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                              Appellate Court                            Date: 2017.05.31
                                                                         10:34:17 -05'00'




                  Parmar v. Madigan, 2017 IL App (2d) 160286



Appellate Court   PAMINDER S. PARMAR, Individually and as Executor of the Estate
Caption           of Surinder K. Parmar, Plaintiff-Appellant, v. LISA MADIGAN, as
                  Attorney General of the State of Illinois, and MICHAEL FRERICHS,
                  as Treasurer of the State of Illinois, Defendants-Appellees.



District & No.    Second District
                  Docket No. 2-16-0286


Filed             April 13, 2017



Decision Under    Appeal from the Circuit Court of Du Page County, No. 15-MR-1412;
Review            the Hon. Bonnie M. Wheaton, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Nicholas P. Hoeft and Eric H. Jostock, of Jostock & Jostock, P.C., of
Appeal            Chicago, for appellant.

                  Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                  Solicitor General, and Carl J. Elitz and Nadine J. Wichern, Assistant
                  Attorneys General, of counsel), for appellees.



Panel             JUSTICE BIRKETT delivered the judgment of the court, with
                  opinion.
                  Justices Zenoff and Schostok concurred in the judgment and opinion.
                                               OPINION

¶1        Plaintiff, Paminder S. Parmar, appeals the dismissal of his lawsuit seeking a declaratory
     judgment concerning an amendment to the Illinois Estate and Generation-Skipping Transfer
     Tax Act (Estate Tax Act) (35 ILCS 405/1 et seq. (West 2014)). We agree with plaintiff that the
     trial court erred in dismissing his lawsuit as barred on grounds of sovereign immunity. We
     disagree with defendants, Attorney General Lisa Madigan and Treasurer Michael Frerichs, that
     the voluntary-payment doctrine provides an alternative ground for affirming the dismissal.
     Consequently, we reverse the dismissal of the complaint and remand for further proceedings.

¶2                                         I. BACKGROUND
¶3        Plaintiff’s decedent, Dr. Surinder K. Parmar, passed away on January 9, 2011. Due to
     interplay between federal and Illinois law on taxation of estates, which we need not detail here,
     Parmar’s estate was not subject to Illinois estate tax at the time of her death. In fact, since
     January 1, 2010, there was effectively no Illinois estate tax. See 35 ILCS 405/2(b) (West
     2010). Public Act 96-1496, which was introduced as Senate Bill 2505 and became effective on
     January 13, 2011, revived the Illinois estate tax by amending section 2(b) of the Estate Tax Act
     (Pub. Act 96-1496 (eff. Jan. 13, 2011) (amending 35 ILCS 405/2(b))). By its terms, the
     amended section 2(b) applied retroactively to the estates of persons dying after December 31,
     2010. 35 ILCS 405/2(b) (West 2014). This included Parmar’s estate.
¶4        In October 2015, plaintiff, as executor of Parmar’s estate, filed his “Complaint for a
     Declaration of the Constitutionality of the Retroactive Application of the New Illinois Estate
     and Generation-Skipping Transfer Tax Act under the Illinois Constitution and the United
     States Constitution.” In addition to Attorney General Madigan and Treasurer Frerichs, plaintiff
     named Constance Beard, Director of the Illinois Department of Revenue, and Governor Bruce
     Rauner. Plaintiff identified Madigan as “responsible for administering and enforcing [the
     Estate Tax Act],” Frerichs as “responsible for receiving and refunding monies collected
     pursuant to [the Estate Tax Act],” Beard as “responsible for maximizing collections of
     revenues for the State of Illinois in a manner that promotes fair and consistent enforcement of
     state laws,” and Rauner as “responsible for enforcing the laws of the State of Illinois which
     includes [sic] the [Estate Tax Act].” Plaintiff later voluntarily dismissed Beard and Rauner
     from the lawsuit.
¶5        Plaintiff’s complaint contained nine counts. Counts I and IX alleged improprieties in the
     passage of Public Act 96-1496. Specifically, count I alleged that Senate Bill 2505 was not read
     by title on three different days in each legislative house, in violation of the Illinois Constitution
     (Ill. Const. 1970, art. IV, § 8). Count IX alleged that one of the promoters of Senate Bill 2505
     misrepresented its substance on the floor of the House of Representatives. Citing no authority,
     plaintiff alleged that the legislator’s misrepresentations invalidated the vote on Senate Bill
     2505.
¶6        Counts II through VII concerned the substance of the amended section 2(b) of the Estate
     Tax Act. Count II alleged that, under the interpretive dictates of the Statute on Statutes (5 ILCS
     70/0.01 et seq. (West 2014)) and case law, the amended section 2(b) must be given prospective
     effect only. Counts III through VII alleged that, if given retroactive application, the amended
     section 2(b) would violate the due process and takings clauses of the Illinois and federal


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       constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §§ 2, 15) and the
       ex post facto clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 16).
¶7         Finally, count VIII alleged that, since the amended section 2(b) could not lawfully be
       applied retroactively, all administrative rules issued by Attorney General Madigan that
       assumed the permissibility of retroactive application were invalid and ineffective.
¶8         Plaintiff alleged that he incurred “penalties and interest” on the tax he purportedly owed on
       Parmar’s estate. Plaintiff paid the tax, penalties, and interest “[u]nder duress in order to avoid
       additional penalties and interest.” As relief, plaintiff sought both a declaratory judgment as to
       the lawful scope of the amended section 2(b) and a refund of amounts paid.
¶9         Defendants filed a joint motion to dismiss pursuant to section 2-619.1 of the Code of Civil
       Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)), which permits a party to combine a
       section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2014)) with a section 2-619 motion
       to dismiss (735 ILCS 5/2-619 (West 2014)). For their section 2-619 motion to dismiss,
       defendants raised two affirmative defenses. See id. (providing for involuntary dismissal based
       upon “certain defects or defenses”). First, they asserted that section 1 of the State Lawsuit
       Immunity Act (Immunity Act) (745 ILCS 5/1 (West 2014)) barred the proceeding in circuit
       court, leaving plaintiff with recourse only in the Court of Claims. Second, they claimed that the
       suit was barred under the voluntary-payment doctrine because, without duress, plaintiff had
       already paid the estate tax as well as statutory interest.
¶ 10       To support the voluntary-payment defense, defendants submitted an affidavit from John
       Flores, an assistant Attorney General with the Revenue Litigation Bureau. Flores averred that,
       in September and October 2012, plaintiff paid the State a total of $559,973 in tax on the Parmar
       estate. Also in October 2012, plaintiff filed an estate tax return, acknowledging liability for
       $397,144 in tax, $99,286 in late filing penalties, $23,829 in late payment penalties, and
       $39,714 in interest (a total of $559,973). Flores noted that plaintiff paid these amounts before
       the Attorney General had opened a file on Parmar’s estate, had asserted any liability, or had
       made any payment demands. According to Flores, plaintiff later applied for and received a
       waiver of penalties. After further adjustments, plaintiff was calculated to owe $388,068 in tax
       and $35,357 in interest. Flores supported his averments with attached documentation,
       including an estate tax return filed by plaintiff. The return reported the gross value of Parmar’s
       estate at $5 million.
¶ 11       In addition to stating these two affirmative defenses, defendants claimed that several
       counts in plaintiff’s complaint failed to state a claim upon which relief could be granted.
¶ 12       In his response, plaintiff claimed that the legislature clearly waived sovereign immunity for
       lawsuits like the present one by enacting section 15(a) of the Estate Tax Act, which authorizes
       a circuit court “to hear and determine all disputes in relation to a tax arising under [the] Act.”
       35 ILCS 405/15(a) (West 2014).
¶ 13       At a hearing on the motion to dismiss, the trial court determined that section 15(a) was “not
       an explicit waiver of sovereign immunity” and that “proper jurisdiction is with the [C]ourt of
       [C]laims.” The court dismissed the suit without prejudice to plaintiff refiling it in the Court of
       Claims.
¶ 14       Plaintiff filed this timely appeal.




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¶ 15                                          II. ANALYSIS
¶ 16                                      A. General Principles
¶ 17       Plaintiff’s complaint was dismissed pursuant to section 2-619 of the Code. A motion to
       dismiss under section 2-619 “admits the legal sufficiency of the plaintiff’s claim but asserts
       certain defects or defenses outside the pleadings which defeat the claim.” Sandholm v.
       Kuecker, 2012 IL 111443, ¶ 55. Statutory immunity is an affirmative defense, properly raised
       in a section 2-619 motion. Wilson v. City of Decatur, 389 Ill. App. 3d 555, 558 (2009). When
       ruling on a section 2-619 motion, the court should construe the pleadings and supporting
       documents in the light most favorable to the plaintiff, the nonmoving party. Id. The court must
       accept as true all well-pleaded facts in the plaintiff’s complaint and all inferences that may
       reasonably be drawn in the plaintiff’s favor. Sandholm, 2012 IL 111443, ¶ 55. The question on
       appeal is “ ‘whether the existence of a genuine issue of material fact should have precluded the
       dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.’ ” Id.
       (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)).
       Our review is de novo. Id.

¶ 18                                       B. Sovereign Immunity
¶ 19       The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity “[e]xcept
       as the General Assembly may provide by law.” Ill. Const. 1970, art. XIII, § 4. In response, the
       General Assembly enacted the Immunity Act, section 1 of which states that, except as provided
       in several statutory provisions—namely, section 1.5 of the Immunity Act (745 ILCS 5/1.5
       (West 2014)) (concerning state employees), the Illinois Public Labor Relations Act (5 ILCS
       315/1 et seq. (West 2014)), the Court of Claims Act (705 ILCS 505/1 et seq. (West 2014)), and
       the State Officials and Employees Ethics Act (5 ILCS 430/1-1 et seq. (West 2014))—“the
       State of Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1 (West
       2014). For its part, the Court of Claims Act states that the Court of Claims has exclusive
       jurisdiction to hear “[a]ll claims against the State founded upon any law of the State of Illinois
       or upon any regulation adopted thereunder by an executive or administrative officer or
       agency.” 705 ILCS 505/8(a) (West 2014).
¶ 20       The trial court agreed with defendants that section 15(a) of the Estate Tax Act is not a
       waiver of sovereign immunity. There is a high bar for such waivers: they must be “clear and
       unequivocal” to be effective. (Internal quotation marks omitted.) In re Special Education of
       Walker, 131 Ill. 2d 300, 303 (1989). As plaintiff points out, however, sovereign immunity
       applies in the first instance only where the State is actually made a party in the case. The
       Immunity Act provides that “the State of Illinois” shall not be “made a defendant or party.”
       745 ILCS 5/1 (West 2014). There is considerable case law on whether sovereign immunity
       applies where a suit names not “the State as such” but rather a state officer or agency. See
       Leetaru v. Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 43 (suit named not
       the State of Illinois per se but the board of trustees of the University of Illinois and one of its
       associate vice chancellors). As one might expect, sovereign immunity is not circumvented by
       simple party designation. “[T]he State’s immunity cannot be evaded by naming an official or
       agent of the State as the nominal party defendant.” Smith v. Jones, 113 Ill. 2d 126, 131 (1986).
       However, under what the supreme court has termed the “officer-suit” exception, a suit against
       a state officer or agency might not be tantamount to a suit against the State. See PHL, Inc. v.
       Pullman Bank & Trust Co., 216 Ill. 2d 250, 261 (2005). At oral argument, we asked the parties

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       if they were prepared to discuss the officer-suit exception. Neither party felt adequately
       prepared to address it. We proposed the possibility of additional briefing on the subject. We
       have since decided against that course. Plaintiff cited the officer-suit exception in his brief.
       Although his remarks were rather cursory, they were sufficient to raise the issue for our
       consideration. Defendants had the opportunity to respond, but did not. We see no need to offer
       the parties a second pass on the issue.
¶ 21       The supreme court’s most recent exposition of the officer-suit exception was in Leetaru:
               “In determining whether sovereign immunity applies to a particular case, substance
               takes precedence over form. [Citation.] That an action is nominally one against the
               servants or agents of the State does not mean that it will not be considered as one
               against the State itself. [Citation.] By the same token, the fact that the named defendant
               is an agency or department of the State does not mean that the bar of sovereign
               immunity automatically applies. In appropriate circumstances, plaintiffs may obtain
               relief in circuit court even where the defendant they have identified in their pleadings is
               a state board, agency or department. [Citations.]
                   Whether an action is in fact one against the State and hence one that must be
               brought in the Court of Claims depends on the issues involved and the relief sought.
               [Citations.] The prohibition against making the State of Illinois a party to a suit cannot
               be evaded by making an action nominally one against the servants or agents of the State
               when the real claim is against the State of Illinois itself and when the State of Illinois is
               the party vitally interested. [Citation.] The doctrine of sovereign immunity affords no
               protection, however, when it is alleged that the State’s agent acted in violation of
               statutory or constitutional law or in excess of his authority, and in those instances an
               action may be brought in circuit court. [Citations.]
                   This exception is premised on the principle that while legal official acts of state
               officers are regarded as acts of the State itself, illegal acts performed by the officers are
               not. In effect, actions of a state officer undertaken without legal authority strip the
               officer of his official status. Accordingly, when a state officer performs illegally or
               purports to act under an unconstitutional act or under authority which he does not
               have, the officer’s conduct is not regarded as the conduct of the State. [Citation.] A suit
               may therefore be maintained against the officer without running afoul of sovereign
               immunity principles. [Citations.]
                   Of course, not every legal wrong committed by an officer of the State will trigger
               this exception. For example, where the challenged conduct amounts to simple breach
               of contract and nothing more, the exception is inapplicable. [Citation.] Similarly, a
               state official’s actions will not be considered ultra vires for purposes of the doctrine
               merely because the official has exercised the authority delegated to him or her
               erroneously. The exception is aimed, instead, at situations where the official is not
               doing the business which the sovereign has empowered him or her to do or is doing it in
               a way which the law forbids. [Citation.]” (Emphases added and internal quotation
               marks omitted.) Leetaru, 2015 IL 117485, ¶¶ 44-47.
¶ 22       Thus, the officer-suit exception applies when the state officer is alleged to “have acted in
       violation of statutory or constitutional law or in excess of [the officer’s] authority.” Id. ¶ 50.
       The exception does not apply where the plaintiff alleges a “simple breach of contract and


                                                     -5-
       nothing more” or alleges that the officer “exercised the authority delegated to him or her
       erroneously.” Id. ¶ 47.
¶ 23       This distinction is illustrated by comparing some cases. In Leetaru, the plaintiff, a graduate
       student at the University of Illinois, sued state agents affiliated with the University. The
       plaintiff alleged that the defendants’ investigation of potential research misconduct by the
       plaintiff violated his due process rights as established by the University’s internal rules and
       regulations. The supreme court held that the officer-suit exception applied:
               “Defendants’ alleged acts and omissions *** involve far more than a mere difference
               of opinion over how the rules and regulations should be interpreted or applied and are
               not simply the result of some inadvertent oversight or a de minimis technical violation.
               Rather, according to [the plaintiff], they constitute a fundamental disregard for core
               provisions governing academic discipline at the University, thereby exceeding
               defendants’ authority and violating [the plaintiff’s] constitutional rights to due
               process.” Id. ¶ 49.
       Thus, the court construed the complaint as alleging that the defendants “acted in violation of
       statutory or constitutional law or in excess of their authority” (id. ¶ 50), and therefore the court
       held that sovereign immunity did not apply.
¶ 24       In CGE Ford Heights, L.L.C. v. Miller, 306 Ill. App. 3d 431 (1999), several private
       companies and a municipality brought two multi-count complaints against the Illinois
       Governor, members of the Illinois Commerce Commission, and the Director of the Illinois
       Department of Revenue. The counts all centered on Public Act 89-448 (eff. Mar. 14, 1998),
       which abolished subsidies for tire burning plants. Some of the counts alleged breach of
       contract. The appellate court held that these counts did not state a cause of action. The
       remaining counts alleged that Public Act 89-448 was unconstitutional on various grounds. The
       appellate court held that some of these counts failed as well, but not on grounds of sovereign
       immunity, as the allegations that the defendants applied an unconstitutional provision brought
       the counts within the officer-suit exception. Miller, 306 Ill. App. 3d at 436, 439-40.
¶ 25       Two cases finding the officer-suit exception not applicable are Healy v. Vaupel, 133 Ill. 2d
       295 (1990), and Smith, 113 Ill. 2d 126. In Healy, the plaintiff sued several employees of
       Northern Illinois University for injuries she suffered while participating as a member of the
       University’s gymnastics team. The plaintiff alleged that her injuries were caused by the
       defendants’ negligent performance of their duties. Since the plaintiff did not allege that the
       defendants “acted outside the scope of their authority or in violation of law,” the officer-suit
       exception did not apply. Healy, 133 Ill. 2d at 310-11.
¶ 26       In Smith, the plaintiffs sued the Illinois State Lottery and its director. They claimed that the
       defendants misrepresented the prize pool for one of the state lotteries. The plaintiffs’ claims,
       however, were strictly breach-of-contract claims. They did not allege that the defendants
       “appl[ied] an unconstitutional statute *** [or] violated a law of Illinois.” Smith, 113 Ill. 2d at
       132. Accordingly, sovereign immunity applied. Id.
¶ 27       Plaintiff’s allegations here fall within the officer-suit exception. Plaintiff alleged that (1)
       the amendment to section 2(b) of the Estate Tax Act was void ab initio because of procedural
       improprieties and (2) at the very least, the amendment could not constitutionally be applied
       retroactively to the estates of persons who, like Parmar, passed away before its effective date.
       Thus, according to plaintiff, in enforcing the amended section 2(b) against Parmar’s estate,


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       defendants a fortiori acted unlawfully. This suit is a textbook instance of the officer-suit
       exception.
¶ 28       Defendants point to the State Officers and Employees Money Disposition Act (Protest
       Fund Act) (30 ILCS 230/1 et seq. (West 2014)). The Protest Fund Act, as the supreme court
       has noted, “allows taxpayers to recover voluntary tax payments if certain procedures are
       followed.” Wexler v. Wirtz Corp., 211 Ill. 2d 18, 25 (2004). The process under the statute
       begins with the taxpayer remitting payment, under protest, to the relevant state entity. Once
       that payment has been placed into a special fund known as the protest fund, the taxpayer has 30
       days to file a complaint and obtain a temporary restraining order or preliminary injunction to
       bar the treasurer from transferring the funds from the protest fund. If the taxpayer wins his
       challenge, the funds are returned to him. If he loses, the funds are given to whatever
       governmental fund they would have gone to if the taxpayer had not made the protest. 30 ILCS
       230/2a (West 2014).
¶ 29       According to defendants, section 15(a) of the Estate Tax Law “makes no affirmative
       waiver of the Immunity Act” but, rather, “merely recognizes that tax disputes under [the Estate
       Tax Law] may be bought pursuant to [the Protest Fund Act].” Defendants contend that the
       Protest Fund Act is the only waiver of sovereign immunity for tax challenges and that, since
       plaintiff has not followed its procedures, his suit is barred. Defendants fail to recognize,
       however, that if a suit is not actually against the State, there is no need for a waiver of
       sovereign immunity. As noted, plaintiff’s allegations bring his action within the officer-suit
       exception and, therefore, sovereign immunity is not implicated. Below (infra ¶ 33), we discuss
       the impact of the Protest Fund Act on the voluntary-payment doctrine, which defendants cite
       here as an alternative ground for affirming the dismissal.
¶ 30       For the foregoing reasons, we hold that the trial court erred in dismissing this action on
       grounds of sovereign immunity.

¶ 31                                  C. Voluntary-Payment Doctrine
¶ 32       Defendants ask us to affirm the dismissal on the alternative ground that the
       voluntary-payment doctrine applies. Defendants raised the defense below but the trial court did
       not address it, finding a sufficient ground for dismissal in the doctrine of sovereign immunity.
¶ 33       “Under the voluntary-payment doctrine, a taxpayer may not recover taxes voluntarily paid,
       even if the taxing body assessed or imposed the taxes illegally.” Geary v. Dominick’s Finer
       Foods, Inc., 129 Ill. 2d 389, 393 (1989). “A taxpayer can only recover taxes voluntarily paid if
       such recovery is authorized by statute.” Id. The Protest Fund Act, discussed previously (supra
       ¶¶ 28-29), is one such means for recovery of taxes voluntarily paid. See 30 ILCS 230/1 et seq.
       (West 2014). For recovery of taxes paid involuntarily, a taxpayer need not use the Protest Fund
       Act or any other statutory mechanism. Geary, 129 Ill. 2d at 395, 408 (the plaintiffs’ challenge
       to a municipal retail tax on female hygiene products did not need to proceed under the Protest
       Fund Act because the plaintiffs’ allegations established that they paid the tax under duress). “A
       taxpayer *** has paid the taxes involuntarily if (1) the taxpayer lacked knowledge of the facts
       upon which to protest the taxes at the time he or she paid the taxes, or (2) the taxpayer paid the
       taxes under duress.” (Emphasis omitted.) Id. at 393. The disjunctive in the foregoing indicates
       that either a lack of knowledge or the existence of duress will establish the payment as
       involuntary. Raintree Homes, Inc. v. Village of Long Grove, 389 Ill. App. 3d 836, 858 (2009).
       A tax was paid under duress where “there was some necessity which amounted to compulsion,

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       and payment was made under the influence of such compulsion.” (Internal quotation marks
       omitted.) Geary, 129 Ill. 2d at 393. “The issue of duress and compulsory payment generally is
       one of fact to be judged in light of all the circumstances surrounding a transaction.” Harris v.
       ChartOne, 362 Ill. App. 3d 878, 883 (2005). “However, where the facts are not in dispute and
       only one valid inference concerning the existence of duress can be drawn from the facts, the
       issue can be decided as a matter of law, including on a motion to dismiss.” Id.
¶ 34        There are no factual disputes pertaining to the existence of duress. Defendants submitted
       an affidavit from Flores describing plaintiff’s payment of tax and interest on Parmar’s estate.
       Plaintiff did not dispute Flores’s averments, but claimed that duress was established by the
       Estate Tax Act’s provision for penalties, interest, and personal liability. Under section 8(a) of
       the Estate Tax Act (35 ILCS 405/8(a) (West 2014)), an unreasonable failure to file a required
       tax return results in a monthly penalty of 5% of the tax to be reported, not to exceed 25%.
       Under section 8(b) (35 ILCS 405/8(b) (West 2014)), an unreasonable failure to pay the tax due
       results in a monthly penalty of 0.5% of the unpaid tax owed, not to exceed 25%. Section 9 (35
       ILCS 405/9 (West 2014)) imposes interest at the rate of 9% per annum for the unpaid tax owed.
       Finally, section 10(c) (35 ILCS 405/10(c) (West 2014)) provides that the individual required to
       file the tax return, here plaintiff as executor of Parmar’s estate, is personally liable for the tax to
       the extent of the transferred property.
¶ 35        We agree with plaintiff that the prospect of penalties, interest, and personal liability
       amounted to duress. Plaintiff’s predicament was analogous to that of the plaintiffs in Ball v.
       Village of Streamwood, 281 Ill. App. 3d 679 (1996), who brought a constitutional challenge to
       the defendant municipality’s real estate transfer tax. The defendant raised the
       voluntary-payment doctrine as a defense, noting that the plaintiffs had already paid the tax on
       their real estate transfer. The trial court certified to the appellate court the question of whether
       the voluntary-payment doctrine applied under the facts. The appellate court held that the
       doctrine did not apply because the defendant’s municipal code “provided civil penalties and
       fines for failure to pay the tax.” Id. at 688.
¶ 36        The court in Ball did not indicate the severity of the potential penalties and fines. Here,
       plaintiff reported the gross value of Parmar’s estate at $5 million. Statutory penalties and
       interest computed on such an amount could be substantial (indeed, plaintiff was found to owe
       interest in the amount of $35,357, though penalties were waived). Plaintiff also faced the
       prospect of personal liability. We hold that plaintiff’s payment of the estate tax was not
       voluntary.
¶ 37        Defendants, however, claim that it is significant that plaintiff paid the tax, penalties, and
       interest “without any communication from the State regarding [Parmar’s] tax liability.”
       Defendants do not elaborate. We see no indication in the Estate Tax Act that such
       “communication” is a prerequisite under the Estate Tax Act for penalties, interest, or personal
       liability.
¶ 38        Defendants further assert that “even if [plaintiff] had received demand letters from the
       State or threats of litigation asserting an incorrect tax liability, those would not have
       constituted legal ‘duress’ sufficient to warrant an exception to the voluntary payment
       doctrine.” For this assertion defendants cite Goldstein Oil Co. v. County of Cook, 156 Ill. App.
       3d 180 (1987). In that case, the plaintiffs, partners in a gasoline supply company, sued to
       recoup gasoline taxes paid to Cook County. The plaintiffs named Cook County itself, as well
       as its auditor and its collector. The plaintiffs alleged that their company was not the party

                                                      -8-
       responsible for the tax. They claimed that they paid the tax because of the auditor’s statements
       to the plaintiffs that, if the tax were not paid, the auditor would refer the matter to the State’s
       Attorney for litigation and seek to shut down the plaintiffs’ storage facility. The trial court
       dismissed the suit, finding that the voluntary-payment doctrine applied. The appellate court
       agreed. The court determined that the plaintiffs’ allegations of duress were insufficient because
       (1) the threat of litigation was evidently made in good faith and (2) the threat to close down the
       storage facility was made 10 months before the plaintiffs paid the tax and the defendants took
       no action in the intervening time. Id. at 183-85.
¶ 39        The facts of Goldstein are not comparable to the facts here. There was no mention in
       Goldstein of any penalties, interest, or other such sanction that the plaintiffs faced for failing to
       pay the gasoline tax. In fact, Goldstein distinguished cases in which parties faced “immediate
       economic threat,” such as severe monetary penalties, for failure to pay a tax or fee. Id. at 184
       (citing Edward P. Allison Co. v. Village of Dolton, 24 Ill. 2d 233, 236 (1962) (the plaintiff
       risked stoppage of its business and “severe penalties” if it failed to pay the defendant village an
       electrical contractor license fee)); see also People ex rel. Carpentier v. Treloar Trucking Co.,
       13 Ill. 2d 596, 599 (1958) (“[W]here money is paid under pressure of severe statutory penalties
       or disastrous effect to business, it is held that the payment is involuntary and that the money
       may be recovered.”).
¶ 40        The pleadings and undisputed facts establish that plaintiff paid the estate tax under duress
       and, hence, involuntarily. Accordingly, plaintiff was not required to seek recovery under the
       Protest Fund Act, and the voluntary-payment doctrine is not an alternative basis for affirming
       the dismissal of plaintiff’s complaint.

¶ 41                                      III. CONCLUSION
¶ 42       For the foregoing reasons, we reverse the dismissal of plaintiff’s complaint and remand for
       further proceedings.

¶ 43       Reversed and remanded.




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