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Illinois Supreme Court leaves sales tax loophole open
Court rules new regulations will be needed to curb tax avoidance

Friday, November 22, 2013
Chicago Tribune
by Ameet Sachdev

The Illinois Supreme Court delivered a mixed ruling Thursday on the complicated issue of how local governments collect sales taxes.

The court found that a petroleum marketer once based in Cook County correctly interpreted state regulations when it opened a sales office in Putnam County to avoid paying higher sales tax in Cook County.

But the court, in an unanimous opinion, also ruled that the regulation erroneously constricts the scope of the taxation -- meaning that the Illinois Department of Revenue will have to come up with new regulations that could potentially close a loophole exploited by dozens of businesses. 

The decision was highly anticipated by both business and government.

Saddled with some of the nation's highest sales taxes, some Chicago area businesses have found a creative way to avoid them: They route purchases through offices in downstate counties with lower sales taxes. These companies, ranging from catalog houses and oil companies to computer purveyors, shift the official point of purchase from the Chicago area to such locations as Kankakee and Channahon in order to escape the high sales-tax rates in Cook and some collar counties.

The giant loophole exists because Illinois is one of the few states in which sales tax is applied where a purchase is accepted rather than where the product is delivered.

One of the biggest critics of the tax-avoidance tactics is the Regional Transportation Authority, which oversees the CTA, Metra and Pace. The RTA, which relies on sales tax for half of its budget, argues that companies that maintain their businesses in or around Cook County shouldn’t be able to opt out of paying taxes by establishing a token presence elsewhere. The point of taxes, after all, is to get people to pay for the services where they receive them. That includes, for example, the trains and buses their employees ride to work.

Just how much money is at stake is hard to track. In one specific case, the RTA alleges that United and American airlines, which set up offices in DeKalb County to buy jet fuel, deprived public transit agencies of nearly $300 million during the past seven years.

Hartney Fuel Oil Co. went to court to prove that their tax scheme was legal. Hartney is a fuel marketing company that purchases fuel oil from large fuel supplies and sells it to customers such as railroads, trucking companies and gas stations. Its headquarters were in west suburban Forest View, but starting in 1985 it moved its sales operations out of Cook County to Elmhurst and other towns with lower tax rates.

The company has said in court papers that it looked to minimize its sales tax to offer competitive prices to customers.

In 2008, the Illinois Department of Revenue challenged Hartney's claim that its sales office was in Mark, a tiny village in Putnam County, about two hours southwest of Chicago. Starting in 2003, Hartney had a phone and space rented in the office of Putnam County Painting Co., enabling Hartney to claim it as the point of sale for its fuel business, records show.

Putnam County has no local sales tax so its tax rate is the same as the state’s, 6.25 percent. By comparison, Chicago’s tax rate is 9.25 percent and it was higher a few years ago.

In the Revenue Department's opinion, Hartney's business actually took place at its longtime office in Forest View, where orders were processed and fuel shipped by a related company. The state said Hartney owed $23 million in back taxes, interest and penalties.

A Putnam County judge ruled in favor of Hartney, and an appeals court upheld the ruling. The state, the RTA, Cook County and Forest View appealed to the state Supreme Court.

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