provides that “the seller’s acceptance of the
       purchase order or other contracting action in the making of the sales contract is the most
       important single factor in the occupation of selling.” See 86 Ill. Adm. Code 220.115(c)(1),
       270.115(b)(1), 320.115(b)(1) (2000). Specifically, section 220.115(c)(1) states:
              “c) Seller’s Acceptance of Order
                   1) Without attempting to anticipate every kind of fact situation that may arise in
              this connection, it is the Department’s opinion, in general, that the seller’s acceptance
              of the purchase order or other contracting action in the making of the sales contract
              is the most important single factor in the occupation of selling. If the purchase order
              is accepted at the seller’s place of business within the county or by someone who is
              working out of that place of business and who does not conduct the business of
              selling elsewhere within the meaning of subsections (g) and (h) of this Section, or if
              a purchase order that is an acceptance of the seller’s complete and unconditional offer
              to sell is received by the seller’s place of business within the home rule county or by
              someone working out of that place of business, the seller incurs Home Rule County
              Retailers’ Occupation Tax liability in that home rule county if the sale is at retail and
              the purchaser receives the physical possession of the property in Illinois. The
              Department will assume that the seller has accepted the purchase order at the place
              of business at which the seller receives the purchase order from the purchaser in the
              absence of clear proof to the contrary.” (Emphases added.) 86 Ill. Adm. Code
              220.115(c)(1) (2000).
       Section 270.115(b)(1) states:
              “b) Seller’s Acceptance of Order
                   1) Without attempting to anticipate every kind of fact situation that may arise in
              this connection, it is the Department’s opinion, that the seller’s acceptance of the
              purchase order or other contracting action in the making of the sales contract is the
              most important single factor in the occupation of selling. If the purchase order is
              accepted at the seller’s place of business within the municipality or by someone who
              is working out of such place of business and who does not conduct the business of
              selling elsewhere within the meaning of subsections (f) and (g) of this Section, or if
              a purchase order which is an acceptance of the seller’s complete and unconditional
              offer to sell is received by the seller’s place of business within the home rule
              municipality or by someone working out of such place of business, the seller incurs
              Home Rule Municipal Retailers’ Occupation Tax liability in that home rule
              municipality if the sale is at retail and the purchaser receives the physical possession
              of the property in Illinois.” (Emphasis added.) 86 Ill. Adm. Code 270.115(b)(1)
              (2000).
       Section 320.115(b)(1) states:
              “b) Seller’s Acceptance of Order
                   1) Without attempting to anticipate every kind of fact situation that may arise in
              this connection, it is the Department’s opinion, in general, that the seller’s acceptance
              of the purchase order or other contracting action in the making of the sales contract

                                                 -9-
               is the most important single factor in the occupation of selling. If the purchase order
               is accepted at the seller’s place of business within the metropolitan region or by
               someone who is working out of such place of business and who does not conduct the
               business of selling elsewhere within the meaning of subsections (f) and (g) of this
               Section, or if a purchase order which is an acceptance of the seller’s complete and
               unconditional offer to sell is received by the seller’s place of business within the
               metropolitan region or by someone working out of such place of business, the seller
               incurs Regional Transportation Authority Retailers’ Occupation Tax liability in the
               metropolitan region if the sale is at retail and the purchaser receives the physical
               possession of the property in Illinois.” (Emphasis added.) 86 Ill. Adm. Code
               320.115(b)(1) (2000).
¶ 39       Each of the above three sections also provides that under a long-term purchase order
       agreement which must be implemented by the purchaser’s placing specific orders when
       goods are wanted, the seller’s place of business with which subsequent orders are placed
       (rather than the place where the seller signed the master contract) will be determinative of
       the sales situs. See 86 Ill. Adm. Code 220.115(e), 270.115(d), 320.115(d) (2000). Delivery
       of the property within the county, municipality or metropolitan region is not necessary to
       incur the relevant ROT. See 86 Ill. Adm. Code 220.115(d)(1), 270.115(d), 320.115(d)
       (2000).

¶ 40                                       ROT Liability
¶ 41       Initially, defendants challenge the trial court’s interpretation of the above sections.
       Specifically, the court found that ROT liability is determined according to where acceptance
       of the purchase orders took place. The interpretation of a statute presents a question of law
       that this court reviews de novo. Corral, 217 Ill. 2d at 153.
¶ 42       While defendants concede that the seller’s acceptance of the purchase order is “the most
       important single factor” in determining ROT liability, they call our attention to the fact that
       the above sections do not expressly provide that it is the only factor. Therefore, defendants
       assert that ROT liability should be determined only after considering a plethora of selling
       activities, including where fuel prices were set, where price sheets were sent to customers,
       where credit decisions were made, where specific customer decisions were made and where
       the timing of deliveries was determined. Ultimately, defendants argue there was not
       “enough” selling activity in Mark to justify the trial court’s finding that Mark was the
       relevant ROT jurisdictions.
¶ 43       As noted above, the subsection, entitled “Mere Solicitation of Orders Not Doing
       Business,” is found in each of the three relevant sections. See 86 Ill. Adm. Code 220.115(b),
       270.115(a), 320.115(a) (2000). Again, this subsection expressly provides that enough of the
       selling activity must occur within the county, municipality or metropolitan region to justify
       concluding that the seller is engaged in business within the county, municipality or
       metropolitan region with respect to that sale. See 86 Ill. Adm. Code 220.115(b)(1),
       270.115(a)(1), 320.115(a)(1) (2000). We find this language establishes a minimum threshold
       for making sales activity potentially subject to ROT liability. We view this language as


                                                -10-
       similar to the concept used by courts when faced with the personal jurisdictional issue of
       whether the requisite minimum contacts exist to establish jurisdiction over a party.
¶ 44       The “Mere Solicitation of Orders Not Doing Business” subsection makes clear that a sale
       cannot be taxed in any given jurisdiction unless enough of the seller’s selling activity occurs
       within that jurisdiction. This policy is analogous to the personal jurisdictional policy that a
       party cannot be haled into court in a specific jurisdiction absent sufficient contacts. See
       Duncan v. Duncan, 94 Ill. App. 3d 868, 870 (1981) (determining that defendant did not have
       sufficient contacts with Illinois for purposes of personal jurisdiction where parties were
       married in Illinois and briefly lived in Illinois after marriage but then moved to Virginia and
       had no contact thereafter with Illinois). While this subsection expressly protects a person or
       business from being unfairly subjected to ROT liability, it does not set out the applicable test
       (or in the parallel personal jurisdiction context–what constitutes sufficient contacts) for
       determining the situs for ROT liability. That applicable test is found in the following
       subsection, entitled “Seller’s Acceptance of Order.”
¶ 45       The “Seller’s Acceptance of Order” subsection, which can be found in each of the three
       relevant sections, creates a bright-line test: where acceptance occurs, ROT liability is fixed.
       See 86 Ill. Adm. Code 220.115(c)(1), 270.115(b)(1), 320.115(b)(1) (2000). Only two
       conditions are placed upon this mandate: (1) the sale must be at retail, and (2) the purchaser
       must receive physical possession of the property in Illinois. See 86 Ill. Adm. Code
       220.115(c)(1), 270.115(b)(1), 320.115(b)(1) (2000).
¶ 46       Defendants fail to cite any relevant authority supporting their claim that ROT liability
       should be determined only after considering a plethora of selling activities, including where
       fuel prices were set, where price sheets were sent to customers, where credit decisions were
       made, where specific customer decisions were made and where the timing of deliveries was
       determined. Such a position is contrary to the express language of the “Seller’s Acceptance
       of Order” subsection. We therefore do not consider any of these factors when determining
       where ROT liability should be fixed.
¶ 47       The primary objective of statutory interpretation is to ascertain and give effect to the
       intent of our legislature. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320
       (2003). “This inquiry ‘must always begin with the language of the statute, which is the surest
       and most reliable indicator of legislative intent.’ ” (Internal quotation marks omitted.) People
       v. Marshall, 242 Ill. 2d 285, 292 (2011) (quoting People v. Pullen, 192 Ill. 2d 36, 42 (2000)).
       We construe the statute as a whole and afford the language of the statute its plain and
       ordinary meaning. Rogers, 204 Ill. 2d at 320. “Where that language is clear and
       unambiguous, we must apply the statute without further aids of statutory construction.”
       Marshall, 242 Ill. 2d at 292.
¶ 48       We afford the “Seller’s Acceptance of Order” subsection its plain and ordinary meaning:
       If Hartney accepted the daily and long-term purchase orders in Mark, then the applicable
       ROT liability is fixed in Mark. Moreover, we find that acceptance of the daily and long-term
       purchase orders would satisfy the minimum “selling activity” requirement found in the
       “Mere Solicitation of Orders Not Doing Business” subsection.
¶ 49       The dissent generically cites the Fourth District Appellate Court’s decision in Chemed


                                                -11-
       Corp. v. State, 186 Ill. App. 3d 402 (1989), as authority for its proposition that “a totality of
       the circumstances test” applies when determining the situs for ROT liability (infra ¶ 63).
       Initially, we note that we are not bound by decisions of sister districts. Schramer v. Tiger
       Athletic Ass’n, 351 Ill. App. 3d 1016, 1020 (2004).
¶ 50       Unlike Hartney, the seller in Chemed Corp. did not have a business office in Illinois. No
       offers were accepted in Illinois. Instead, all offers were accepted at the seller’s business
       office in Ohio. The seller did, however, have a warehouse in Illinois, which it used as a base
       of operation for its Illinois sales. Specifically, goods would be shipped from the Illinois
       warehouse after acceptance of an order in Illinois.
¶ 51       The seller filed claims for refunds of money it paid in relation to additional municipal
       ROT and authority ROT liability. In reversing the trial court’s decision, the Fourth District
       found the seller liable because the seller was attempting to evade ROT liability altogether and
       the additional taxes were within the scope of the applicable ROT acts (Ill. Rev. Stat. 1987,
       ch. 120, ¶ 441; Ill. Rev. Stat. 1987, ch. 111 2/3, ¶ 704.03(e)). Specifically, the court stated:
                “We believe the regulations the Department has enacted are within the scope of their
           corresponding acts. The regulations recognize the business of retail selling can involve
           a variety of activities, and therefore they do not attempt to provide a complete list. Mere
           solicitation is not enough and the focus must be on the occupation of selling, not where
           the goods are to be consumed or where a title passes. The regulations put great emphasis
           on the place the purchase order is accepted, but overrides that factor as follows:
                    ‘Regardless of the place at which the purchase order is accepted, where tangible
                personal property is located within a municipality at the time of its sale (or is
                subsequently produced in Illinois), then delivered in Illinois to the purchaser, *** the
                place where the property is located at the time of the sale (or subsequent production
                in Illinois) will determine where the seller is engaged in business for [MROT]
                purposes with respect to such sale.’ 86 Ill. Adm. Code § 270.115(b)(3) (1985).
                In adopting the language of section 270.115(b)(3), the Department was asked the
           following question by the joint committee on administrative review:
                ‘How are the out-of-state vendors engaged in the business of selling tangible personal
                property at retail in a particular county or municipality when they are neither located
                nor sell their products in that municipality or county and the only connection to that
                county or municipality is that the product happens to be located, stored, or produced
                in that county or municipality?’
           The Department, as shown by a memorandum in the record, responded:
                ‘[T]his rule will eliminate a competitive advantage enjoyed by out-of-state vendors
                who produce or warehouse their product in a municipality or county in Illinois but
                are immune from the municipal or county retailers’ occupation tax since they are
                neither located nor sell their products in the particular municipalities or counties. The
                Department believes that persons may be “engaged in the business of selling tangible
                personal property” in a municipality or county, even though the order is taken at a
                location outside the state, when the goods are stored or produced in an Illinois county
                or municipality and subsequently delivered within Illinois. This would appear to be

                                                 -12-
                a reasonable interpretation of the statutory language.’ ” (Emphasis in original.)
                Chemed Corp., 186 Ill. App. 3d at 417-18.
¶ 52        While the Fourth District appears to support defendants’ argument in the instant case that
       the absence of “a complete list” in the “Seller’s Acceptance of Order” subsection (Chemed
       Corp., 186 Ill. App. 3d at 417) justifies application of a totality of the circumstances test, we
       note that such an interpretation renders the exception found in section 270.115(b)(3)
       superfluous. If a totality of the circumstances test were the de facto test, there would be no
       justifiable need to create an exception for when a seller’s acceptance is consummated outside
       of Illinois. Instead, one would just analyze the totality of the circumstances. Thus, we believe
       the existence of the exception found in section 270.115(b)(3) actually supports our
       interpretation that acceptance governs ROT liability.
¶ 53        Moreover, we again stress the plain language found in the “Seller’s Acceptance of Order”
       subsection: If the purchase order is accepted at the seller’s place of business within the
       county, municipality and/or metropolitan region; ROT liability is fixed in that respective
       county, municipality and/or metropolitan region. See 86 Ill. Adm. Code 220.115(c)(1),
       270.115(b)(1), 320.115(b)(1) (2000). The dissent and defendants would have us ignore this
       plain language and instead apply a test that is neither articulated or defined by a “complete
       list” or express factors. We refuse to create such legal fiction.

¶ 54                                Did Hartney Accept in Mark?
¶ 55       Defendants next challenge the trial court’s factual findings that Hartney accepted both
       daily purchase orders and long-term purchase orders in Mark. This court will not disturb
       these factual findings unless they are against the manifest weight of the evidence. Samour,
       224 Ill. 2d at 542. In light of this standard, we set out the trial court’s express findings:
                “DAILY PURCHASE TRANSACTIONS
                The Plaintiffs’ evidence proves by a preponderance of the evidence that Hartney fuel
           sales transactions were completed and accepted at its dedicated sales office in Mark,
           Illinois during and beyond the subject audit period. Daily purchase order customers,
           having been provided bid pricing information and having the option of purchasing fuel
           from Hartney or elsewhere, could choose to purchase from Hartney. To do so, daily
           purchase order customers were directed to place their orders for Hartney products with
           its sales representative at its designated sales office in Mark, Illinois. Testimony
           established that any calls to Hartney’s Forest View office would have been redirected to
           Mark. The agreement with Putnam County Painting as managing sales agent, was to
           provide a sales representative to receive, accept and process fuel purchase orders from
           Hartney customers.
                Defendants note that credit decisions were made in Forest View and were not within
           the discretion of personnel in Mark. Though credit approval of new daily customers
           would generally take place at Hartney’s Forest View office, no such activity occurred
           during the subject period. The sales representative was pre-advised as to approved
           customers, so that each order could be accepted by that representative without having to
           check or approve the extension of credit to the customer. The evidence proves by

                                                 -13-
preponderance that each sale was completed upon acceptance of the purchase order by
the sales representative at Hartney’s sales office in Mark and that no further approval,
credit check, or confirmation was required or obtained from Hartney’s Forest View
office. By operation of basic contract law, Hartney’s sales agent’s unconditional
acceptance of each purchase order completed each sale transaction, binding the principal
to sell on the terms and conditions recorded. Upon receiving such purchase orders by call
or fax, and having been previously informed as to whether the customer’s credit was pre-
approved, the sales representative would receive order information as to the type of
products to be purchased, the tank numbers and quantities, day and time specified for
delivery, the name of the person placing the order, and the customer’s purchase order or
reference number if needed for billing purposes.
    As to each completed transaction, the sales representative in Mark contacted ETI as
the designated common carrier, in Forest View, to effect delivery. The evidence
establishes that, although Hartney’s business offices and ETI’s dispatch and operational
offices shared the Forest View facilities, the two entities were separate corporations with
separate corporate identities and separate business functions. As was the practice with
past sales representatives in Elmhurst, Burr Ridge and Peru, the sales representative in
Mark was required to speak to ETI President Gary Hartney, in his capacity as ETI
dispatcher, or to ‘Kevin’ as dispatch manager, *** to effect delivery. Gary Hartney relied
upon the fact that delivery orders were pursuant to completed sale transactions without
having to confirm or discuss the order with Hartney personnel. If the occasion arose that
a customer required immediate delivery, the sales representative would call Gary Hartney
to confirm the availability of the common carrier to deliver on request; neither the sales
representative nor ETI would have to check or confirm sale approval with Hartney
personnel. The evidence establishes that Hartney’s billing, payroll and accounting
personnel in Forest View were not associated with or involved in Hartney’s daily sales.
Following delivery, ETI would advise Hartney’s billing department to then invoice the
customer. Gary Hartney testified that separate individuals were responsible for entering
each entity’s billing record.
    ***
    LONG TERM PURCHASE TRANSACTIONS
    With respect to long term contract customers, it has been shown by a preponderance
of the evidence that such contracts became binding upon execution and return to the
Mark, Illinois sales office, whether signed first or later signed in Mark by Hartney
President Peter Hartney. It is further demonstrated that the process during the relevant
period required that such contracts be returned to and retained in Hartney’s Mark sales
office. Plaintiffs’ evidence further proves by a preponderance of the evidence that
deliveries made pursuant to Hartney’s long term contracts did not require the placing of
‘orders’ but instead relied on the common carrier (such as ETI) to meet their
requirements by keeping their tanks full, or otherwise meeting their fuel requirements,
upon the terms set forth in each long term contract. These contracts were serviced by the
common carrier without intervention, notation or approval of Hartney personnel. The
common carrier, after delivery, would advise Hartney to invoice the customer. As with

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            daily purchase orders, Hartney’s personnel in Forest View had no customer contact other
            than to invoice for fuel delivered and documented by the common carrier, whether ETI
            or any other firm designated by the customer for the delivery of fuel.”
¶ 56        We cannot say that the trial court’s factual findings that Hartney accepted both daily
       purchase orders and long-term purchase orders in Mark were against the manifest weight of
       the evidence. We reject defendants’ contention that “Mark was the point of contract
       ‘acceptance’ in name only.” The record reveals that Hartney entered into an agreement with
       Putnam Painting in 2003 that vested Putnam Painting and its employees with the explicit
       authority to “receive, accept and process” purchase orders on behalf of Hartney. The record
       confirms that all daily purchase orders were accepted in Mark. The record also confirms that
       all long-term purchase orders were accepted in Mark. Consequently, ROT liability is fixed
       in Mark.
¶ 57        In coming to this conclusion, it seems clear to us that Hartney has intentionally structured
       its sales locations and procedures in a deliberate attempt to minimize its tax liability. We find
       no indication in the statutory authority before us or in the Administrative Code of legislative
       intent to prohibit such business decisions. Nor does it appear, after a review of the record
       presented to us, that past decisions by the IDOR have attempted to punish Hartney for its
       previous efforts to minimize its costs of doing business by implementation of the same sales
       practices employed in Mark or to require its ROT payments to benefit any municipal entity
       other than the one(s) in which its sales office is currently located.
¶ 58        We note in this regard that prior IDOR audits might have shed additional light on its
       decisional history, but they were destroyed by the agency after the filing of this lawsuit. Their
       only relevance in this litigation is the fact that the trial court allowed Hartney to argue a
       negative inference from the State’s failure or inability to produce prior audit evidence at trial.
       The audits are not part of our record, we have not been able to review them, the parties
       strongly disagree on their content and import, and our standard of review as to factual issues
       is not de novo. For these reasons, the previous audits have not factored in any way into the
       panel’s decision.
¶ 59        For the foregoing reasons, we affirm the judgment of the trial court.

¶ 60       Affirmed.

¶ 61       JUSTICE CARTER, dissenting.
¶ 62       I respectfully disagree with the majority’s conclusion in the present case. Unlike the
       majority, I would find that the trial court erred in determining that Hartney’s situs was in
       Mark for the purpose of the retailers’ occupation taxes (ROTs) and in entering judgment in
       favor of plaintiffs on that basis. I would, therefore, reverse the trial court’s ruling and remand
       this case for the trial court to enter judgment in favor of defendants.
¶ 63       Neither the statutes nor the regulations involved in this case specifically define the phrase
       “engaged in the business of selling.” The regulations make clear, however, that a totality of
       the circumstances test applies. See 86 Ill. Adm. Code 220.115(b) to (e), 270.115(a) to (d),


                                                 -15-
       320.115(a) to (d) (2000); Chemed Corp. v. State, 186 Ill. App. 3d 402, 415-17 (1989). Thus,
       under the regulations, for a seller to be liable for ROTs to a particular taxing jurisdiction,
       enough of the seller’s selling activity must occur within that jurisdiction to justify concluding
       that the seller is engaged in business within that jurisdiction with respect to that sale. 86 Ill.
       Adm. Code 220.115(b)(1), 270.115(a)(1), 320.115(a)(1) (2000); Chemed Corp., 186 Ill. App.
       3d at 415. Mere solicitation of orders within the taxing jurisdiction in not enough. 86 Ill.
       Adm. Code 220.115(b), 270.115(a), 320.115(a) (2000); Chemed Corp., 186 Ill. App. 3d at
       415-17. The most significant factor in determining a seller’s situs for ROTs is the location
       of the seller’s acceptance of the purchase order, although that factor alone may not be
       dispositive. See 86 Ill. Adm. Code 220.115(c)(1), 270.115(b)(1), 320.115(b)(1) (2000);
       Chemed Corp., 186 Ill. App. 3d at 415-17. In the absence of clear proof to the contrary, it is
       generally assumed that acceptance of the purchaser order takes place at the place of business
       where the seller receives the purchase order. 86 Ill. Adm. Code 220.115(c)(1), 270.115(b)(2),
       320.115(b)(2) (2000).
¶ 64       In addition, in considering the definition of the phrase “engaged in the business of
       selling,” the Illinois Supreme Court stated:
                “An occupation, the business of which is to sell tangible personal property at retail,
           is the composite of many activities extending from the preparation for, and the obtaining
           of, orders for goods to the final consummation of the sale by the passing of title and
           payment of the purchase price. It is obvious that such activities are as varied as the
           methods which men select to carry on retail business and it is therefore not possible to
           prescribe by definition which of the many activities must take place in Illinois to
           constitute it an occupation conducted in this State. Except for a general classification that
           might be made of the many retail occupations, it is necessary to determine each case
           according to the facts which reveal the method by which the business is conducted.” Ex-
           Cell-O Corp. v. McKibbin, 383 Ill. 316, 321-22 (1943).
       Thus, it is clear from the supreme court’s discussion that the term must be evaluated on a
       case by case basis. See Ex-Cell-O Corp., 383 Ill. at 321-22.
¶ 65       In the present case, the evidence showed that virtually all of the sales activity took place
       at Hartney’s main office in Forest View. The Mark “sales” office was created in an attempt
       to avoid paying the additional ROTs. The Mark office merely served as a mailbox and a fax
       line for Hartney, where an order-taker would take the orders from customers and fax those
       orders to the main office in Forest View. As to the daily purchase orders, the order-taker in
       Mark did not negotiate the sales, had no authority to approve financing, and was not even
       aware of the prices of the fuel being sold. Furthermore, as to the blanket orders, the order-
       taker in Mark had almost no connection to those sales whatsoever. Under these
       circumstances, I would conclude that Hartney’s situs for ROTs was the Forest View office.
       See Marshall & Huschart Machinery Co. v. Department of Revenue, 18 Ill. 2d 496, 501-02
       (1960) (ROT liability upheld where seller had merely created a complicated subterfuge to
       avoid the application of the ROT). In my opinion, the trial court erred in reaching the
       opposite conclusion.
¶ 66       For the reasons stated, I respectfully dissent from the majority’s opinion.


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