                                         2018 IL App (1st) 171468
                                                                               SECOND DIVISION
                                                                               April 17, 2018


     No. 1-17-1468

                                               IN THE

                                     APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT



     THE PEOPLE OF THE STATE OF ILLINOIS                )       Appeal from the

     ex rel. RICHARD LINDBLOM and RALPH                 )       Circuit Court of

     LINDBLOM,                                          )       Cook County, Illinois.

                                                        )

            Plaintiffs-Appellants,                      )

                                                        )

     v.                                                 )       No. 15 L 50776
                                                        )

     SEARS BRANDS, LLC, an Illinois Corporation,        )

     HOME DEPOT, U.S.A., INC., a Georgia                )

     Corporation, LOWE’S HOME CENTERS,                  )

     LLC, a North Carolina Corporation, BEST            )

     BUY STORES, L.P., a Minnesota Corporation,         )

     and GREGG APPLIANCES, INC., an                     )

     Indiana Corporation,                               )

                                                        )

            Defendants                                  )

                                                        )

     (Best Buy Stores, L.P., a Minnesota                )       Honorable

     Corporation,                                       )       James E. Snyder,

                                                        )       Judge Presiding.
            Defendant-Appellee).                        )


            JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Pucinski and Hyman concurred in the judgment and opinion.

                                               OPINION

¶1          Relators-appellants, Richard Lindblom and Ralph Lindblom, brought this qui tam action

     on behalf of themselves and the State of Illinois under the Illinois False Claims Act (Act) (740

     ILCS 175/1 et seq. (West 2014)) against defendants Sears Brands, LLC (Sears); Home Depot
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     U.S.A., Inc. (Home Depot); Lowe’s Home Centers, LLC (Lowe’s); Best Buy Stores, L.P. (Best

     Buy); and Gregg Appliances, Inc. (Gregg Appliances). This appeal involves only defendant­

     appellee Best Buy. For purposes of this appeal, relators alleged that Best Buy knowingly

     engaged in a scheme to avoid payment of retailers’ occupation tax (sales tax) and use tax by

     treating the sale and installation of dishwashers and over-the-range microwave ovens as a

     construction contract, which is not subject to the collection of sales tax from purchasers. At the

     time relators added Best Buy as a defendant, the Illinois Department of Revenue (Department)

     was in the process of auditing Best Buy’s sales tax calculation practices and had issued a

     proposed tax liability. Best Buy requested review of the proposed tax liability by the

     Department’s Informal Conference Board (Board). Best Buy moved to dismiss relators’ qui tam

     complaint under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)

     (West 2014)), asserting that the “government action bar” set forth in section 4(e)(3) of the Act

     (740 ILCS 175/4(e)(3) (West 2014)) barred relators’ qui tam action because it was the subject of

     an administrative civil money penalty proceeding (the audit combined with the Board’s review)

     and the State was already a party in that proceeding. The trial court agreed with Best Buy’s

     position and dismissed Best Buy from relators’ qui tam action.

¶2          Relators appeal the dismissal, asserting that the audit and the Board’s review were not

     adversarial and, thus, could not be an administrative civil money penalty proceeding. Relators

     also contend that the subject of the audit and the Board’s review were different from the qui tam

     suit that focused on fraud and Best Buy’s knowing misclassification of sales of over-the-range

     microwaves and dishwashers as a construction contract in order to avoid remittance of sales tax

     to the Department. Finding merit in relators’ position, we reverse and remand for further

     proceedings.



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¶3                                           BACKGROUND

¶4                                   A. Retailers’ Occupation Tax Act

¶5          In Illinois, the Retailers’ Occupation Tax Act (35 ILCS 120/1 et seq. (West 2014))

     imposes sales tax on retailers selling tangible personal property to purchasers for use or

     consumption. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 362 (2009) (citing 35 ILCS 120/2

     (West 2006)); 86 Ill. Adm. Code 130.101 (2005). The use tax complements the sales tax and is

     imposed on taxpayers for the use of tangible personal property purchased from a retailer. Irwin

     Industrial Tool Co. v. Department of Revenue, 238 Ill. 2d 332, 340 (2010) (citing 35 ILCS 105/3

     (West 2008)); 86 Ill. Adm. Code 150.101(a) (1991). The sales tax is computed as a percentage of

     “gross receipts” (35 ILCS 120/2-10 (West 2014)), defined as the “total selling price” (id. § 1).

     Citibank, N.A. v. Illinois Department of Revenue, 2017 IL 121634, ¶ 2. A retailer remits the sales

     tax collected from the purchaser to the Department. Id. On the other hand, a construction contract

     involves the incorporation of tangible personal property into real estate, and such contracts are

     not subject to sales tax on the labor furnished and tangible personal property (materials and

     fixtures) incorporated into a structure. 86 Ill. Adm. Code 130.1940(c) (2000); id.

     § 130.2075(a)(2) (2001). Instead, the construction contractor pays a use tax based on the price it

     paid for the affixed property. Id. § 130.1940(c) (2000); id. § 130.2075(a)(2) (2001). Stated

     simply, a purchaser does not pay sales tax on a construction contract.

¶6                                       B. The False Claims Act

¶7          Several sections of the Act are relevant here. Section 3(a)(1)(G) provides that any person

     who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay

     or transmit money or property to the State” is liable to the State for a civil penalty. 740 ILCS

     175/3(a)(1)(G) (West 2014). Section 4(b)(1) authorizes private persons, referred to as plaintiffs­



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     relators, to bring civil actions on behalf of themselves and on behalf of the State of Illinois

     against any person violating section 3(a)(1)(G). Id. § 4(b)(1); State ex rel. Beeler, Schad &

     Diamond, P.C. v. Burlington Coat Factory Warehouse Corp., 369 Ill. App. 3d 507, 510 (2006)

     (citing 740 ILCS 175/4(b)(1) (West 2002)). The action brought by a relator is known as a

     “qui tam” action. Id. (citing 740 ILCS 175/4(c) (West 2002)). But under section 4(e)(3), a relator

     may not “bring an action under subsection (b) [permitting qui tam actions] which is based upon

     allegations or transactions which are the subject of a civil suit or an administrative civil money

     penalty proceeding in which the State is already a party.” 740 ILCS 175/4(e)(3) (West 2014).

     Section 4(e)(3)’s restriction is known as the “government action bar.” See United States ex rel.

     Batty v. Amerigroup Illinois, Inc., 528 F. Supp. 2d 861, 876 & n.12 (N.D. Ill. 2007) (referring to

     31 U.S.C. § 3730(e)(3) (2006), a federal parallel provision to 740 ILCS 175/4(e)(3), as the

     government action bar). The government action bar prohibits qui tam actions that are parasitic in

     that they duplicate the State’s civil suits or administrative proceedings without giving the

     government any useful return, other than the potential for additional monetary recovery. People

     ex rel. Schad, Diamond & Shedden, P.C. v. QVC, Inc., 2015 IL App (1st) 132999, ¶ 23; 740

     ILCS 175/4 (West 2014).

¶8             After a relator files a qui tam action, the State may elect to intervene, take over and

     proceed with the action, or decline to intervene giving the relator the right to conduct the action.

     Burlington Coat Factory Warehouse Corp., 369 Ill. App. 3d at 510 (citing 740 ILCS 175/4(b)(4)

     (West 2002)). A relator is a party to the qui tam action and is awarded a percentage of the

     proceeds or settlement if the action is successful. Id. (citing 740 ILCS 175/4(c)(1), (d) (West

     2002)).




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¶9                                            C. The Lindbloms’ Case

¶ 10           Richard and Ralph Lindblom are brothers, and they own and operate Advanced

       Appliance, Inc., d/b/a Advanced Maytag Home Appliance Center (Advanced Maytag), located in

       Schaumburg, Illinois. Advanced Maytag’s business consists of selling and servicing home

       appliances. Likewise, a portion of Best Buy’s business includes selling home appliances, such as

       dishwashers and over-the-range microwaves.

¶ 11           Beginning in the late 1970s, the relators’ father, who owned Advanced Maytag at the

       time, learned that Advanced Maytag’s competitor, defendant Sears, did not charge sales tax on

       the retail sales of dishwashers and over-the-range microwaves when the purchaser also arranged

       for delivery and installation services from Sears because Sears treated those sales as a

       construction contract, which was not subject to the collection of sales tax from purchasers.

       Relators later learned that the other named defendants, including Best Buy, followed Sears’s

       practice of failing to remit sales tax on the gross receipts from the sale of dishwashers and over­

       the-range microwaves by treating sales of those appliances as construction contracts. Relators

       believed this practice was a knowing and purposeful scheme to avoid remitting the taxes owed

       on the sale of dishwashers and over-the-range microwaves. Relators estimated that Advanced

       Maytag lost approximately 36 sales a year to defendants based on defendants’ lower prices due

       to their failure to collect and remit the requisite sales tax.

¶ 12           In February 2015, relators contacted the Department and provided specific examples of

       defendants’ failure to charge purchasers sales tax on dishwashers and over-the-range microwaves

       when also arranging for delivery and installation of those appliances. The Department

       acknowledged that defendants may have stretched the interpretation of “affixed to real estate,” as

       well as what constitutes a construction contract versus a retail purchase with separate installation.



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¶ 13          Following and allegedly in response to the information provided by relators, in June

       2015, the Department issued a compliance alert to retailers addressing the proper tax treatment of

       appliances and other tangible personal property sold with installation services and whether those

       sales qualified as construction contracts. The compliance alert clarified that if a customer who is

       the end user of tangible personal property makes a retail purchase and enters into a separate

       agreement for installation, then the sale is an over-the-counter transaction subject to sales tax.

       The compliance alert explained that the sale of tangible personal property along with a separate

       agreement to install the property does not convert a retail sale into a construction contract. The

       applicable tax relating to the sale of tangible personal property is based either on the cost of the

       property affixed to real estate as part of a construction contract, or on the selling price of items

       sold over-the-counter.

¶ 14          On August 31, 2015, Best Buy received a notice of audit initiation from the Department

       notifying Best Buy that it was conducting a limited scope review of Best Buy’s appliance sales to

       Illinois customers for the audit period from July 1, 2012, through December 31, 2013. The

       Department’s audit of Best Buy was confidential and not publically disclosed. 35 ILCS 120/11

       (West 2014).

¶ 15          During an audit, the Department examines the procedures a taxpayer has used in tax

       returns to calculate the tax base, any exemptions and deductions claimed, and the overall

       accuracy of the tax return filed. 35 ILCS 5/904(a) (West 2014); Illinois Department of Revenue,

       Illinois Audit Information, http://tax.illinois.gov/Publications/PIOs/PIO-60.pdf (last visited April

       12, 2018). After the auditor has examined the taxpayer’s books and records, the Department

       issues a written notice of proposed liability, notice of proposed deficiency, or notice of proposed




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        (refund) claim denial reflecting the auditor’s proposed audit adjustment. 86 Ill. Adm. Code

        215.115 (2007).

¶ 16           A taxpayer may request review by the Department’s Board of the proposed audit

        adjustments, and the Board’s review is informal in nature. Id. The Board’s informal review

        process affords taxpayers an opportunity to resolve disagreements with the Department’s

        proposed audit adjustments before commencement of the formal protest and administrative

        hearing process. 86 Ill. Adm. Code 215.100 (2007). The Board’s goal is to ensure that the

        Department’s proposed audit adjustments disputed by the taxpayer are correct and to resolve

        disputes with taxpayers concerning their tax liability at the earliest opportunity possible. Id. A

        taxpayer may request an in-person conference with the Board, but the Board conducts no hearing

        of any type and formal rules of evidence do not apply at the informal conference. 86 Ill. Adm.

        Code 215.130 (2007). Documentation or information submitted to the Board by a taxpayer does

        not become part of any formal record and cannot be forwarded to any other agency or judicial

        body for purposes of making a determination on the merits of any case. 86 Ill. Adm. Code

        215.120(c) (2007). Instead, both the taxpayer and the Department must provide all evidence that

        they wish to be considered directly to those entities in the event of a later dispute. Id. The

        Board’s informal conference process is not subject to the requirements of the Illinois

        Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2014)), and the Board’s final action

        is not subject to administrative review. 86 Ill. Adm. Code 215.120 (2007).

¶ 17	          After the Board concludes its review, the Board issues an action decision and the audit is

        finalized. Id.; Illinois Department of Revenue, Informal Conference Board Review,

        http://tax.illinois.gov/Publications/PIOs/PIO-58.pdf (last visited April 12, 2018). If the Board

        upholds the proposed tax liability, the Department issues a notice of tax liability. Following



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       receipt of a notice of tax liability, a taxpayer may dispute the imposition of the tax by

       withholding payment and participating in an administrative hearing. 35 ILCS 120/4, 12 (West

       2014);        Illinois    Department     of     Revenue,       Illinois     Audit        Information,

       http://tax.illinois.gov/Publications/PIOs/PIO-60.pdf   (last   visited    April    12,   2018).   An

       administrative hearing is a formal legal proceeding, and it is presided over by an administrative

       law judge. Slater v. Department of Children & Family Services, 2011 IL App (1st) 102914, ¶ 28;

       Illinois         Department       of       Revenue,        Illinois        Audit         Information,

       http://tax.illinois.gov/Publications/PIOs/PIO-60.pdf (last visited April 12, 2018). Alternatively,

       the taxpayer may pay the tax under protest and seek judicial determination of the tax dispute

       under the State Officers and Employees Money Disposition Act (Protest Monies Act) (30 ILCS

       230/1 et seq. (West 2014)) in lieu of exhausting its administrative remedies under the tax code.

       National City Corp. & Subsidiaries v. Department of Revenue, 366 Ill. App. 3d 37, 44 (2006).

¶ 18              On November 12, 2015, relators filed this whistleblower qui tam action under the Act

       alleging that big-box appliance retailers, Sears, Home Depot, Lowe’s, and Gregg Appliances,

       violated section 3(a)(1)(G) by knowingly and improperly avoiding or decreasing their obligation

       to collect and remit sales tax on dishwashers and over-the-range microwaves sold in conjunction

       with installation of the appliance. Best Buy was not originally named as a defendant. After

       receiving relators’ complaint and pertinent information, the Attorney General, on behalf of the

       State, elected not to intervene in the action, and relators brought this action on their own behalf

       and on behalf of the State. At the time the complaint was filed, the Department had not

       completed its audit of Best Buy, nor had the fact of the ongoing audit been publically disclosed.

¶ 19              About two months later on January 25, 2016, the Department sent Best Buy a notice of

       proposed liability asserting that Best Buy owed sales tax on certain sales of appliances that were



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       sold with installation and delivery and assessed $173,610 in tax, $26,040 in penalties, and

       $11,026 in interest. Best Buy requested full abatement of the assessed penalty, which the

       Department granted. On March 23, 2016, Best Buy requested review of the proposed liability by

       the Board. Best Buy asserted that it acted properly as a construction contractor not subject to

       sales tax on receipts from labor furnished and tangible personal property installed into a structure

       as an integral part of real property. Best Buy claimed that instead of sales tax, it incurred and

       remitted use tax on the cost of the tangible personal property that was permanently affixed to real

       property as the end user of the property. The Board granted Best Buy’s request for an in-person

       conference, which was held on October 11, 2016.

¶ 20          While the Board’s review was pending, relators amended their qui tam complaint to

       include Best Buy as a defendant. Approximately a month later on September 28, 2016, relators

       filed a second amended complaint, which is the subject of this appeal. In that complaint, relators

       alleged that defendants, including Best Buy, engaged in a scheme to conceal and avoid their

       obligations to pay sales tax to the State. The alleged scheme involved defendants characterizing

       nonpermanently affixed installed appliances (dishwashers and over-the-range microwaves) as

       permanent improvements to real property to avoid collecting sales tax from their customers.

       Relators asserted that defendants knowingly and incorrectly designated the sales of these

       appliances when they arranged for delivery and installation as construction contracts (instead of

       retail sales) and knowingly failed to collect and remit sales tax on the gross receipts from the

       sales of those appliances.

¶ 21          Defendants filed a joint motion to dismiss the second amended complaint, asserting that

       relators failed to plead fraud with the requisite specificity demonstrating that defendants

       knowingly submitted false claims and failed to remit the required tax due.



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¶ 22           Best Buy also moved separately to dismiss the second amended complaint on the

       independent ground that the government action bar of section 4(e)(3) barred relators’ claims

       because the claims were the subject of an administrative civil money penalty proceeding in

       which the State was already a party. Best Buy took the position that the government action bar

       applied because by the time relators named Best Buy as a defendant, the Department had

       completed its field audit and issued a notice of proposed liability and Best Buy had initiated the

       Board’s review, which collectively constituted an administrative civil money penalty proceeding

       that addressed the exact tax issues raised by relators in the qui tam action. Best Buy

       characterized the qui tam action as nothing more than a parasitic lawsuit that provided no benefit

       to the State.

¶ 23           On January 23, 2017, after Best Buy filed its motions to dismiss and before the trial court

       ruled on those motions, the Board denied Best Buy’s request to withdraw the tax and interest

       liabilities assessed in the notice of proposed liability. Best Buy received the Department’s

       “Notice of Tax Liability” dated April 4, 2017, which assessed $173,610 in tax and $18,537.58 in

       interest for the audit period. Best Buy objected to the assessed liability by filing an action under

       the Protest Monies Act (30 ILCS 230/2a (West 2014)).

¶ 24           After a hearing on defendants’ motions to dismiss held on the same day Best Buy

       received the Department’s notice of tax liability, the trial court granted defendants’ joint section

       2-615 motion to dismiss without prejudice, finding that the complaint failed to plead fraud with

       specificity. The trial court reserved ruling on Best Buy’s separate motion to dismiss and directed

       the parties to submit additional briefs on the issue of whether the Department’s audit procedures

       constituted an administrative civil money penalty proceeding that barred relators’ qui tam claim.

       After reviewing the supplemental briefs, the trial court found that the government action bar



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       applied because the Department’s audit and notice of proposed liability, combined with Best

       Buy’s invocation of the Board’s informal assessment review, constituted an administrative civil

       money penalty proceeding. The trial court also found that the qui tam action and the prior

       administrative proceedings both involved the same core factual allegations: that Best Buy was

       not a construction contractor and was subject to sales tax on the sale of dishwashers and over­

       the-range microwaves. The trial court granted Best Buy’s motion to dismiss with prejudice,

       dismissed Best Buy from the matter, and entered an Illinois Supreme Court Rule 304(a) (eff.

       Mar. 8, 2016) finding. 1 Relators’ timely appeal follows.

¶ 25                                                ANALYSIS

¶ 26          The dispositive issue on appeal is whether the Department’s audit in conjunction with the

       Board’s informal review was an administrative civil money penalty proceeding barring relators’

       qui tam action pursuant to the government action bar.

¶ 27          Because we must determine what qualifies as an administrative civil money penalty

       proceeding as that term is used in the Act, the issue before us is a matter of statutory

       construction. It is well settled that the cardinal rule of statutory construction is to ascertain and

       give effect to the intent of the legislature. In re Marriage of Turk, 2014 IL 116730, ¶ 15. The

       statute’s language is the best indication of the legislature’s intent and must be given its plain,

       ordinary, and popularly understood meaning. Id.; In re Detention of Lieberman, 201 Ill. 2d 300,

       308 (2002). It is appropriate to consult a dictionary to determine a statutory term’s plain and

       ordinary meaning. People v. Perry, 224 Ill. 2d 312, 330 (2007). When the statute’s language is

       clear and unambiguous, we must apply it as written without resort to extrinsic aids or tools of

       interpretation. Turk, 2014 IL 116730, ¶ 15. A court should not consider the statute’s words and

              1
                Relators filed a third amended complaint against the other named defendants, which is not the
       subject of this appeal, and had not yet been ruled upon when the trial court dismissed Best Buy from the
       qui tam action.
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       phrases in isolation but instead should interpret each word and phrase in light of the statute as a

       whole. Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 26. Statutory interpretation is a

       question of law that we review de novo. Citibank, N.A., 2017 IL 121634, ¶ 39.

¶ 28          The parties correctly note that the Act does not define the term “administrative civil

       money penalty proceeding.” Both parties turned to Black’s Law Dictionary’s definition of the

       term “administrative proceeding”: “[a] hearing, inquiry, investigation, or trial before an

       administrative agency, [usually] adjudicatory in nature but sometimes quasi-legislative.” Black’s

       Law Dictionary 54 (10th ed. 2014). Best Buy relies on the first half of the definition arguing that

       the Department’s audit was investigatory and the Board’s review was an adversarial proceeding.

       Relators rely on the second half of the definition arguing that an administrative proceeding,

       regardless of the form it takes, must be either adjudicatory in nature or quasi-legislative. Relators

       contend that the Department’s audit along with the Board’s informal review was neither. We

       agree with relators.

¶ 29          When relators added Best Buy as a defendant to the qui tam action, the Board was in

       process of reviewing the proposed liability, but the Department’s audit had not yet been

       completed because no notice of tax liability had been issued to Best Buy. Until the Department

       completed its audit by issuing the statutory notice of final liability to Best Buy, there was no final

       assessment of tax due and, consequently, no determination subject to adjudication.

¶ 30          Although the Retailers’ Occupation Tax Act establishes an administrative process that

       begins with the initiation of an audit and provides for an informal review of the proposed audit

       assessments, that process is not an administrative proceeding and does not implicate formal

       protest procedures. Importantly, the Board’s informal review addressed the Department’s notice

       of proposed, but not final, liability against Best Buy. The nature of the Board’s review was only



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        to reconsider the proposed assessment against Best Buy, and the Department did not present

        evidence supporting its proposed assessed liability. Moreover, the rules of evidence did not apply

        to Best Buy’s in-person conference with the Board (86 Ill. Adm. Code 215.130(f) (2007)),

        lending support to the position that the Board’s review was not adversarial. A taxpayer’s formal

        appeal rights are not triggered until the Department issues a statutory notice, which had not yet

        issued here at the time relators joined Best Buy as a defendant. Once the Department issues a

        statutory notice, then a taxpayer may invoke administrative proceedings before an administrative

        law judge or, alternatively, pay under protest and file an action in the circuit court. Shell Oil Co.

        v. Department of Revenue, 95 Ill. 2d 541, 545-46 (1983).

¶ 31	          We must be mindful that the relevant statutory language refers to both a “civil suit” and

        “administrative civil money penalty proceeding” as matters sufficient to impose the government

        action bar. Reading “civil suit” and “administrative civil money penalty proceeding” together,

        along with the requirement that the State was already a party to either of those actions, we can

        easily ascertain that the legislature intended to bar qui tam actions that were already subject to an

        adversarial proceeding in which the State was a party. Although the Department initiated the

        audit of Best Buy and grants the Board power to review and consider a taxpayer’s grievances

        concerning proposed audit assessments, neither aspect of the investigation of Best Buy’s

        potential tax liability amounted to an adversarial proceeding. Rather, these phases are precursors

        to a future adversary proceeding should the taxpayer not be satisfied with the outcome of the

        Board’s review. It is the taxpayer’s conduct in pursuing relief from the notice of tax liability (no

        longer a proposed liability) by requesting an administrative hearing or initiating a civil suit under

        the Protest Monies Act that triggers the Department’s status as a party in an adversarial

        proceeding. A “party” is commonly understood to mean “[o]ne by or against whom a lawsuit is



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       brought” (Black’s Law Dictionary 1297 (10th ed. 2014)), and the Department and Best Buy only

       became parties and opponents in an adversarial proceeding when Best Buy filed its action under

       the Protest Monies Act, 10 months after it had been joined as a defendant in this case. In other

       words, at the time relators named Best Buy as a defendant, the Department had not yet issued a

       final tax liability subject to formal adversarial proceedings, and Best Buy had not yet taken any

       action to trigger the Department’s status as a party in an adversarial proceeding.

¶ 32          Best Buy contends that, even if the Board’s review was not an administrative civil money

       penalty proceeding, its protest monies action was one step in a continuous process (beginning

       with the Department’s audit) that collectively qualifies as an administrative civil money penalty

       proceeding. Section 4(e)(3)’s language provides no support for Best Buy’s position. Importantly,

       section 4(e)(3)’s language uses the present tense when it refers to “allegations or transactions

       which are the subject of a civil suit or an administrative civil money penalty proceeding in which

       the State is already a party.” (Emphases added.) Nothing in the statute’s express language

       demonstrates that the legislature intended to bar a qui tam action based on the possibility that the

       State may be a party in a civil suit or administrative civil money penalty proceeding in the future.

       Likewise, the statute limits the government action bar to civil suits and administrative civil

       money penalty proceedings and does not include investigations or other steps leading to the

       eventual filing of either proceeding. Best Buy is attempting to expand the government action

       bar’s applicability beyond what is provided for in the statute, which, under the well-established

       cannons of statutory interpretation, is not permissible. See Schultz v. Illinois Farmers Insurance

       Co., 237 Ill. 2d 391, 408 (2010) (It is improper to add provisions not found in a statute or to

       depart from a statute’s plain language by reading into the law exceptions, limitations, or

       conditions that the legislature did not express in the statute.). Although the Department’s audit of



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       Best Buy and the Board’s review were steps in an administrative process and were investigatory

       in nature, they do not constitute steps in an administrative proceeding for purposes of the

       government action bar. Rather, steps in an administrative proceeding would include the filing of

       a complaint in the circuit court under the Protest Monies Act or requesting an administrative

       hearing, and neither occurred here before Best Buy was named as a defendant in relators’

       complaint.

¶ 33          Because the Department’s audit and the Board’s informal internal review of the proposed

       audit adjustments were not an administrative civil money penalty proceeding that the State was

       already a party to, the government action bar is not applicable to relators’ qui tam action. For this

       reason, the trial court erred in granting Best Buy’s section 2-619(a)(9) motion to dismiss.

¶ 34          Best Buy also contends that relators’ qui tam action addressed the same subject as the

       Board’s informal review and was “parasitic” because it relied on and used information derived

       from the Department’s audit and the Board’s review. But because the Department’s audit and the

       Board’s review of the proposed audit adjustment were not an administrative civil money penalty

       proceeding, Best Buy’s contention is beside the point. Likewise, because this appeal involves a

       motion to dismiss on jurisdictional grounds addressing whether the government action bar

       precludes the qui tam action, we need not address Best Buy’s contentions as to the merits of the

       allegations in the qui tam action that it erroneously treated retail appliance sales as construction

       contracts.

¶ 35                                             CONCLUSION

¶ 36          For these reasons, we reverse the trial court’s dismissal of relators’ qui tam complaint and

       remand for further proceedings consistent with this opinion.

¶ 37          Reversed and remanded.



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