Tax Protest Suit Against Algonquin Township –  Part 3

More of Tim Dwyer’s tax protest complaint against Algonquin Township:


It is beyond dispute that the Algonquin Township Board adopts two levies: one for the Town Fund, and one for the Road District.

Both of these levies are voted upon by the Township Board alone. Likewise, both of these levies are incorporated into one financial audit, which views the Township as having control over all of the monies within these two funds. See Exhibit C.

The Annual Financial Report treats all of the funds as belonging to, and under the control of, Algonquin Township, as is mandated by the Township Code under the Illinois Compiled Statutes.

The Township has previously maintained that all of its funds are separate taxing entities, and must be addressed individually, although no legal precedent is provided for this novel principle.

Indeed, the Annual Financial Report (“AFR”) treats all of the funds as assets of the Township.

Broken down in its simplest form, the AFR memorializes that the net position of the Township as a whole remains $11,711,225 as of the end of its fiscal year on March 31, 2014. See Exhibit C, page 12.

In the event capital assets were included, the Township’s net position is $17,650,449. See Exhibit A, page 11.

However, the Tax Objectors have specifically excluded any capital assets.

The theory tendered previously in this case by the Township is that the Township and the Road District are separate entities, with separate funds, and therefore the tax objection must list them separately.

There is no basis in law for this position.

As an initial matter, the Township Code mandates that the Township Board shall comply with the Government Account Audit Act, 50 ILCS 310/0.01 et. seq. (The “Act”).

The Act, Section 210/3, mandates that “(t)he audit shall include all the accounts and funds of the governmental unit, including the accounts of any officer…who spends money of the unit”. (Emphasis added).

In other words, each governmental unit shall cause an audit to be performed of all of its accounts.

Here, it is undisputed that the Township caused one audit to be performed.

In the event the argument set forth by the Township at bar had any merit, the Road District and the Township would have independent audits under the Act.

Additionally, the Second District has addressed this issue, and has always found that naming the Township in a lawsuit is the proper methodology.

In Village of Montgomery v. Aurora Township, 387 Ill.App.3d 353 (2nd Dist. 2008), at issue was what governmental body had jurisdiction over a bridge originally built by the Township through its Road District, but not surrounded by two municipalities.

Aurora Township filed a motion to dismiss alleging, inter alia, that the Village of Montgomery’s complaint should be dismissed because the Road District was a separate entity and in charge of all Township roads.

The Township therefore averred that it was incumbent upon the Village of Montgomery to sue the Township Road District since the Highway Code mandated that the Road District mandates Township roads.

Here, the Second District held:

Initially, we address appeal No. 2-07-0632 which the Township contends that the trial court erred in denying its motion to dismiss pursuant to section 2-619(a)(9) of the Procedure Code.

The Township argues that it is not a proper party to this action because it has no statutory power or authority over roads and bridges. See Western Sand & Gravel Co. v. Town of Cornwall, 2 Ill.2d 560, 566, 119 N.E.2d 261 (1954); Wiese, 142 Ill.App.3d at 492, 96 Ill.Dec. 562, 491 N.E.2d 841.

The Township asserts that, under section 6-201.8 of the Illinois Highway Code (the Highway Code) (605 ILCS 5/6-201.8 (West 2006)), only the township highway commissioner has charge of roads and has the duty to repair and maintain them.

An action may be dismissed pursuant to section 2-619(a)(9) (West 2006); Turner v. Fletcher, 302 Ill.App.3d 1051, 2055, 235 Ill.Dec. 959, 706 N.E.2d 514 (1999).

We review de novo the trial court’s ruling on a section 2-619 motion. Porter v. Decatur Memorial Hospital, 227 Ill.2d 343, 352, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008).

We conclude that the Township is a proper party to this action and that the trial court did not err in denying its motion to dismiss.

Although a township highway commissioner has sole statutory authority to repair and improve “the roads of his district” (605 ILCS 5/6-201.8 (West 2006)), the township is nonetheless that owner of the roads within the township’s road system (Hennings v. Centreville Township, 56 Ill.2d 151, 154-55, 306 (N.E.2d 287 (1974)) and must approve the budget presented by the highway commissioner to operate the township’s roads and bridges and must audit the highway commissioner’s accounts (60 ILCS 1/80-15, 80-60 (West 2006)).

As such, the Township was properly named as a defendant to the instant action, which sought a declaration of the “rights, obligations, and liabilities of the parties as they pertain to the [b]ridge.”387 Ill.App.3d at 358-59.

Similar to the Montgomery holding, the Township not only approves (or conceivably, disapproves) the budget of the Road District, but adopts the levy proposed by the Highway Commissioner.

The Road Commissioner, on behalf of the Road District, may recommend a levy amount, but the adoption of what levy, if any, remains entirely within the discretion of the Township Board.

Likewise, as the Montgomery court points out, the Township audits delineates all of the funds as belonging to the Township. See Exhibit C.

Accordingly, the tax objection at bar could not be more clear.

As of the end of the fiscal year, March 31, 2014, Algonquin Township had $11,711,225 in cash, investments and taxes due. (Exhibit A, pages 5 and 12).

Prior to issuing its levies, Algonquin Township had a three-year average expenditure of $4,598,404 according to its own Annual Financial Reports.

Thus, the Township had 2.54 times the funds to address the three-year average expenditures for the ensuing fiscal year. As a result, the Tax Objectors have stated a dispositive case of excess accumulation.

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More tomorrow.


Tax Protest Suit Against Algonquin Township –  Part 3 — 2 Comments

  1. Other Townships should pay attention to taxing while not spending and Trustees should pay attention to line items where the “spend it or lose it” rationale has been applied.

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