ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

In re APPLICATION OF THE COUNTY COLLECTOR FOR

JUDGMENT AND ORDER OF SALE AGAINST LAND AND LOTS

RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL

TAXES FOR THE YEAR 2004 and PETITION OF DENNIS D.

BALLINGER FOR A TAX DEED.

 District & No. Third District

Docket No. 3–10–0181

Filed May 24, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where the owner of farmland leased a portion of the land to taxpayer for

a communications tower and the tax assessor assigned the tower its own

separate tax identification number and assessment but did not make a

separate assessment of the land, the trial court erred when, after the real

estate taxes became delinquent and were sold to plaintiff at a tax sale, the

trial granted plaintiff”s request for a tax deed for the tower and the leased

parcel on which the tower was erected, since the owner and lessor of the

land paid all of the taxes on the land, the land was never subject to any

delinquent taxes and the trial court had no jurisdiction to award plaintiff

a tax deed for the land containing the tower, and, furthermore, the trial

court had no jurisdiction to direct the issuance of a tax deed for the tower,

which was tangible personal property, not real property, and was

unlawfully assessed and could not be subject to any delinquent taxes.
Decision Under 

Review

Appeal from the Circuit Court of Hancock County, No. 08–TX–6; the

Hon. David F. Stoverink, Judge, presiding.

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

Counsel on

Appeal

Mark S. Morthland (argued), of Moore, Susler, McNutt & Wrigley, LLC,

of Decatur, for appellant.

Rodney G. Clark (argued), of Capps, Ancelet, Clark & Rasmussen, of

Carthage, for appellee Pettit Land, L.L.C.

Jim Drozdz, State’s Attorney, of Carthage (Brian D. Hunter, Assistant

State’s Attorney, of counsel), for appellee Hancock County Treasurer.

Panel JUSTICE McDADE delivered the judgment of the court, with opinion. 

Presiding Justice Carter and Justice O’Brien concurred in the judgment

and opinion.

OPINION

¶ 1 Defendant, Pettit Land, L.L.C., is the owner of a piece of real property, consisting mainly of

farmland (the farmland), located in the county. The farmland bears the tax parcel

identification number 09–06–000–062 (PIN 09–06–000–062).

¶ 2 On February 7, 1985, defendant entered into a lease agreement with Waterway

Communications System, Inc. (Waterway), for a parcel of real property (the leased parcel) 1

located on the farmland. The term of the lease was for 25 years with an option for Waterway

to extend the lease an additional 25 years. The lease was recorded in the county recorder’s

office. While the record is unclear as to the exact date, Waterway, at some point after

entering into the lease agreement with defendant, constructed a cellular/radio tower (the

tower) on the leased parcel.

¶ 3 On November 5, 1986, a “First Amendment to Lease Agreement” was entered between the

parties and recorded in the countyrecorder’s office. The amendment provided that Waterway

Waterway is a communications company. 1

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will pay “ad valorem taxes levied and attributable to any improvements and facilities

installed on the premises by [Waterway].”

¶ 4 Sometime prior to December 1, 2002, the countyassessor assigned the tower its own separate

tax identification number, 09–06–000–060 (PIN 09–06–000–060). The property record for

PIN 09–06–000–060 contains the legal description of the improvements on the leased parcel

and the tower assessments. The record does not contain any land assessment. Dale Bolton,

who is the current county assessor and has been since December 1, 2002, testified that he

does not know why the tower and the farmland were assigned two different tax parcel

identification numbers. All tax bills for the tower, however, were sent to Waterway. The bills

subsequently became delinquent and the tower was sold to plaintiff, Dennis Ballinger, at a

tax sale.

¶ 5 It is undisputed that defendant paid all taxes assessed and levied on PIN

09–06–000–062—the farmland, which includes the leased parcel. Those taxes were never

delinquent. Defendant testified, however, that it neverreceived a tax bill for the tower or had

any knowledge that the taxes were delinquent and subject to a tax sale.

¶ 6 At the tax sale, plaintiff purchased “Tax Sale Certificate No. 040076” (the tax certificate)

The tax certificate states the legal description of the property as: “09–06–000–060:

IMPROVEMENTS ON TOWER SITE; PART E 1/2 NE PILOT GROVE 6–6.”

¶ 7 On June 19, 2008, plaintiff filed a petition for tax deed. The petition sought a tax deed for

not only the tower, but also the leased parcel on which the tower was located. A “Take

Notice” was personally served on defendant. Defendant subsequently filed a “Motion to

Deny Issuance of Tax Deed, or in the alternative, Clarification of what Tax Buyer will

receive.” The motion alleged that plaintiff should only receive, if he obtains a tax deed, the

tower, and not the leased parcel. The motion also alleged that defendant had paid all the

property taxes on the farmland, which includes the leased parcel, but admitted that it did not

pay the taxes on the improvements located on the leased parcel.

¶ 8 Plaintiff filed a motion to dismiss defendant’s motion for clarification. Plaintiff alleged that

his tax sale certificate entitled him to both the tower and the leased parcel. Plaintiff argued

that Illinoislaw does not allow personal property taxes to be imposed or assessed on personal

property. Specifically, plaintiff contended that if he is only allowed to obtain the tower, and

not the leased parcel, then the county assessor is illegally assessing property taxes on

personal property.

¶ 9 Upon hearing argument, the circuit court held that plaintiff will receive rights in the tower,

but not the leased parcel. Plaintiff appealed, but we dismissed the appeal on the grounds that

the circuit court’s order was not final and appealable.

¶ 10 On remand, the circuit court heard defendant’s motion to extend the redemption period on

the leased parcel, if need be, and also plaintiff’s application for an order directing the county

clerk to issue a tax deed as to the leased parcel. Ultimately, the court entered an order (1)

denying defendant’s motion to extend the redemption period, (2) denying plaintiff’s

application for a tax deed as to the leased parcel, and (3) directing issuance of a tax deed in

favor of plaintiff for the tower. Plaintiff now appeals from this order.

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¶ 11 ANALYSIS

¶ 12 Plaintiff contends that the circuit court erred in denying his application for a tax deed as to

the leased parcel. Plaintiff argues that his certificate of purchase entitles him to the entry of

a tax deed for both the tower and the leased parcel. In response, defendant calls our attention

to the fact that the farmland includes the leased parcel and it has “always paid all taxes

assessed on the [farm]land.” Because we hold the circuit court lacked jurisdiction to award

plaintiff a tax deed for the leased parcel, we find no error in the denial of plaintiff’s

application for a tax deed.

¶ 13 “Tax deed proceedings are in rem in nature, rather than in personam, and a [circuit] court

acquires jurisdiction after the county collector makes his application for judgment and order

of sale.” In re Application of the County Treasurer & ex officio County Collector

(Hammond), 386 Ill. App. 3d 906, 909 (2008). The county collector’s application for a

judgment and order of sale is a special statutory proceeding created bythe PropertyTax Code

(the Code) (35 ILCS 200/1–1 et seq. (West 2008)). In re Application of County Collector,

48 Ill. App. 3d 572, 583 (1977). Likewise, the circuit court functions pursuant to special

statutory jurisdiction granted by the Code. County Collector, 48 Ill. App. 3d at 583. In order

for the court to invoke this statutory jurisdiction, the taxes on the subject property must be

delinquent. Novak v. Smith, 197 Ill. App. 3d 390, 395-96 (1990); County Collector, 48 Ill.

App. 3d at 583-84; Stein v. Olsen, 26 Ill. App. 3d 858, 861 (1975). Thus, where the taxes on

the property have been paid, the court does not acquire jurisdiction over the property, and a

judgment and order of sale against that property is void. S.I. Securities v. Powless, 403 Ill.

App. 3d 426, 443 (2010); Hammond, 386 Ill. App. 3d at 909; In re Application of the Cook

County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for

Nonpayment of General Taxes for the Year 1985 & Petition for Tax Deed of Barnard, 228

Ill. App. 3d 719, 731 (1991); Novak, 197 Ill. App. 3d at 396; County Collector, 48 Ill. App.

3d at 584. Section 22–75(b) of the Code incorporates this principle and provides as follows:

“(b) Any order for the sale of property for delinquent taxes, except as otherwise

provided in this Section, shall estop all parties from raising any objections to the

order or to a tax title based thereon, which existed at or before the rendition of the

order, and which could have been presented as a defense to the application for the

order. The order itself is conclusive evidence of its regularity and validity in all

collateral proceedings, except in cases where the tax or special assessments were

paid prior to the sale or the property was exempt from general taxes or was not

subject to special assessment.” (Emphasis added.) 35 ILCS 200/22–75(b) (West

2008).

¶ 14 Here, it is undisputed that defendant paid all taxes assessed and levied on the farmland,

which includes the leased parcel. Plaintiff’s position here on appeal simply defies logic in

that it asserts the right to a tax deed for property that has never been subject to any delinquent

taxes. Because the farmland was not subject to any delinquent taxes, we find the circuit

court lacked jurisdiction to enter a tax deed awarding plaintiff the leased parcel. See S.I.

Securities, 403 Ill. App. 3d at 443; Hammond, 386 Ill. App. 3d at 909; In re Application of

the Cook County Collector, 228 Ill. App. 3d at 731; Novak, 197 Ill. App. 3d at 396; County

Collector, 48 Ill. App. 3d at 584. Accordingly, we find no error in the circuit court’s denial

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of plaintiff’s application for a tax deed as to the leased parcel.

¶ 15 In coming to this conclusion, we note that plaintiff, in an apparent attempt to support his

alleged right to a tax deed for the leased parcel, argues that if he is only allowed to obtain the

tower, and not the leased parcel, then the county assessor is illegally assessing property taxes

on personal property. While we agree with plaintiff’s later assertion that the county is

illegally assessing property taxes on personal property, we find that the circuit court lacked

jurisdiction to direct issuance of a tax deed in favor of plaintiff for the tower.

¶ 16 Section 24–5 of the Code provides, in pertinent part: “Ad valorem personal property taxes

shall not be levied on any personal property having tax situs in this State.” 35 ILCS 200/24–5

(West 2008). “Our courts have defined tangible personal property to mean that which ‘may

be seen, weighed, measured and estimated by the physical senses and which is capable of

being possessed.’ “ Archer Daniels Midland Co. v. City of Chicago, 294 Ill. App. 3d 186,

190 (1997), quoting In re Estate of Berman, 39 Ill. App. 2d 175, 178 (1963). 

¶ 17 Here, the county assessor assigned the tower its own separate tax identification number. The

property record for this number contains the legal description of the improvements on the

leased parcel and the tower assessments. The record does not contain any land assessment,

nor does it describe any leasehold interest. Instead, a review of the record confirms that it is

the tower itself that is the property subject to taxation. Clearly, the tower constitutes tangible

personal property, rather than real property. Thus, we find the tower was unlawfullyassessed.

See 35 ILCS 200/24–5 (West 2008).

¶ 18 Because the tower was unlawfully assessed, we hold there were never any property taxes

legally due on the property. Consequently, because there were no legal property taxes due,

there could never be any delinquent taxes. Thus, because the tower was not subject to any

delinquent taxes, we find the circuit court lacked jurisdiction to direct the issuance of a tax

deed in favor of plaintiff for the tower. See S.I. Securities, 403 Ill. App. 3d at 443;

Hammond, 386 Ill. App. 3d at 909; Cook County Collector, 228 Ill. App. 3d at 731; Novak,

197 Ill. App. 3d at 396; County Collector, 48 Ill. App. 3d at 584. Accordingly, we vacate that

portion of the circuit court’s order directing issuance of a tax deed in favor of plaintiff for the

tower. See Delgado v. Board of Election Commissioners, 224 Ill. 2d 481, 486 (2007) (order)

(courts of review have an independent duty to vacate void orders and may sua sponte declare

an order void).

¶ 19 For the foregoing reasons, we affirm that portion of the circuit court’s order denying

plaintiff’s application for a tax deed as to the leased parcel and vacate that portion of the

circuit court’s order directing issuance of a tax deed in favor of plaintiff for the tower. The

matter is remanded for any further proceedings necessitated by this order.

¶ 20 Affirmed in part and vacated in part; cause remanded.

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