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A p p e l l a t e C o u r t

In re Appli cation of the Cou nty Collector , 2011 IL App (3d) 100181

Appellate Court Caption In re APPL I CATI ON OF THE COUNTY COL LECTOR FOR J UDGMENTAND ORDER OF SAL E AGAINST L AND AND L OTS RETURNED DEL I NQUEN T FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 2004 and PETI TI ON OF DENNI S D. BA LL I NGER FO R A TAX DEED

.

District & N o. Third District Docke t No. 3–10–0181

Filed May 24, 2011

Held ( Not e: Thi s syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t 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

. ) Where the owner of farmland lease d a portion of the land to taxpay er for

a communications tower and the tax assessor assig ned the tower its own separ ate tax identification number and assessment but d id not make a separ ate assessment of the land, the trial c ourt err ed when, afte r the rea l
estate taxes beca me delinquent and wer e sold to plaintiff at a tax sale, the trial g rante d plaintiff”s reque st for a tax deed for the tower and the lease d parc el on which the tower was ere cted, since the owner and lessor of the land paid al l o f t h e t ax es on the l and, the land was never subject t o any delinquent taxes and the trial court had no jurisdiction to awa rd plaintiff

a tax deed for the land containing the tower, and, furthermore, the trial
court had no jurisdiction to direc t the issuance of a tax deed for the tower, which was tang ible persona l property , not rea l property , and was unlawfully

assessed a nd could not be subjec t to any delinquent taxes.Dec ision Under

Review Appea l from the Circuit Court of Hanc ock County
, No. 08

– T X– 6 ; the Hon. David F . Stoverink, J udg e, pre siding.

J udg ment Affir med in part a nd vacated in part; cause re manded.

Counsel on Appea l Mark S. Morthland (ar g ued), of Moore, Susler, McNutt & Wrigley
, LL C, of De catur , for a

ppellant.

Rodney G. Clark (ar g ued), o f Capps, Ance let, Clark & Rasmussen, of Carthag e, for

appellee Pettit L and, L .L .C.

J im Drozdz, State’s Attorney
, of Carthag e (B rian D. Hu nter, Assistant State’s Attorney , of counse l), for a ppellee H ancoc k CountyTrea surer

.

Panel J USTI CE Mc DADE delivere d the judgme nt of the court, with opinion. Presiding J ustice C arte r and J ustice O’Brie n concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Pettit L and, L .L .C., is the owner of a piece of rea l property , consisting mainly of farmland (the farmland), located in the county

. The farmland bear s the tax parc el identification number 09–06–000–062 ( PI N 09–06–000–062). ¶ 2 On Fe bruary 7, 198 5
, d ef en d an t en t er ed i n t o a l ea s e agr ee m en t with Waterway Communi cations Sy stem, I nc. (Waterway ), for a parc el of rea l property (the lease d parc el) 1 located on the farmland. The term of the lease was for 25 y ear s with an option for Waterway to ext end the lea se an additional 25 y ear s. The lea se wa s rec orded in the c ounty rec order ’s office

. Whil e the rec ord is unclea r as to the exact date, Waterway
, at some point afte r enter ing into the lease ag ree ment with defe ndant, co n s t ructed a cellular /radio tower (the tower) on the lease d parc el. ¶ 3 On November 5, 1986, a “F irst Amendment to L ease Ag ree ment” was enter ed betwee n the parties and rec orded in the county rec order ’s office

. The amendment provided that Waterway

Wa te rwa y is a comm

uni cat ion s c om

pan y. 1

-2-will pay “ad valore m taxes levied and attributable to any improvem en t s and fac iliti es

installed on the premises by [W ater way ].” ¶ 4 Sometime prior to Dec ember 1, 2002, the county assessor assig ned the tower its own sepa rate tax identification number, 09–06–000–060 (PI N 09–06–000–060). The property rec ord for PI N 09–06–000–060 contains the leg al descr iption of the improvements on the lease d parc el and the tower assessments. The re cord doe s not contain any land assessment. Dale Bolton, who is the cu rr en t co u nty assessor and has been since Dec ember 1, 2002, testified that he does not know why the tower and the fa rm l an d were assig ned two differ ent tax parc el identification numbers. All tax bills for the tower, howeve r, wer e sent to Waterwa y

. The bills subsequently

became delinquent and the tower w as sold to plaintiff, Dennis B allinge r, at a tax s ale. ¶ 5 I t i s u n d i s p u t ed t h at d ef en d an t p ai d al l t ax es ass es s ed an d l ev i ed o n P I N 09–06–000–062—the farmland, which i n cludes the lease d parc el. Those taxes wer e never delinquent. Def

endant testified, howeve r, that it never rec eived a tax bill for the tower or had any knowledg e that the taxes wer e delinquent a nd subject to a tax sale. ¶ 6 At the tax sale, plaintiff purcha sed “Ta x Sale Certificate No. 04 0 0 7 6 ” (the tax certificate ) The tax certificate states t h e l egal description of the proper ty as: “09–06–000–060: I MPROVEMENTS ON TOWER S I TE; PART E 1/2 NE PI L OT GROVE 6–6.” ¶ 7 On J une 19, 2008, plaintiff fil ed a petition for tax deed. The petition soug ht a tax deed for
not only the tower, but also the lease d parc el on which the tower was located. A “Ta ke Notice” was persona lly serve d on defe ndant. Def endant s u bsequently filed a “Motion to Deny I ssuance of Tax Dee d, or in the alt er n ative, Clarifica tion of what Tax Buy er will

rec eive.” The motion alleg ed that plaintiff should only rec eive, if he obtains a tax deed, the tower, and not the lease d parc el. The moti o n also alleg ed that defe ndant had paid all the property taxes on the farmland, which includes the lease d parc el, but admitted that it did not pay the taxes on the improvements locate d on the lease d parc el. ¶ 8 Plaintiff filed a motion to dismiss defe ndant’s motion for clarification. Plaintiff alleg ed that his ta x sale c ertificate entitled him to both the tower and the lease d parc el. Plaintiff a rg ued that I llinois law does not allow persona l property taxes to be imposed or assessed on persona l property

. Specifica lly
, plaintiff contende d that if he is only allowed to obtain the tower, and
not the lease d parc el, then the county assessor is illega lly as s es sing property taxes on persona l property

. ¶ 9 Upon hearing arg ument, the circ uit court held that plaintiff will r ece ive rig hts in the tower
, but not the lease d parc el. Plaintiff appea led, but we dismiss ed the appea l on the g rounds that the circ uit court’s orde r wa s not final and appe alable. ¶ 10 On re mand, the cir cuit court he ard de fendant’s motion to ex tend the re demption period on the lease d parc el, if need be, and also plaintiff’s application for an order direc ting the county cler k to issue a tax deed as to the lease d parc el. Ultimately
, the court enter ed an order (1) deny ing defe ndant’s motion to extend the rede mption period, (2) denying plaintiff’s application for a tax dee d as to the lease d parc el, and (3) direc ting issuance of a tax deed in favor of plaintiff for

the tower . Plaintiff now appea ls from this order.

-3-¶ 11 ANAL YSI S

¶ 12 Plaintiff c ontends that the circ uit court err ed in deny ing his a pplication for a tax dee d as to the lease d parc el. Plaintiff arg ues that his certificate of purcha se entitles him to the entry of

a tax deed for both the tower and the lease d parc el. I n response , defe ndant calls our attention
to the fac t that the fa rm l an d i n cl udes the lease d parc el and it has “alwa y s paid all taxes assessed on the [farm]land.” Be cause we hold the circ uit court lacke d jurisdiction to awa rd plaintiff a t ax deed for the lease d parc el, we find no err or in the denial of plaintiff’s application for

a tax deed. ¶ 13 “Ta x deed proce eding s are in rem in nature , rathe r than in personam , and a [circuit] court acquir es jurisdiction afte r the county collector makes his application for judgme nt and order of sale.” In re Application of the County Treasurer & ex officio Cou n t y C o l l ector ( Hammond)
, 386 I ll. App. 3d 906, 909 (2008). The co u nty collector ’s application for a judgme nt and order of sale is a specia l statutory proce eding cre ated by the Property Tax Code (the Code) (35 I L CS 200/1–1 et s eq. (West 2008)). In re Application of County Collector
, 48 I ll. App. 3d 572, 583 (1977). L ikewise, the circ uit co u rt fu n ct ions pursuant to specia l statutory jurisdiction g rante d by the Code. County Collector
, 48 I ll. App. 3d at 583. I n order for the c ourt to invoke this statutory jurisdiction, the tax es on the subjec t property must be delinquent. Novak v. Smith
, 197 I ll. App. 3d 390, 395-96 (1990); County Collector
, 48 I ll. App. 3d at 583-84; Stein v. Olsen
, 26 I ll. App. 3d 858, 861 (1975). Thus, wher e the taxes on the property have been paid, the court does not acquir e jurisdiction over the property , and a judgme nt and order of sale a g ainst that property is void. S.I. Sec urities v. Powl ess , 403 I ll. App. 3d 426, 443 (2010); Hammond
, 386 I ll. App. 3d at 909; In re Application of the Cook County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for Nonpayment of Ge neral Taxes for the Y ear 1985 & Petition for Tax Dee d of Barnard , 228 I ll. App. 3d 719, 731 (1991); Novak
, 197 I ll. App. 3d at 396; County Collector
, 48 I ll. App. 3d at 584. Section 22–75(b) of the Code incorporates this principle and provides as follows:

“(b) Any order for the sale of property for delinquent taxes, except as otherwise provided in this Section, s h al l es t o p all parties from raising any objections to the order or t o a tax title b as ed t h er eo n, which ex isted at or befor e the rendition of t he order
, and which could have been prese nted as a defe nse t o t h e application for the order

. The order itself is conclusive evidence o f i t s reg ularity and validity in all collater al proce eding s, exc ept in ca s es w here the tax or special assessments were paid prior to the sale or the property was exempt from gen er al t axes or was not subject to specia l assessment.” (Emphasis added.) 35 I L CS 200/22–75(b) (West 2008). ¶ 14 Her e, it is undisputed that d ef en d an t p aid all taxes assessed and levied on the fa rmland, which includes the l ease d parc el. P laintiff’s pos i t i o n here on appea l simply defie s logic in that it asserts the rig ht to a tax deed for property that has never been subject to any delinquent
taxes. Be cause the farmland was n o t s u b j ec t to any delinquent taxes, we find the circ uit
court lacke d jurisdiction to enter a t ax deed awa rding plaintiff the lease d parc el. See S.I. Securities
, 403 I ll. App. 3d at 443; Hammond
, 386 I ll. App. 3d at 909; In re Application of the Cook County Collector
, 228 I ll. App. 3d at 731; Novak
, 197 I ll. App. 3d at 396; County Collector
, 48 I ll. App. 3d at 584. Acc ording ly
, we find no err or in the circ uit c ourt’s denial

-4-of plaintiff’s a pplication for a

tax deed as to the lea sed par cel. ¶ 15 I n coming to this conclusion, we note that plaintiff, i n an ap p ar en t attempt to support his alleg ed rig ht to a tax deed for the lease d parc el, arg ues that if he is only allowed to obtain the tower, and not the lease d parc el, then the county assessor is illegally assessing property taxes

on persona l property

. Whil e we ag ree with plaintiff’s later assert i o n t h at the county is illega lly assessing property taxes on persona l property , we find that the circ uit court lacke d jurisdiction to direct issuance of a ta x deed in f avor of plaintiff for the tower. ¶ 16 Section 24–5 of the Code pr ovides, in pertinent part: “Ad valorem persona l property taxes shall not be levied on any persona l property having tax situs in this State.” 35 IL CS 200/24–5 (West 2008). “Our courts have define d tang ible persona l property to mean that which ‘may be seen, weig hed, measure d and estimat ed b y t h e phy sical senses and which is capa ble of being possessed.’ “ Archer Daniels Mi d l a n d C o

. v. C ity of Chicago
, 294 I ll. App. 3d 186, 190 (1997), quoting In re Estate of Be rman , 39 I ll. App. 2d 175, 178 (1963). ¶ 17 Her e, the county assessor assig ned the tower its own separ ate tax identification number. The property rec ord for this n umber contains the leg al description of the improvements on the lease d parc el and the tower assessments. The rec ord does not c ontain any land assessment,

nor does it describe any lease hold interest. I nstead, a revie w of the rec ord confirms that it is the tower itself that is the property subject to taxation. Clearly
, the tower constitutes tang ible persona l property , rathe r tha n r e a l property

. Thus, we find the tower was unlawfully assessed. See 35 IL CS 200/ 24–5 (West 2008). ¶ 18 Be cause t h e t o we r was unlawfully assessed, we hold there wer e never any property taxes leg ally due on the pr operty . Consequently , beca use there wer e no leg al prope rty taxes due, there could n ev er be any delinquent t axes. Thus, beca use t he tower was not subject t o any delinquent taxes, we find the circ uit c ourt lacke d jurisdiction to direc t the issuance of a tax d eed in favor of plaintiff for the tower. See S.I. Securities
, 403 I ll. App. 3d at 4 4 3 ; Hammond
, 386 I ll. App. 3d at 909; Cook County Collector
, 228 I ll. App. 3d at 731; Novak
, 197 I ll. App. 3d at 396; County Collector
, 48 I ll. App. 3d at 584. Acc ording ly
, we vacate that portion of the circ uit court’s order direc ting issuance of a tax deed in favor of plaintiff for the tower. See Delgado v. Board of Election Commissioners
, 224 I ll. 2d 481, 486 (2007) (orde r) (courts of revie w have an independe nt duty to vacate void order s and may sua sponte decla re an orde r void). ¶ 19 For the fore g oing rea so n s , we af fi rm t h at portion of the circ uit court’s order deny ing p l ai n t i ff ’s application for a tax deed as to the lease d parc el and vacate that portion of the circ uit court’s orde r direc ting issuanc e of a tax dee d in f avor of plaintiff for the tower. The matter is re manded f

or any further proce eding s nece ssitated by this order. ¶ 20 Affir med in part a nd vacated in part; cause re manded.

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