## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People e x rel. Madigan v. Kole , 2012 IL App (2d) 110245

Appellate Court Caption THE PEOPLE ex rel. L I SA MADI GAN, Attorney Gene ral o f the State of I llinois
, Plaintiff-Appellant, v. J UL I US KOLE, Personally as Personal Represe ntative and Trustee of the Estate of Anthony F. Cr e s p o , D e cea sed, Def endant- Appellee

.

District & N o. Second District Docke t No. 2-11-0245

Filed April 11, 2012

Held ( Note : Thi s syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n proce eding s on a complaint under theI llinois Estate and G ener ationSkipping Transf

er Tax Ac t seeking over $300,000 in additional estate taxes, interest and late-f

iling penalties arising from an adjustment of dece ased’ s estate tax liability
, the trial court err ed in entering summary judgme nt for defe ndant, the executor of the estate, since the Act imposes
persona l liability on defe ndant for unpaid additional estate taxes, the

certi fi cate of discharg e plaintiff issued to defe ndant did not discharg e defe ndant from persona l liability for the additional estate taxes found to be due, and defe ndant was persona lly liable for fa iling to file a supplemental return and pay the additional taxes; there fore
, the judgme nt for defe ndant was reve rsed and summa ry j u d gment was enter ed for plaintiff.

Dec ision Under Review Appea l from the Circuit Court of L ake County , No. 09-L -892; the Hon. J org e L . Ortiz, J udg e, pre siding.J udg ment Reverse d.

Counsel on Appea l L i s a Madig an, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicito r Ge n era l, and Christopher M.R. Turner
, Assistant Attorney Gene ral, of c ounsel), for

appellant.

Daniel F. Konicek and Michae l J

. Corsi, both of Konicek & Dillon, P.C., of Gene va, and J ohn W. Quinn, of Churchill, Quinn, Richtman & Hamilton, L td., of Gra y slake, for appellee

.

Panel PRES IDING J US TI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustices Z enoff

and Hudson c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Plaintiff, L isa Madig an, the Attorney Gene ral of the State of I llinois
, on behalf o f t h e Peo p l e of the State of I llinois
, filed a complaint under the I llinois Estate and Gene rationSkipping Transf

er Tax Act (Ac t) (35 IL CS 405/1 to 18 (West 2002)) ag ainst defe n d an t, J ulius Kole, persona lly

. Plaintiff soug ht over $300,000 in additional estate tax, interest, and late-f iling penalties related to the I nterna l Revenue S er v i ce ’s (I RS’s) adjustment of the Anthony F. Crespo estate’ s estate tax liability

. Plaintiff alleg ed that defe ndant, as the estate’ s executor, was persona l l y l iable for the additional estate tax and associate d interest and penalties due as a re s ult of the adjustment. The parties filed cross-motions for summary judgme nt (735 I L CS 5/2-1005 (West 2002)), and the trial court g rante d defe ndant’s motion and denied plaintiff’s motion. Plaintiff appea ls, arg uing that summary judgme nt should have been g rante d in her favor (and denied for defe ndant) beca use: (1) the Act imposes persona l liability on defe ndant for unpaid additional estate tax; (2) a certificate of d i s ch arg e that plaintiff issued t o d ef

en d ant did not discharg e defe ndant from persona l liability for any additional estate tax ; and (3) additional es tate tax is due and, as t he person require d to file

a s u p p l em ental return, defendant is persona lly liable for failing to file such return and pay the additional estate tax. W e re verse

.

¶ 2 I . BA CKGROUND ¶ 3 Anthony F. Crespo died on J uly 31, 2002. Prior to his death, he had named defe ndant as the executor of his e state (estate ) and as succe ssor trustee of the Anthony F. Crespo L iving Trust Dated April 19, 1993. On April 30, 2003, defendant, acting as ex ecutor of t he estate

-2-and trustee of the trust, timely made a $127,000 I llinois estate tax payment and reque sted an

extension to file the estate’ s I llinois estate tax return. The extension reque st was g rante d, and,

on October 31, 2003, defe ndant t i m el y fi l ed an I llinois estate tax return that repor ted an $81,397 I llinois estate tax l i ability (labe led on the form as the total state death tax cre dit). Pursuant to the Act, he attache d to the return a copy of the estate’ s fede ral estate tax return. 35 I L CS 405/ 6(f) (West 2002). ¶ 4 Plaintiff rec eived the estate’ s I llinois estat e t ax re t u rn on November 3, 2003. Plaintiff revie wed the attache d fede ral return to determine the amount of estate tax due (re flec ted on the fede ral return as the state death tax cr ed i t ). On November 5, 2003, plaintiff issued a “Certific ate of Dischar g e and Determination of Tax ” (Certificate of Di s ch ar g e), refle cting that $81,397 was owed in e state taxes. The Certifica te of Dischar g e stated, in part: “On the basis of the information submitt ed, the [pl aintiff] has determined that the I llinois estate tax liability
, including any interes t and penalties of the estate[,] has been paid.” I t further
pro v i d ed : “T h is cer

tificate is issued and may be ex hibited as evidence of (1) the complete rele ase of all the property of this estate from the lien imposed by the I llinois Estate Tax L aw and (2) the discharg e from persona l liability of the executor of this estate for the estate tax, p en al ties and interest imposed by the I llinois Estate Tax L aw.” The estate applied for an d

rec eived a

$45,603 ref

und. ¶ 5 The I RS subsequently audited the estate’ s fede ral estate tax return. On Aug ust 11, 2006, the I RS issued a “Report of Estate Tax Ex amination Chang es” (I RS R ep o rt or Report), stating that the estate’ s state death tax cre dit incre ased from $81,398 to $243,729 (base d on 1 the I RS’s revised ca lculation of the fe deral tax able e state fr om $2,121,623 to $4,405,106). ¶ 6 O n Sep te mb e r 1 6
, 2 0 09, plaintiff filed a complaint, seeking from defe ndant the additional
estate tax and related interest and late-f iling penalties. Plaintiff alleg ed that no supplemental I llinois estate tax return was ever filed on the estate’ s behalf and that no pay ment was ever made toward the estate’ s additional I ll i n o i s es tate tax liability

. Ba sed on the 2006 I RS adjustment, plaintiff determined that the estate owed $162,332 in additional I llinois estate tax, a $40, 5 8 3 l at e- filing penalty
, a $27,596 late-pay ment penalty (throug h September 8, 2009), and $103,171 in intere s t ( thr o u g h the same date)
, with additional interest and penalties

acc ruing

. Plaintiff further alleg ed that defe ndant was persona lly liable for the additional tax, interest, and p enalties and noted that reque sts for pay ment wer e issued on May 21, 2007, Aug ust 17, 2007, and April 21, 2009. ¶ 7 De fe n dant moved to dismiss plaintiff’s complaint, arg uing that
, t h ro u gh t h e 2 0 0 3 Certificate of Dischar g e, plaint i ff had rele ased him from persona l liability for any unpaid additional estate tax, penalties, or interest. 735 IL CS 5/2-619(a )(6) (West 2002) (the claim “has been rele ased, satisfied of rec ord, or discharg ed in bankruptc y ”). I n response , plaintiff
arg ued that the additional tax is a separ ate assessment; that the Certifica te of Dischar g e stated that it was i s s ued on the basis of the information submitt ed; that plaintiff routinely issues supplemental Certificates of Dischar g e; and that plaintiff does not independe ntly enfor ce the

T he I RS Report m is ta kenly re cor ded th e e st at e’ s or igina l c re dit as $81 ,398 in st ead of the 1

act ual $81 ,397 amount.

-3-fede ral tax law addre ssing the rec alculation of estate tax liability

. Plain t i ff at t ac hed to her

response the af

fidavit of John Flores, a supe rvising a ssistant Attorney Gene ral, who stated that plaintiff routinely issues a Certificate of Dischar g e afte r the liability assessed as a result of an orig inally filed estate tax return is satisfied and that plaintiff also issues a supplemental Certificate of Dischar g e afte r liability assessed as a result of a supplemental estate tax return is satisfied. Flore s als o s t at ed that the estate never paid the additional I llinois estate tax liability that arose as a result of the I RS’s adjustm en t an d t h at plaintiff never issued a supplemental Certi fi ca te of Dischar g e to the estate afte r the fede ral audit. On Marc h 17, 2010, the trial court denied defe ndant’s motion to dismiss

. Def endant subsequently filed his 2

answe r to plaintiff’s complaint, admitting that the I RS issued its Report bu t d eny ing any knowledg e of an incre ase in the estate’ s cre dit an d d em anding proof that the estate owed additional tax and that no supplemental return w as filed or pay ment made. ¶ 8 On J uly 21, 2010, plaintiff filed her first of two motions for summary judgme nt, arg uing that, pursuant to section 10 of the Act, defe ndant was persona lly liable for the estate’ s unpaid additional estate tax. Specifica lly
, plaintiff arg ued that defe ndant, a s e xe c u to r , w a s p e r s onally liable for the unpaid tax liability ; a certain amount was due; and the estate failed to pay the additional tax owed. Plaintiff attache d to her motion Flore s’ aff idavit; the estate’ s I llinois
estate tax return (with t he attache d fede ral estate tax return) ; and a sample supplemental Certificate of Discha

rg e. ¶ 9 I n response , defe ndant admit ted t hat t he estate neve r paid any additional tax to I llinois

or filed a supplemental return, but he objected on hear say g rounds to the contents of the I RS Report. Also, he arg ued that the 2003 Certificate of Dischar g e unambig uously rele ased him from pers o nal liability for all estate taxes, including any additional estate tax. Finally
, he
arg ued that there was no materia l fac tual question on the issue of the am o u n t o f any additional tax beca

use t h e d o cu m ent that plaintiff offe red to establish this tax, the I RS Report, constituted hea

rsay

. ¶ 10 I n his first o f t wo s u mmary judgme nt motions, defe ndant arg ued that the Act does not impose persona l liability for one’s failure to pay any additional estate tax and, alternatively
, that, if the term “I llinois transfe r tax” includes “additional tax,” then the 2003 Certifica te of Dischar g e discha

rg ed him from all per sonal liability

. ¶ 11 I n her reply in support of her summary judgme nt motion, plaintiff arg ued that defe ndant had admitted to the amount of additional t ax o u t standing and due beca use, in answe rs to interrog at o ri es , h e admitted that the I RS issued its Report and he did not deny that the document, attac hed to the complaint, wa s a copy of the Report. ¶ 12 Plaintiff also asserted that defe ndant admitted to the estate’ s fede ral tax liability incre ase

on Form 890, “Waiver of Restrict i o n s o n Assessment and Collection of Def iciency and Acc eptanc e of Over assessment–Estate, Gift
, and Gene ration-Skipping Transf er Tax” (Waiver)

. Dea n Solovy
, the es t at e’ s attorney , appar ently signe d the form, a copy of which plaintiff attac hed to the motion, on September 7, 2006. The form stated:
“I consent to the immediate assessment and collection of any defic iencies (incre ase

I n t he r eco rd on a ppe al , th er e i s no re por t o f p roc eed ings f rom thi s he ar ing. 2

-4-in t ax and penalties) and acc ept any overa ssessment (dec rea se in tax and penalties) shown below, pl u s an y i n t erest provided by law. I understand that by my signing this waiver
, a petition to the United States Tax Court m ay n ot be made, unless additional defic iencies a

re de termined.” The form refle cted a

$975,627 incre ase in fe dera l tax

. ¶ 13 On November 4
, 2 0 1 0
, t h e t ri al co u rt denied the parties’ first summary judgme nt motions, finding that summary judgme nt was prec luded by fac tual issues, including as to the
amounts shown on the uncertified copy of the I RS R eport (noting foundational issues with its admissi on). ¶ 14 On Dec ember 6, 2010, plaintiff filed her second summary j u d gm en t m o t i o n , which included certified copies of the I RS Report and the Waiver. I n his second summary judgme nt motion, defenda nt rea lleg ed the a rg uments he had r aised in his first such motion. ¶ 15 The trial court, o n Fe b ru ar y 1
, 2011, g rante d defe ndant’s second summary judgme nt motion and denied plainti ff ’s s econd summary judgme nt motion. The court found that sections 6(c) and 10(c) of the Act wer e not ambig uous and did not impose persona l liability

on an executor for any additional estate tax owed by an estate. The court stated that, had the Gene ral Assembly intended for such liability to attach, it would have clea rly provided for it in a tax statute. Further, the court noted that it did not need to rea ch the questions in
p la in ti f f ’ s mo ti on conce rning whether plaintiff established the amount of additional tax owed and whether the 2 0 0 3 C ertificate of Dischar g e absolved defe ndant of persona l liability

. Plaintiff appea ls.

¶ 16 I I . ANAL YSI S ¶ 17 A. Standard of Review ¶ 18 I n this appeal, plaintiff reque sts that we revie w the trial court’s ruling s on the p ar t ies’
summary judgme nt motions and consider statutory construction issues. Summary judgme nt should be gra nted whenever the pl eading s, depositions, admissions, and affidavits o n fi l e, viewed in the light most favor able to the nonmoving party , show that there are no disputed materia l fac ts b et we en t h e parties and that the moving party is entitled to judgme nt as a matter of law. People ex rel. Departme nt of Public Health v. W iley
, 218 I ll. 2d 207, 220 (2006). We revie w de novo the trial court’s entry of summary judgme nt. Id. The construction of a statute is a question of law, which we revie w de novo

. Ries v. City of Chicago
, 242 I ll. 2d 205, 216 (2011).

¶ 19 B. Pick-U p Estate Ta x Scheme ¶ 20 Be fore turning to the arg uments raised in this appea l, we revie w at some leng th the estate tax sche me in e ffe ct in 2002, the y ear of Crespo’ s death. Under the I nterna l Re venue Code of 1986, as amende d (I RC), an estate was entitled to a tax cre dit (the state tax cre dit or state death tax cre dit) fr o m t h e fede ral estate tax for estate taxes paid to any state, up to a

-5-maxi mum amount set forth by the I RC. 26 U.S.C. § 2011 (2000). Be tween 1983 and 2002, 3

“I llinois imposed a ‘pick-up’ estate ta x ‘ c o u pled’ with fede ral law.” Brooker v. Madigan
, 388 I ll. App. 3d 410, 411 (2009). Specifically
, I llinois tied its estate tax to the federal state t ax

cre dit ( id. ) and “def

ined state estate- tax liability as the amount of t he cre dit for state tax allowable under fede ral law” (Da vid A. Be rek, Illinois’ New Estate-Tax Law
, 91 I ll. B.J. 465 (2003))

. “Thus, the state would not impose its own tax; rathe r, it would rec eive, or ‘pick up,’ the amount allocated under fede ral law .” B ere k, supra , at 465. ¶ 21 The I llinois pick-up estate tax scheme was codified in the Act. Brooker
, 388 I ll. App. 3d
at 412-13. Under the statute, taxable transfe rs of t ra nsfer red proper

ty having a tax situs in I llinois wer e taxed at the maxi mum allowable state tax cre dit under section 2011 or section 2604 of the I RC (26 U.S.C. § § 2 0 1 1
, 2604 (2000))

. 35 IL CS 405/3 (West 2002). The Act def i n ed a “taxable transfe r” as “an event that g ives rise to a state tax cre dit, including any

cre dit allowable as a result of the imposit ion of an additional tax under Section 2032A(c ) of the [I RC] .” 35 IL CS 405/2 (West 2002)

. I t de fined “state tax cr edit” as “the cre dit f or state tax allowable under Section 2011 [(estat e tax)] or Section 2604 [(ge neration-skipping transfe r tax)] of the [I RC] .” Id. ¶ 22 The Act define d “I llinois estate tax” (which, along with the “I llinois g ener ation-skipping transfe r tax,” comprised the “I llinois transfe r tax”) as “the tax due to this State with respe ct to a taxable transfe r that g ives rise to a fede ral estate tax.” 35 I L CS 405/2 (West 2002). The Act imposed an e state tax “on every taxable tr ansfe r involving transfer red pr operty

having

a tax situs within [I llinois ].” 35 I L CS 405/3(a) (West 2002). The amount of the estate tax was “the maxi mum state tax cre dit allowable with respe ct to the taxable transfe r reduc ed by the lesser o f” any certain amounts paid t o other states or wit h respe ct t o property not having a situs in I llinois

. 35 I L CS 405/3(b) (West 2002); see als o 3 5 I L C S 405/4(b) (West 2002) (imposing a g ener ation-skipping transfe r tax on the “maximum state tax cre dit allowable” ). The Act also require d that a copy of t he federa l return be fil ed with an I llinoi s t ransf er tax return. 35 I

L CS 405/ 6(f) (West 2002). ¶ 23 The Act’s provi s i o n s ad d re s s i n g the duty to file a return and pay the tax wer e also coupled with fede ral law. Section 6(c) of the Ac t identified who wa s responsible for filing

a return (including a supplemental return) and paying the tax (including any additional tax that subsequently

became due) . I t stated: “The I llinois transfe r tax return ( including any supplemental or amende d return ) shall be filed, and the I llinois transfe r tax ( including a n y a d d i t ional tax that may becom e due ) shall be paid by the same person or persons, respe ctively
, who are require d to pay the

Wi th the pas sage of the Econ om ic Growt h and T ax Rel ie f Reco nci li at ion Act of 2001
, Pub. 3 L

. N o

. 1 0 7 -16
, 115 Sta t. 38, the cr edi t for st at e est at e ta xes pai d was pha sed out and eventu al l y

re pea le d. 26 U.S.C. § 2011 (20 02)

. I ll ino is
, li ke some oth er st at es wit h pic k- up ta x syste m s, amended the Act to re cap tur e some of the los t re venues

. Pub. Act 93- 30 (e ff

. J une 20, 2003 ); see al so Broo ker

v. Ma dig an , 388 I ll

. App. 3d 410, 412-13 (20 09) ; see genera ll y K evin M. B o h l
, N o t e , The Res urr ect ion of the Deat h Tax: Deco upl ing and the Econ omic Growt h and Tax Rel ie fRec onc il iat ion Act of 2001
, 13 Eld er L.J

. 417 (20 05) ; David A. Ber ek, Il li noi s’ New Est ate -Tax Law
, 91 I ll

. B.J

. 465 (20 03)

.
-6-relat ed federal transfe r tax and file the rela ted fede ral return.” (Emphase s added.) 35 I L CS 405/ 6(c) (West 2002). See also 26 U.S.C. §§ 2002, 2203, 6018 (2000) (imposing duty to file the fede ral return and
pay the fede ral estate tax on the estate’ s executor or, if none, the estate’ s repr esenta tive with possession of estate proper ty ). I llinois taxes and returns wer e due “on the due date or dates,
respe ctively
, including ext ensions, for pay ing the rela ted federa l transfe r tax and filing the related fede ral return.” 35 IL CS 405/6(a) (West 2002); see also 35 I L CS 405/8(c)( 1) (West 2002) (automatica lly extending the due date for filing an I llinois re t u rn and pay ing the I llinois tax when the due date for the f eder al re turn and tax is ex tended)

. ¶ 24 Section 7(a) of the Ac t addre ssed supplemental re turns and provide d as follows:

“(a ) Supplemental returns. I f the State tax cre dit is incre ased afte r the filing of the I llinois transfe r t ax return, the person or persons required to file t he I llinois trans fe r t ax return and pay the I llinois transfe r tax shall file a supplemental Illinois transfer tax return

. The supplemental return shall be filed and the additional tax shall be paid in the same place and manner as provided in Section 6 of this Act. The due date for the supplemental return and for the payment of the additional tax repor ted in the supplemental return shall be no later tha n 3 months after the earliest of: (1) the date an a mended, r elated f eder al re turn is filed; (2) the date an incr easein the fede ral tra nsfer tax i s paid or ac cepte d in writing; or (3) the date the [I RS] issues a reque st for evidenc e of pay ment of the State tax cre dit; provided that if the relate d fede ral tra nsfer tax m ay be def err ed or pa id in inst allments, then part or all of the additional I llinois trans fe r t ax may be defe rre d or paid in installments under rules consistent with subsection (b) of Section 6 of this Act.” (Emphasis adde d.) 35 IL CS 405/ 7(a) (West 2002). See also People ex rel. Burris v. Boege r , 268 I ll. App. 3d 746, 748-49 (1994) (“se ction 7 of the Act [citation] place s an affirmative duty on the t axpay er t o fi le a supplemental I llinois transfe r tax return and pay additional tax wher e the State tax cre dit is incre ased afte r the filing of the I llinois transfe r tax return”)

.

¶ 25 C. Personal L iability ¶ 26 Turning to the first issue in this appea l, the extent of an execu t o r’ s p er s o nal liability
, section 10(c ) of the A ct stated: “(c ) Personal liability

. I f the I llinois transfe r tax is not paid when due, then the person require d to file the related fede ral return and the transfe ree of any transfe rre d property having a tax situs within this State shall be personally liable for the Illinois transfer tax , to the extent of such transfe rre d property orig inally rec eived, controlled or transfe rre d to that person or transfe ree , less the amount of any expenses or char g es ag ainst the transf er red property , related to the taxable transfe r, which have a highe r priority of
pay ment under applicable law than the I llinois transfe r tax.” (Emphasis added.) 35 I L CS 405/10(c) ( West 2002). ¶ 27 Plaintiff arg ues that the Ac t held defe ndant, who wa s require d to file the fe deral return

-7-as executor of the estate, persona lly liable for the additional estate tax due subsequent to the

incre ase in the state tax cre dit. Plaintiff urg es that the statute’s plain lang uag e unambig uously mandates th i s reading and is consistent with the Act’s coupling of the I llinois and fede ral
estate tax laws and the Gene ral Assembly ’s intent that under t h e Ac t t h e state pick up the entire state tax cre dit. Plaintiff contends that the trial court’s finding that section 10(c) held

a fede ral filer persona lly liable only for the orig inally filed return (bec ause the section did not cont ai n t h e words “additional tax”) is improper, ignor es the Act’s definitions, and fails to

rea d section 10(c) i n conjunct i o n wi th the remainder of the s tatute. According to plaintiff,
t h e trial court’s rea ding nullifies the Act’s collection mecha nisms as to any tax l i ab i l i t y arising from a subse quent I RS audit of an estate’ s tax return. ¶ 28 Plaintiff notes that section 10(c) held the federa l filer personally liable for the “I llinois transfe r tax” not paid by the estate. As noted, the Act define d “I llinois estate tax” as “the tax due to this State with respec t to a taxable transfe r that g ives rise to a fede ral estate tax.” 35 I L CS 405/2 (West 2002). Plaintiff arg ues that, once it became due, any additional estate tax arising from the I RS’s adjustment to the taxable estate and the state tax cre dit was no less a “tax due to this State with respe ct to [t he] taxable transfe r t h at [gave ] rise to [t he] fede ral
estate tax” ( id. ) than was the self-a ssessed estate tax that defe ndant reported in the orig inal I l l i n o i s estate tax return. Thus, plaintiff rea sons, the “I llinois transfe r tax” included an y additional estate ta x that arose from the I RS adjustm ent to the estate ’s state tax credit. ¶ 29 Def

endant r esponds that the Gene ral Assembly intentionally ref used to cre ate pe rsonal liability for any “additional tax” that an estate might owe afte r the filing of an initial transfe r tax return. He urg es that the s t at u t e unambig uously distinguished betwee n the “I llinois transfe r tax” and the “additional tax” and did not impose persona l liability for the “additional tax.” Def endant points to sections of the statute that ref er to a suppl emental return and the additional tax. Specifica lly
, in addition to the sections quoted above, defe ndant notes that section 8 of the A ct, which c ontained the statute’ s penalty provisions, provided: “(a ) Fa ilure to file return. I n case of failure to file any return require d under this Act with the Attorney Gene ral by the due date , unless it is shown that the failure to file is due to

a rea sonable cause , there shall be added to the amount require d to be shown as tax on the
return 5% of the amount of that tax ( or 5% of the ad d i t i o n a l tax due in the case of a supplemental return ) if the failure is for not more than one month from the due date, with

an ad ditional 5% for eac h additional month or fra ction of a month there afte r d u ri n g which the failure to f

ile continues, not exceeding in the ag g reg ate 25% of the tax or, in the case of a supplemental return, 25% of the additional tax

. (b) Failure to pay tax. I n the case of failure to pay the amount of t ax shown due on
any return require d u n der this Act on or befor e the due date for pay ment of that tax, unless it is shown that the failure to pay is due to rea sonable cause , there shall be added
to the unpaid amount of the tax 0.5% of that unpaid amount if the failure is not more than

one m o n t h from the due date, with an additional 0.5% for eac h additional month or fra ction of a month there afte r during which the failure to pay continues, not exceeding in the ag g reg ate 25% of the unpaid amount.” (Emphase s added.) 35 I L CS 405/8(a)
, (b) (West 2002).

-8-Def endant arg ues that sections 6, 7, and 8 of the Act distinguished betwee n t h e i n i t ial “I l l i n o i s t ransfer tax” that was based on an initial “I llinois transfe r tax return” and an “additional tax” that was based on a “supplementa l return,” and he urg es that the distinction must be applied to section 10(c ). ¶ 30 T h e fundame ntal rule of statutory construction is to asce rtain and g i v e ef fe ct t o t h e leg islature’s intent. Michigan Ave nue National Bank v. County of Cook
, 191 I ll. 2d 493, 503- 04 (2000). The best indication of leg islative intent is the statutory lang uag e, g iven its plain and ordinary meaning

. Illinois Graphics Co. v. Nickum
, 159 I ll. 2d 469, 479 (1994). Where the l ang uag e is clea

r and unambig uous, we must apply the statute without resort to further aids of statutory construction. Davis v. Toshiba Machine Co., America
, 186 I ll. 2d 181, 184- 85 (1999). Howeve r, if the statutory lang uag e is a mbiguous or unclea r, this court may look bey ond the Act’s lang uag e to asce rtain its meaning

. In re D.D.
, 196 I ll. 2d 405, 419 (2001). A statute is ambig uous if it is capa ble of more than one rea sonable interpre tation. County of Du Page v. Il l inois Labor Relations Board
, 231 I ll. 2d 593, 604 (2008). “ ‘[S] tatutes imposing a tax are strictly construed ag ainst the g overnme nt and in favor of the taxpay er.’ ” Brooker
, 388 I ll. App. 3d at 416 (quoting In re Consolidat ed Objections to Tax Levies of School District No. 205
, 193 I ll. 2d 490, 496 (2000))

. Howeve r, in order to eff ectuate t h e leg islature’s intent, “they must be g iven a rea sonable construction, without bias or prejudice
ag ainst either the sta te or the ta x pay er.” (I nterna l quotation marks omitted.) Id. ¶ 31 I n evaluating whether a statute is ambig uous, a court rea ds the s t at u t e as a whole. See Hytel Group, Inc. v. Butler
, 405 I ll. App. 3d 113, 124-25 (2010); La Salle Partners, Inc. v. Illinois Property Tax Appeal Board
, 269 I ll. App. 3d 621, 626 (1995) (s t at u t e i s rea d as a whole, g iv ing words their plain and ordinary meaning ; “statutory lang uag e should not be rea d in isolation”). Reading the statute as a whole, we conclude that section 10(c) of th e Act unambig uously imposed on a fede ral filer persona l liability for failure to pay any additional
estate tax. We reje ct defe ndant’s arg ument that the absenc e of the term “additional tax,” or

even “supplementa l return,” in section 10(c) ref lects that the provision does not incorporate it. Reading the Act as a wh o l e, i t is clea r that “I llinois transfe r tax” incorporates any “additional tax,” even w here“additional tax” is not specifica lly mentioned. ¶ 32 Section 6(c) of the Act imposes on a fede ral filer the duty to pay all estate taxes and file all returns for th e es t at e. I t states that the “I llinois transfe r tax return (including any supplemental or amende d return) shall be filed, and the I llinois transfe r t ax (including any additional tax that may become due) shall be paid by ” the fede ral filer. 35 I L CS 405/6(c) (West 2002). The wording
, and pare nthetical use, of the term “includi n g an y ” u n a mb ig uously ref l ect that the “I llinois transfe r tax return” includes any supplemental return and that the
term “I llinois transfe r tax” includes any additional tax. This rea ding is further supported by the fact that section 2, which contains t he st atute’s definitions, does not contain a separ ate definition for “supplementa l return” or “additional tax,” but instead broadly define s “I llinois transfe r tax” (as “the I llinois estate tax or the I llinois g ener ation-skipping transfe r tax”) and “I llinois estate tax” (as “the tax due to this State with respe ct to a taxable transfe r that g ives rise to a fede ral estate tax”). 35 I L CS 405/2 (West 2002). After setting forth (in section 6(c) ) the fede ral filer’ s duty to file all returns an d pay all estate taxes, the Act then provides in section 10(c) : “I f the I llinois transfe r tax is not paid w hen due,” then the fede ral filer “shall

-9-be persona lly liable for the I llinois transfe r tax.” 35 I L CS 405/10(c) (West 2002). Given that

section 6(c) clarifies the duty and instructs that the fede ral filer must file all returns and pay all estate taxes, section 10(c)
, we believe, unambig uously
, and without the need to ag ain state that the fore g oing terms include supplemental returns and additional taxes, imposes persona l liability on the fede ral filer for the failure to file any return and/or pay any estate tax. Finally
, we reje ct defe ndant’s arg um ent that the inclusion of the terms “additional tax” and “supplementa l return” in section 8, the penalty provision, indicates that their absenc e in section 10(c) ref

lects a leg islative intent to exclude them. In our view, section 8’s ref ere nce to the fore g oing terms is nece ssary to identify the tax on a supplemental return that is subject
to a penalty assessment. 35 I L CS 405/8(a) (West 2002) (“25% of the t ax” versus “2 5 % of the additional tax”). ¶ 33 I n summary , rea ding the statute as a whole, it is clea r that section 10(c) unambig uously imposes on the fede ral filer persona l liabilit y

for the f ailure to pa y

any additional tax.

¶ 34 D. 2003 Certificate of Discha rg e ¶ 35 Al t h o u gh n o t ad d re s s ed b y t h e trial court, we next assess the import of the 2003 Certificate of Dischar g e, which defe ndant raised as an a ffirma tive defe nse in his summary judgme nt motion. Her e, defe ndant arg ues t h at , ev en if the Act cre ates only one I llinois transfe r t ax, the 2003 Certificate of Dis ch ar ge wa s a full, final, and complete discharg e of his personal liability

for the a dditional estate tax (and re lated pena lties and interest). ¶ 36 T h e 2 0 0 3 C er t i ficate of Dischar g e stated, in part: “On the basis of the info rm at i o n submitt ed, t h e [pl aintiff] has determined that the I llinois estate tax liability
, including any interest and penalties of the estate[,] has been paid.” I t further provided: “This certificate is issued and may be exhibi ted as evidenc e of (1) the complete rele ase of all the property of this
estate from the lien imposed by the I llinois Estate Tax L aw and (2) the d i s ch ar ge from
persona l liability of the executor of this estate for the estat e t ax , p enalties and interest imposed by

the I llinois Estate Tax L aw.” ¶ 37 Def

endant points to section 10(e ) of the A ct, which state d: “(e ) Waiver of L ien and persona l liability

. I f the Attorney Gene ral is satisfied that no liability for I llinois transfe r tax exis ts or that th e I l l inois transfe r tax has been fully discharg ed or provided for, the Attorney Gene ral shall issue a certificate rele asing all of the transfe rre d property having a tax situs within the State of I l l i n o i s fr om the lien imposed by this Section. Issuance of such certificate shall discharge the person required
to file the related

federal return and any transferee from personal liabili ty for the Illinois transfer tax .” (Empha ses adde d.) 35 IL CS 405/ 10(e) (West 2002). Def enda n t asserts that section 10(e) of the Act unambig uously instructs that the Attorney Gene ral is to determine the amount of tax due from an estate, satisfy herse lf that the tax due, if any , i s p ai d, and is sue one certificate to rele ase the lien and dis char g e personal l iability

. Def endant urg es that the “Illinois transfe r tax” was due when plaintiff “dete rmined” that the
amount due was only $81,397, which arose upon Crespo’s death in 2002. Further, he claims that, eff ective November 5
, 2003, the 2003 Certifica te of Dischar g e unambig uously discharg ed him from persona l liability for the transfe r tax, whether that tax was $81,397 or

-10-any other a mount. ¶ 38 Plaintiff arg ues that the 2003 Certifica te of Dischar g e did not discharg e defe ndant from
persona l liability for additional estate tax and re lated penalties and int ere st not reported i n the orig inal I llinois estate tax return. Plaintiff contends that defe ndant’s position ignor es the

certificate’ s express lang uag e, as well as that of the Act, and urg es that the certificate neither

re fe rre d to nor contemplated the discharg e of unknown, future tax liabiliti es t h at subsequently arose from I RS adjustments. Plaintiff notes that the certificate specifie d that it

was issued on “the basis of the information submitt ed” and that it discharg ed the exis ting $81,397 I llinois estate t ax l i ability

. By its express terms, the certificate did not discharg e defe ndant from any future tax liabiliti es. Plaintiff notes that, when the certificate was issued, plaintiff was not awa

re that the I llinois estate tax return underva lued the estate or that the I RS would later incre ase the state tax cr ed i t

. I t was not until three y ear s later that the I RS incre ased the cre dit. ¶ 39 Al ternatively
, if the statute is ambig uous, plaintiff notes that her prac tice has been t o issue a certificate afte r the fede ral filer has paid the reported tax in an orig inal I llinois estate tax return and to issue a supplemental certificate discharg ing the fede ral filer from persona l

4 liability for any additional estate tax, and she asserts that this court should defe r to her interpre tation of t he st atute, si nce plaintiff is char g ed with the statute’s a dminist ration and enfor ceme nt. F inally
, plaintiff urg es that, if a Certifica te of Discha rg e discharg es all future liabiliti es and liens, then it would neg ate the Act’s enfo rc em en t provisions and prec lude
p l ai n tiff’s actions to collect any additional tax arising from an I RS adjustment. Wit h n o liability for any such additional tax, the fede ral filer, plaintiff contends, would have littl e incentive to report I RS adjustments throug h a supplemental return or to ensure that the estate

was a ccur ately

valued in the origina l tax return. ¶ 40 We first conclude that the 2003 Certifica te of Dischar g e d id n o t d ischarg e defe ndant from
persona l l iability for the additional estate tax that became due as a result of the I RS audit. Clearly
, as plaintiff notes, the certificate itself a pplied only

to the liability

ref lected the rein and the fig ures and information upon which that liability was calc ulated. I t stated that it was issued “[o] n the basis of the information submitt ed” and listed only the es tate’s initial $81,397 I llinois estate tax liability

. I f the information submitt ed was inacc urate , then the

certificate could not eff ect a “discha

rg e from persona l liability ” for a l l est ate taxes determined to be owed. ¶ 41 Second, we conclude that the s tatute does not mandate a differ ent re sult. S ection 10(e ) does n ot limit plaintiff t o issuing only one certificate for an estate and makes no ref ere nce to the “I llinois transfe r tax” h av i n g b ee n finally discharg ed. I f the Gene ral Assembly had intended that only one certificate i s s u e, it could have included lang uag e clarify ing that plaintiff could issue a ce rtificate only afte r a liability was fully and finally determined (pre sumably upon the expiration of the statute of limit ations for collection of any additional tax). The provision contains no such lang uag e.

Pla int if f not es tha t the cer ti fi cat e is nec ess ar y to aut hor ize the T re asu re r to is sue any re fun d, 4 wher e, a s he re , th e f

ede ra l f il er overpa id the I ll ino is es ta te ta x as ses sed in th e or igina l r et urn

.

-11-¶ 42 I n summary , the Certificate of Dischar g e did not d i s ch ar ge d ef en d an t from per sonal liabilityfor a ny

additional estate ta x (and r elated pe nalties and intere st).

¶ 43 E. Plaintiff’s Summary J udg ment Motion ¶ 44 Addre ssing her summary judgme nt motion, plaintiff next arg ues that there is no g enuine issue of m aterial fac t as to whether defe ndant is persona lly

liable for theestate’ s $162,332 in unpaid I llinois estate tax and rela ted penalties and interest. Plaintiff asserts that, pursuant t o section 10(c) of the Act, the following elements are satisfied: (1) defe ndant was “the
person require d to file the related fede ral re t u rn ” o f the estate; (2) the estate owed I llinois
estate tax in a cer

tain amount; and (3) the amount owed was n o t paid when due. 35 I L CS 4 0 5 /10(c) (West 2002). Defenda nt does not dispute that he was the person require d to fi l e the estate’s related federa l return, nor does he dispute that no additional tax was paid. The parties’ centr al dispute conce rns whether there is a materia l fac tual question conce rning the second element. S pecif

ically
, we must addre ss the admis sibili ty of t he I RS Report an d the Waiver, the documents that plaintiff utiliz ed to support her position that th e es t ate owed additional tax. Def

endant arg ues that plaintiff did not offe r any admissible e v id e n c e that there

was any additional tax outstanding (eve n if defe ndant would have been persona lly liable for that tax) and, thus, was not entitled to summary judgme nt. For t h e fo llowing rea sons, we conclude that the I RS Report and the Waiver are proper ly authenticated and admissible under the public rec ords exception to the hear say rule to show that the estate owed a certain amount in additional tax; thus, no materia l fac t u al q u est ions prec lude summary judgme nt in plaintiff’s fa vor. ¶ 45 Ag ain, s ection 7(a) of the Act provided, in rele vant part, that, if “the State tax cre dit is incre ased afte r the filing of the I llinois transfe r tax return, the person or persons require d to file the I llinois transfe r tax return and pay the I llinois transfe r t ax shall file a suppleme ntal I llinois transfe r tax return.” 35 I L CS 405/7(a) (West 2002). Following its audit of the estate’ s fede ral estate tax return, t h e I R S
, on Aug ust 11, 2006, issued its Report, stating that the estate’ s state death tax cre dit incr ea s ed from $81,398 to $243,729 (base d on its revised calc ulation o f the fede ral taxable estate from $2,121,623 to $4,405,106). Further, the Waiver, which wa s appar ently

signe d by

Solovy , the estate ’s attorne y , stated:
“I consent to the immediate assessment and collection of any defic iencies (incre ase in tax and penalties) and acc ept any overas s es sment (dec rea se in tax and penalties) shown below
, p l u s an y interest provided by law. I understand that by my signing this waiver
, a petition to the United States Tax C o u rt may not be made, unless additional defic iencies a

re de termined.” ¶ 46 Plaintiff arg ues that the certified copies of the fore g oing documents (which included the stamp and ra ised seal of the Chicag o I RS office and the handwriting of a disclosure specia list, specifying the number of pag es, the date, and her signature and title) are admissible and show that the estate owes an additional $162,332 in I llinois estate tax. Plaintiff notes that defe ndant admitted in his answe r to the complaint that the I RS issued its Report (whic h ref

lected a $162,332 incre ase in the estate’ s allowable state tax cr edit, from $81,397 to $243,729). Acc ording to plaintiff, throug h the Waiver, the estate acc epted the

-12-incre ased fede ral estate tax liability ref lected on the I RS Report. Further, pursuant to section 7(a) of the Act, the estate owed $162,332 in additional estate tax and defe ndant was require d to f ile a supplemental return and pay the additional tax on the estate’ s behalf
, which he did
not do. Specifically addre ssing the documents’ admissibili ty , plaintiff arg ues that they are admissible as: (1) self-authenticating documents under I llinois Rule of Evidence 902(1) (I ll. R. Evid. 902(1) (ef

f. J an. 1, 2011)); (2) public rec ords under I llinois Rule of Evidence 803(8) (I ll. R. Evid. 803(8) (ef

f. J an

. 1, 2011)); and (3) business rec ords under I llinois Rule of Evidence 803(6) ( I ll. R. Evid. 803(6) (eff. J an. 1, 2011))

. ¶ 47 Evidence such as hear say , which is ina dmissibl e at trial, is not admissible in support of or in opposition to a summ ary judgme nt motion. Dangeles v. Muhlenfeld , 191 I ll. App. 3d 791, 799-800 (1989). Ba sic rules of evidenc e require that a party lay a proper foundation for the introduction of a document into evidenc e. Gardner v. Navistar Interna t i o n a l Transport ation Corp.
, 213 I ll. App. 3d 242, 247-48 (1991). To proper ly authenticate a document, a party mu s t p re s ent evidenc e that demonstrates that the document is what the party claims it to be. Id. ¶ 48 Under Rule 902(1), certain evidenc e is se lf-authe nticating and extrinsic evidence of its authenticity

is not a prer equisite to its admissi on, wher e the doc ument constitutes: “(1) Domestic Public Documents Under Seal. A docume nt bearing a seal purporting
to be that of the United States, or of any State, district, *** or of a political subdivision, department, office r, or ag ency there of, and a signature purporting to be an att estation

or exe cution .” (Empha ses adde d.) I ll. R. Evid. 902(1) (eff . J an. 1, 2011). ¶ 49 I n fede ral tax challeng es, the authenticity and certifications of certified copies of forms simil ar to the Report have been deeme d sufficie nt under simil arly worde d fede ral rules. See,
e.g. , Hughes v. United States
, 953 F.2d 531, 539-40 (9th Cir. 1992) (in action seeking to stop I RS collection and addre ssing authenticity and cer tification of I RS Forms 4340 (“Certificate of Assessments and Payments”), court held that th e documents wer e admissible as selfauthenticating public documents under Fe dera l Rule of Evidence 902(1) (F ed. R. Ev id. 5 902(1)) beca

use they wer e cer

tified under seal and bore an appropriate signature, reg ardle ss of which cer

tify ing form was utiliz ed); see also Schmidt v. Internal Rev enue Servic e , 717 F. Supp. 763, 764 (D. Kan. 1989) (F orm 4340 not hear say ; “ce rtified public documents are

Fede ra l Ru le of

Eviden ce 902( 1) st at es: 5 “T he fol lowi ng it ems of eviden ce ar e sel f- aut hen ti cat ing; the y re qui re no ext ri nsi c eviden ce of aut hen ti ci ty in ord er to be admitt ed:

(1) Dom est ic Publ ic Documents T hat Are Sea le d and Signed. A doc um ent tha t b ear s: (A) a sea l pur por ti ng to be tha t of the Unit ed Sta te s; any s ta te , dis tr ic t, comm onwea lt h
, te rr it ory, or ins ula r pos ses si on of the Unit ed S t a t e s ; the for m er Pana m a Cana l Z one ; the T rus t T er ri tor y of the Pac if ic I sl and s; a pol it ic al sub divis ion of any of the se ent it ie s; or a dep ar tment, agency, or of

fi cer of any ent it y nam ed a bove; a nd (B) a s ignat ure pur por ti ng to be an execu ti on or att est at ion .” Fed. R. Evid. 9 02( 1).

-13-proper and admissible evidenc e” unde r F eder al Rules of Evidenc e 902(1) and 803(8) ). ¶ 50 Her e, as plaintiff notes, defe ndant does not appea r to dispute that the I RS Report and the Waiver wer e properly cer tified under seal to est ab l i sh the authentication require d for admission. Ba sed o n t h i s and the fore g oing persua sive authority
, we conclude that the documents ar e self- authenticating public doc uments under Rule 902(1)

. ¶ 51 Although certified copi es o f d o cu m en t s s uch as the Report and the Waiver are selfauthenticating, the documents must nevertheless fit within other rules of evidenc e, such as the hear say rule. In re Garm
, 114 B.R. 414, 416 (B ankr. M.D. P a. 1990); Christopher B. Mueller & L aird C. Kirkpatric k, 5 Fe deral Evidence § 9:30 (3d ed. 2011) (“The selfauthentication provisions of Fe d. R. Evid. 902(1) to (4) complement t h e b road hear say exceptions for public rec ords found in Fe d. R. Evid. 803. *** I f a document is introduced to prove what it asserts, howeve r, no combination of signature, certificate, or seal can make it admissible if it does not satisfy the re quirements of one of the he arsa y exceptions.”). ¶ 52 Turning to the hear say issue, Rule 803 provides that certain evidenc e is not excluded as hear say , even though the decla rant is available as a witness. Rule 803(8), which contains the public rec ords exception to the hear say rule, states: “(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public office s or ag encie s, setting forth (A) the activities of the office or ag ency , or (B ) matters observe d pursuant to duty imposed by law as t o whi ch matters there was a duty to report, excluding, however, police acc ident reports and in cr iminal

case s medical rec ords and matters observe d by police office rs and other law enfor ceme nt personne l, unless the source s of i n fo rm ati on or other circ umstances indicate lack of trustworthiness.” I ll. R. Evid. 803(8) (eff . J an. 1, 2011). ¶ 53 Plaintiff contends that the Report and the Wa i v er ar e ex ce p t ed from the hear say rule under Rule 803(8) beca

use they are public reports and rec ords setting forth both the activities of the I RS and mat ters observe d pursuant to its leg al duties. The Report, acc ording to plaintiff, sets forth the IRS’s findings fr om its audit of the estate’s fede ral e state tax return pursuant to the ag ency ’s statutory mandate and the I n t erna l Revenue Manual. 26 U.S.C. §§ 6201, 6203, 6501 (2000); I nterna l Revenue Manual § 4.25.1.1.12(2), (4), (5) (ef f. Oct. 25, 2011), available at http:// www.irs.g ov/irm/part 4/irm_04-025-001.html. A s to the Waiver, plaintiff notes that the I nterna l Revenue Manual require s the examiner to seek a waiver from the taxpay er. Plaintiff arg ues that the Report and the Waiver set forth core I RS activities and its findings obser ved pursua nt to its duties under the IRC. ¶ 54 Def

endant arg ues that the Report and the Waiver are not a dmissibl e under Rule 803(8)

as pub l i c re co rd s b eca

use they do not set forth the activities of the ag ency or matters observe d pursuant to any leg al duty

. Acc ording to defe ndant, the Report challeng es the estate’ s valuation of cer

tain property and, thus, constitutes a position paper by the I RS setting forth its opinion that the estate’ s valuation was flawe d. Simi larly
, defe ndant arg ues that the Waiver does not set forth any I RS activities and is not a matter it observe d pursuant to a leg al duty
, but instead purports to be an activity underta ken by Solovy

. Further, defe ndant arg ues that, even if the Report is excepted from the hea rs ay rule, the fede ral estate tax return submitt ed by the estate, which sets forth a differ ent valuation for the estate, raises a fac tual

-14-question reg arding the corr ect valuation, thereb y cr ea t ing a materia l fac tual question

conce rning whether

there is any

additional tax owed by

the estate

. ¶ 55 As to the Report, no case has addre ssed t h e ad m i s s ibilit y of such a document over a hears ay objection. Howeve r, fede ral case law involving actions seeking to stop I RS collections ref

lects t h at ce rtified copies of simil ar I RS reports used to substantiate tax liabiliti es are admissible under the simil arly worde d Fe dera l Rule of Evidence 803(8). See, 6
e.g. , Rossi v. United States
, 755 F. Supp. 314, 317 (D. Or. 1990) (ce rtified copies of “F orms 4340 are not hear say beca use these rec ords fit within the ‘public rec o rds’ exception” of Fe dera l Rule of Evidence 803(8))
, aff’d
, 983 F.2d 1077 (9th Cir. 1993) (table) ; Schmidt
, 717 F. Supp. at 76 4 (ce rtified copies of Form 4340 not inadmissible hear say ; documents are proper and admissible under

Fe dera l Rules of Evidence 902(1) and 803(8))

. ¶ 56 Ba sed o n the fore g oing persua sive authority
, we conclude that the I RS Report and the W ai v er are admissible as publ ic records. As to defe ndant’s arg ument that plaintiff di d n o t lay a proper foundation for the documents’ admission, we note that this require ment does not apply to self-authenticating public rec ords. United States v. Loyola-Dominguez
, 125 F.3d 1315, 1318 (9th Cir. 1997) (“the [federa l] public rec ords exception is one of the few hear say exceptions that does not require a foundation” since t he documents are presumed trustworthy ); 2 Robert J

. Steigmann & L ori A. Nicholson, I llinois Evidence Manual § 9:14 (4th ed. 2006) (“The proponent of a public rec ord that is not self-authenticating must lay an adequate foundation.”); see a lso 4 Christopher B. Mue ller & L aird C. Kirkpa trick, F eder al Evidence § 8:92 (3d ed. 2011) (burde n on objecting party to show rec ord is untrustworthy ). ¶ 57 Responding to defe ndant’s sug g estion that he may challeng e the Report’s dete rmination of the estate’ s value, plaintiff contends that the Act does not require her to prove that the I RS

corr ectly determined the estate’ s value under the I RC. Rather, the tax owed under the Act is calc ulated from the estate’ s value as finally determined in the fede ral estate tax proce ss. 35 I L CS 405/2, 3, 5(c) (West 2002). Plaintiff urg es that, if defe ndant wished t o d i s p u t e the I RS’s determination, the proper venue to challeng e it wa s b ef ore the I RS or in fede ral tax court, and the Act nowher e authoriz es ei t h er defe ndant or plaintiff to relitig ate that determination in st ate court for purposes of calc ulating the proper tax due under the Act. Plaintiff notes that, if a judge in an I llinois court wer e to find that the Report’s valuation was

err oneous under the I RC, any tax rea ssessed on such a valuation would violate section 5(c)

Fede ra l Ru le of

Eviden ce 803( 8) st at es: 6 “( 8) Publ ic Rec ord s. A r eco rd or st at ement of a p ubl ic of

fi ce if : (A) it se ts out : (i ) t he o ff ic e’ s a ct ivit ie s; (i i) a m at te r obs er ved whil e unde r a l e gal dut y to re por t, but not inc lud ing, in a cr iminal cas e, a m at te r obs er ved by l aw- enf orc ement per son nel ; o r (i ii ) i n a c i vi l cas e or agains t the gov er nm ent in a cr iminal cas e, fa ct ual fi ndi ngs fr om

a l egall y autho ri zed in vesti gatio n; and (B) nei the r the sou rc e of [t he] inf ormati on nor oth er ci rc um st anc es ind ic at e a l ack of tr ust wort hin ess .” Fe d. R. Evid . 803 (8)

.

-15-of the Act. 35 I L CS 405/5(c) (West 2002) (“Excep t as otherwise expressly provided, for

purposes of this Act, the gross value of transferred property shall be its va l u e a s f inally determine d for purposes of the related federal transfer tax , undiminis hed by ” certain encumbr ance s upon the property “for which the dece dent was persona lly liable.” (Emphasis added.) ). We ag ree and find unavailing defe ndant’s arg ument on this point. Certified copies of Forms 4340, for example, are used to establish that the I RS has assesse d a tax, and a taxpay er may rebut the presumption of corr ectne ss. See, e.g. , Dallin v. United States
, 62 Fe d. Cl. 589, 600 (2004) (citing case s and noti ng , “It is well established that a ce rtified copy of the taxpay ers’ Form 4340 trig g ers the presumption of corr ectne ss in favor of the g overnme nt, and is ‘routinely used to prove that a tax assessment has in fac t been made.’ ” (quoting Rocov ich v. United States
, 933 F.2d 991, 994 (F ed. Cir. 1991)))

. Howeve r, this is done in the
context of a proce eding wher ein either the I RS see ks to c ollect a tax or a taxpay er attempts to challeng e the I RS’s assessment. I t cannot be acc omplished via a proce eding under the Act. The pick-up estate tax scheme that was codified in the Act nece ssarily did not empower plaintiff to independe ntly assess the value of transfe rre d property (and there by rec alculate the
state tax cre dit) ref

lected in a fede ral return. Acc ording l y , d ef en d ant cannot, in this
proce eding , challeng e the IRS’s valuation. ¶ 58 For simil ar rea sons, we reje ct defe ndant’s arg ument that plaintiff neede d (and failed) to establish that Solovy was authorized to execute the Waiver. As plaintiff notes, the I RS finally determined the incre ase in the estate’ s state tax cre dit and, via the Waiver, defe ndant

acc epted this determination. Def endant asserts that plaintiff imp l icitly tried to admit the Waiver as an admission by a party opponent. He arg ues that: (1) the certified copy of the Waiver that plaintiff filed in the trial court is an incomplete copy of the form; (2) no evidenc e

was prese nted to show that Solovy actua lly signe d the form; and (3) plaintiff did not produce

an I RS Form 2848 (powe r of attorney ) authorizing Solovy to sign the Waiver. We reje ct this claim. As to defe ndant’s first a rg ument, we note that both the certified copy of the Waiver and a blank form there of that defe ndant offe rs for comparison consist of two pag es (and the I RS certification st at es t hat the cer tified copy consists of two pag es). The certified copy , howeve r, appea

rs to be missing a portion of the final sentenc e in the document. The missing portion is part of a para g raph rec iting signature instructions. The rele vant sentenc e, with the missing lang uag e emphasized, states: “An attorney or ag ent may sign this waiver provided the action is specifically authorized by a power of attorney which, if not previously filed,
must accom

pany this form .” (E m p h asi s added.) The fac t that a portion of an instructional provision has been cut off of a certified copy of an I R S d o cu m en t i s not, in and of itself, materia l or of conseque nce here

. I ndeed, the focus of defe ndant’s arg ument is that the Waiver is inco m p l et e b ec au s e it does not also contain a copy of a power of attorney , which the omitted lang uag e ref

ere nces. We find t h i s arg ument, too, unavailing

. First, the omitted instruction doe s not r equire that a power of attorne y

be attac hed to the Waiver in a ll c ases; rathe r, the attorney or ag ent signing the Waiver need not attach it if a power of attorney was “pre viously filed.” Second, we emphasize that defe ndant does not essentially challeng e the document’s authenticity ( i.e.
, he does not arg ue that it is not a copy of t he W aive r t h e I RS has on file). Rather, he contends that plainti ff f ailed to produc e any

evidenc e showing that Solovy actua lly signe d the form and that, if he did, a copy of the power of attorney is on file

-16-with the I RS showing that he was authorized to sign it. Thus, defe ndant essentially disputes

Solovy ’s authority to exe cute the Waiver. We reje ct this arg ument beca use the proper venue to challeng e Solovy ’s authority was befor e the I RS or in fede ral court. There is no document in the rec ord, such as an aff idavit from defe ndant, stating that Solovy was not authorized to repr esent the estate or even that the I RS’s determi n ati on of the estate’ s tax liability is still being litigat ed

. Even on the fac e of the certified copy of the Waiver, there is no I RS notation that the document wa s rejec ted by the ag ency beca

use no power of attorney had bee n filed in the case

. I ndeed, the Report identifies Solovy as the person with whom the I RS’s finding s

7

wer e discussed, and, as plaintiff notes, the Interna l Revenue Manual instructs the examiner
to discuss a case only with an attorney or a rep re s entative for whom the I RS has on file a power of attorney

. Interna l Revenue Manual § 4.11.55.1.4.1.5 (ef f. Apr. 20, 2010), available
at http:// www.irs.g ov/ i rm/part 4/irm_04-011-055.html (“I f a prepa rer , CPA, attorney , or enrolled ag ent calls to make an appointment or to disc uss a case and the I RS does not ha ve

a Form 2848 on file, the examiner must NOT discus s t h e ex amination, including acknow l ed gi n g that an examination is underw ay or schedule an appointment with the individual befor e a Form 2848 is rec eived to avoid any possibili ty of an unauthorized disclosure.” ). Ag ain, to acc ept defe ndant’s arg ument would permit defe ndant to relitig ate the estate’ s final valuation, which wou l d co n t rave ne the Act. Finally
, we note that the Act provided that a tax owed t h er eunder was calc ulated from an estate’ s value as finally determine d in the fede ral estate tax proce ss. 35 I L CS 405/2, 3, 5(c) (West 2002). A Form 890 waiver repr esents an estate’s acc eptanc e of an over assessment. Boege r , 268 I ll. App. 3d at 747. We can find no authority requiring plaintiff t o also file a certified copy of a power of attorney on file wit h the I RS, and we cannot conclud e here that she was require d to do so. Cf. id. at 749 (whe re the State filed a report and a Form 890 waiver to establish an incre ase in the s tate tax cre dit, court held that “the State tax cre dit was increase d by the acceptance of the overa ssessment. There fore
, the Estate had a duty to file a supplemental return and pay the additional tax”). Acc ording ly , we r ejec t defe ndant’s cla im. ¶ 59 As defe ndant does not raise this arg ument, we leave for another day the question whether both the Report and the Waiver are nece ssary to e stablish an incre ase in the state tax cr edit or whe ther the Report alone is sufficie nt. ¶ 60 I n summary , the certified copies of t h e R ep o rt and the Waiver (in the absenc e of any indication that a power of attorney was not on file with the I RS) a re proper ly authenticated and admissible under the public rec ords exception to the hear say rule to show that the estate owed a dditional I llinois estate ta x in a cer tain amount. Acc ording ly
, the trial court e rre d in deny ing pla intiff’s summary judgme nt motion.

I nde ed, as pla int if

f not es, vario us doc um ent s in the re cor d re fl ect tha t def end ant aut hor ized 7 Sol ovy to pre par e re tur ns and re pre sen t t he e st at e i n t ax matt er s: (1 ) t he e st at e’ s I ll ino is es ta te ta x

re tur n rece ived by pla int if f in 2003 ide nti fi es Sol ovy as the pre par er ; ( 2) a 2003 appl ic at ion for an ext ens ion of ti m e to fi le the fe der al est at e ta x re tur n re fl ect s tha t Sol ovy was the fi le r; and (3) Sol ovy pre par ed t he f

ede ra l e st at e t ax r et urn in 200 3.

-17-¶ 61 I I I . CONCL USI ON

¶ 62 I n conclusion, the circ uit court err ed in g ranting summary judgme nt in defe ndant’s favor and den y i n g i t i n p laintiff’s favor

. The judgme nt of the circ uit court of L ake County is

reve rsed, a nd summary

judgme nt is entered in plaintiff’ s favor

.

¶ 63 Reverse d.

-18-