                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




              In re Application of the County Collector, 2011 IL App (3d) 100181




Appellate Court            In re APPLICATION OF THE COUNTY COLLECTOR FOR
Caption                    JUDGMENT AND ORDER OF SALE AGAINST LAND AND LOTS
                           RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL
                           TAXES FOR THE YEAR 2004 and PETITION OF DENNIS D.
                           BALLINGER FOR A TAX DEED.



District & No.             Third District
                           Docket No. 3–10–0181


Filed                      May 24, 2011


Held                       Where the owner of farmland leased a portion of the land to taxpayer for
(Note: This syllabus       a communications tower and the tax assessor assigned the tower its own
constitutes no part of     separate tax identification number and assessment but did not make a
the opinion of the court   separate assessment of the land, the trial court erred when, after the real
but has been prepared      estate taxes became delinquent and were sold to plaintiff at a tax sale, the
by the Reporter of         trial granted plaintiff”s request for a tax deed for the tower and the leased
Decisions for the          parcel on which the tower was erected, since the owner and lessor of the
convenience of the         land paid all of the taxes on the land, the land was never subject to any
reader.)
                           delinquent taxes and the trial court had no jurisdiction to award plaintiff
                           a tax deed for the land containing the tower, and, furthermore, the trial
                           court had no jurisdiction to direct the issuance of a tax deed for the tower,
                           which was tangible personal property, not real property, and was
                           unlawfully assessed and could not be subject to any delinquent taxes.
Decision Under               Appeal from the Circuit Court of Hancock County, No. 08–TX–6; the
Review                       Hon. David F. Stoverink, Judge, presiding.



Judgment                     Affirmed in part and vacated in part; cause remanded.


Counsel on                   Mark S. Morthland (argued), of Moore, Susler, McNutt & Wrigley, LLC,
Appeal                       of Decatur, for appellant.

                             Rodney G. Clark (argued), of Capps, Ancelet, Clark & Rasmussen, of
                             Carthage, for appellee Pettit Land, L.L.C.

                             Jim Drozdz, State’s Attorney, of Carthage (Brian D. Hunter, Assistant
                             State’s Attorney, of counsel), for appellee Hancock County Treasurer.


Panel                        JUSTICE McDADE delivered the judgment of the court, with opinion.
                             Presiding Justice Carter and Justice O’Brien concurred in the judgment
                             and opinion.




                                             OPINION

¶1      Defendant, Pettit Land, L.L.C., is the owner of a piece of real property, consisting mainly of
        farmland (the farmland), located in the county. The farmland bears the tax parcel
        identification number 09–06–000–062 (PIN 09–06–000–062).
¶2      On February 7, 1985, defendant entered into a lease agreement with Waterway
        Communications System, Inc.1 (Waterway), for a parcel of real property (the leased parcel)
        located on the farmland. The term of the lease was for 25 years with an option for Waterway
        to extend the lease an additional 25 years. The lease was recorded in the county recorder’s
        office. While the record is unclear as to the exact date, Waterway, at some point after
        entering into the lease agreement with defendant, constructed a cellular/radio tower (the
        tower) on the leased parcel.
¶3      On November 5, 1986, a “First Amendment to Lease Agreement” was entered between the
        parties and recorded in the county recorder’s office. The amendment provided that Waterway


        1
            Waterway is a communications company.

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       will pay “ad valorem taxes levied and attributable to any improvements and facilities
       installed on the premises by [Waterway].”
¶4     Sometime prior to December 1, 2002, the county assessor assigned the tower its own separate
       tax identification number, 09–06–000–060 (PIN 09–06–000–060). The property record for
       PIN 09–06–000–060 contains the legal description of the improvements on the leased parcel
       and the tower assessments. The record does not contain any land assessment. Dale Bolton,
       who is the current county assessor and has been since December 1, 2002, testified that he
       does not know why the tower and the farmland were assigned two different tax parcel
       identification numbers. All tax bills for the tower, however, were sent to Waterway. The bills
       subsequently became delinquent and the tower was sold to plaintiff, Dennis Ballinger, at a
       tax sale.
¶5     It is undisputed that defendant paid all taxes assessed and levied on PIN
       09–06–000–062—the farmland, which includes the leased parcel. Those taxes were never
       delinquent. Defendant testified, however, that it never received a tax bill for the tower or had
       any knowledge that the taxes were delinquent and subject to a tax sale.
¶6     At the tax sale, plaintiff purchased “Tax Sale Certificate No. 040076” (the tax certificate)
       The tax certificate states the legal description of the property as: “09–06–000–060:
       IMPROVEMENTS ON TOWER SITE; PART E 1/2 NE PILOT GROVE 6–6.”
¶7     On June 19, 2008, plaintiff filed a petition for tax deed. The petition sought a tax deed for
       not only the tower, but also the leased parcel on which the tower was located. A “Take
       Notice” was personally served on defendant. Defendant subsequently filed a “Motion to
       Deny Issuance of Tax Deed, or in the alternative, Clarification of what Tax Buyer will
       receive.” The motion alleged that plaintiff should only receive, if he obtains a tax deed, the
       tower, and not the leased parcel. The motion also alleged that defendant had paid all the
       property taxes on the farmland, which includes the leased parcel, but admitted that it did not
       pay the taxes on the improvements located on the leased parcel.
¶8     Plaintiff filed a motion to dismiss defendant’s motion for clarification. Plaintiff alleged that
       his tax sale certificate entitled him to both the tower and the leased parcel. Plaintiff argued
       that Illinois law does not allow personal property taxes to be imposed or assessed on personal
       property. Specifically, plaintiff contended that if he is only allowed to obtain the tower, and
       not the leased parcel, then the county assessor is illegally assessing property taxes on
       personal property.
¶9     Upon hearing argument, the circuit court held that plaintiff will receive rights in the tower,
       but not the leased parcel. Plaintiff appealed, but we dismissed the appeal on the grounds that
       the circuit court’s order was not final and appealable.
¶ 10   On remand, the circuit court heard defendant’s motion to extend the redemption period on
       the leased parcel, if need be, and also plaintiff’s application for an order directing the county
       clerk to issue a tax deed as to the leased parcel. Ultimately, the court entered an order (1)
       denying defendant’s motion to extend the redemption period, (2) denying plaintiff’s
       application for a tax deed as to the leased parcel, and (3) directing issuance of a tax deed in
       favor of plaintiff for the tower. Plaintiff now appeals from this order.


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¶ 11                                               ANALYSIS
¶ 12   Plaintiff contends that the circuit court erred in denying his application for a tax deed as to
       the leased parcel. Plaintiff argues that his certificate of purchase entitles him to the entry of
       a tax deed for both the tower and the leased parcel. In response, defendant calls our attention
       to the fact that the farmland includes the leased parcel and it has “always paid all taxes
       assessed on the [farm]land.” Because we hold the circuit court lacked jurisdiction to award
       plaintiff a tax deed for the leased parcel, we find no error in the denial of plaintiff’s
       application for a tax deed.
¶ 13        “Tax deed proceedings are in rem in nature, rather than in personam, and a [circuit] court
       acquires jurisdiction after the county collector makes his application for judgment and order
       of sale.” In re Application of the County Treasurer & ex officio County Collector
       (Hammond), 386 Ill. App. 3d 906, 909 (2008). The county collector’s application for a
       judgment and order of sale is a special statutory proceeding created by the Property Tax Code
       (the Code) (35 ILCS 200/1–1 et seq. (West 2008)). In re Application of County Collector,
       48 Ill. App. 3d 572, 583 (1977). Likewise, the circuit court functions pursuant to special
       statutory jurisdiction granted by the Code. County Collector, 48 Ill. App. 3d at 583. In order
       for the court to invoke this statutory jurisdiction, the taxes on the subject property must be
       delinquent. Novak v. Smith, 197 Ill. App. 3d 390, 395-96 (1990); County Collector, 48 Ill.
       App. 3d at 583-84; Stein v. Olsen, 26 Ill. App. 3d 858, 861 (1975). Thus, where the taxes on
       the property have been paid, the court does not acquire jurisdiction over the property, and a
       judgment and order of sale against that property is void. S.I. Securities v. Powless, 403 Ill.
       App. 3d 426, 443 (2010); Hammond, 386 Ill. App. 3d at 909; In re Application of the Cook
       County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for
       Nonpayment of General Taxes for the Year 1985 & Petition for Tax Deed of Barnard, 228
       Ill. App. 3d 719, 731 (1991); Novak, 197 Ill. App. 3d at 396; County Collector, 48 Ill. App.
       3d at 584. Section 22–75(b) of the Code incorporates this principle and provides as follows:
                    “(b) Any order for the sale of property for delinquent taxes, except as otherwise
                provided in this Section, shall estop all parties from raising any objections to the
                order or to a tax title based thereon, which existed at or before the rendition of the
                order, and which could have been presented as a defense to the application for the
                order. The order itself is conclusive evidence of its regularity and validity in all
                collateral proceedings, except in cases where the tax or special assessments were
                paid prior to the sale or the property was exempt from general taxes or was not
                subject to special assessment.” (Emphasis added.) 35 ILCS 200/22–75(b) (West
                2008).
¶ 14   Here, it is undisputed that defendant paid all taxes assessed and levied on the farmland,
       which includes the leased parcel. Plaintiff’s position here on appeal simply defies logic in
       that it asserts the right to a tax deed for property that has never been subject to any delinquent
       taxes. Because the farmland was not subject to any delinquent taxes, we find the circuit
       court lacked jurisdiction to enter a tax deed awarding plaintiff the leased parcel. See S.I.
       Securities, 403 Ill. App. 3d at 443; Hammond, 386 Ill. App. 3d at 909; In re Application of
       the Cook County Collector, 228 Ill. App. 3d at 731; Novak, 197 Ill. App. 3d at 396; County
       Collector, 48 Ill. App. 3d at 584. Accordingly, we find no error in the circuit court’s denial

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       of plaintiff’s application for a tax deed as to the leased parcel.
¶ 15   In coming to this conclusion, we note that plaintiff, in an apparent attempt to support his
       alleged right to a tax deed for the leased parcel, argues that if he is only allowed to obtain the
       tower, and not the leased parcel, then the county assessor is illegally assessing property taxes
       on personal property. While we agree with plaintiff’s later assertion that the county is
       illegally assessing property taxes on personal property, we find that the circuit court lacked
       jurisdiction to direct issuance of a tax deed in favor of plaintiff for the tower.
¶ 16   Section 24–5 of the Code provides, in pertinent part: “Ad valorem personal property taxes
       shall not be levied on any personal property having tax situs in this State.” 35 ILCS 200/24–5
       (West 2008). “Our courts have defined tangible personal property to mean that which ‘may
       be seen, weighed, measured and estimated by the physical senses and which is capable of
       being possessed.’ “ Archer Daniels Midland Co. v. City of Chicago, 294 Ill. App. 3d 186,
       190 (1997), quoting In re Estate of Berman, 39 Ill. App. 2d 175, 178 (1963).
¶ 17   Here, the county assessor assigned the tower its own separate tax identification number. The
       property record for this number contains the legal description of the improvements on the
       leased parcel and the tower assessments. The record does not contain any land assessment,
       nor does it describe any leasehold interest. Instead, a review of the record confirms that it is
       the tower itself that is the property subject to taxation. Clearly, the tower constitutes tangible
       personal property, rather than real property. Thus, we find the tower was unlawfully assessed.
       See 35 ILCS 200/24–5 (West 2008).
¶ 18   Because the tower was unlawfully assessed, we hold there were never any property taxes
       legally due on the property. Consequently, because there were no legal property taxes due,
       there could never be any delinquent taxes. Thus, because the tower was not subject to any
       delinquent taxes, we find the circuit court lacked jurisdiction to direct the issuance of a tax
       deed in favor of plaintiff for the tower. See S.I. Securities, 403 Ill. App. 3d at 443;
       Hammond, 386 Ill. App. 3d at 909; Cook County Collector, 228 Ill. App. 3d at 731; Novak,
       197 Ill. App. 3d at 396; County Collector, 48 Ill. App. 3d at 584. Accordingly, we vacate that
       portion of the circuit court’s order directing issuance of a tax deed in favor of plaintiff for the
       tower. See Delgado v. Board of Election Commissioners, 224 Ill. 2d 481, 486 (2007) (order)
       (courts of review have an independent duty to vacate void orders and may sua sponte declare
       an order void).
¶ 19   For the foregoing reasons, we affirm that portion of the circuit court’s order denying
       plaintiff’s application for a tax deed as to the leased parcel and vacate that portion of the
       circuit court’s order directing issuance of a tax deed in favor of plaintiff for the tower. The
       matter is remanded for any further proceedings necessitated by this order.
¶ 20   Affirmed in part and vacated in part; cause remanded.




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