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Controversial county tax suspended

Thursday, July 25, 2013
Crain's Chicago Business
by Paul Merrion

A controversial new Cook County tax on non-titled goods purchased outside the county has been put on hold.

The Chicagoland Chamber of Commerce and two law firms that sued the county won a preliminary injunction today against enforcement of the tax.

The tax was meant to help close a budget gap as well as discourage county taxpayers from buying goods outside Cook County, where sales taxes are lower. But it imposed a heavy tax on big buyers of commodities, such as airlines or construction firms, or firms that buy expensive software.

Although state law allows home rule counties to impose so-called use taxes on titled property such as automobiles purchased elsewhere and brought into the county, extending that authority to non-titled property is not spelled out in the law. The law was enacted last year but the county didn't start collecting it until May.

The chamber and two law firms, Reed Smith LLP and Horwood Marcus & Berk, argued that Cook County did not have the authority to impose such a tax under state law and that it violates both the U.S. and Illinois constitutions.

A preliminary injunction is considered to be an unusual remedy in a tax case but it indicates that Cook County Circuit Court Judge Lopez Cepero found that not only was the county highly likely to lose after a full trial but that the Chicago business community was facing irreparable harm as long as the tax stayed in effect.

"The chamber is happy to see this resolved," said James Kane, president of the chamber's tax forum and managing director of True Partners Consulting LLC, a tax-advisory firm in Chicago. Based on the amount of time spent on the irreparable-harm argument at the hearing, "it was an important factor in the judge's decision."

The chamber joined the case several weeks after the two law firms each sued separately on its own behalf as taxpayers. The law firms couldn't argue irreparable harm because one had paid only about $100 in use taxes and the other took the position that it didn't have to register with the county or file tax returns.

The chamber joined the case out of concern that any ruling might apply only to the two law firms rather than the entire business community.

"I'm glad the court was able to see the possibility of irreparable damage to many taxpayers," said Michael Wynne, a partner at Reed Smith who also represented the chamber.

While the county is expected to file a motion for reconsideration, the decision means that companies don't have to file monthly use tax returns and the county is probably looking at an $11.7 million loss of revenue that the tax was estimated to raise in the current fiscal year.

"Cook County notified the court that it would address the additional concerns via a formal motion to reconsider the ruling on the preliminary injunction," a county spokeswoman said in an email. "The court has set a briefing schedule and the matter is set for a hearing on Sept. 10, 2013. We look forward to the opportunity to further brief these issues to the circuit court in a timely manner."

In response to lawsuits challenging the constitutionality of the tax, Cook County commissioners reduced it to 0.75 percent from 1.25 percent, making it equal to the county sales tax. Imposing a higher tax on goods bought outside the county amounted to discrimination against interstate commerce, the plaintiffs argued. Before that change, the tax was expected to bring in $25.6 million in new revenue.

"We are hopeful the county will weigh alternatives other than continuing its efforts to resuscitate the personal property use tax, and will fairly and promptly honor refund claims of taxpayers who bore the burden of this illegal tax," Mr. Wynne added.

One issue that Judge Cepero hasn't ruled on yet is whether refunds will be issued automatically to taxpayers who did not pay under protest, or whether they will have to go to court to collect.

"I remain optimistic people will get their money back, but there is no guarantee," said Jordan Goodman, co-chair of the state and local tax group at Horwood Marcus & Berk.

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