In direct contradiction to the recent MetLife case, a different division of the Illinois Appellate Court held that a taxpayer was subject to the double interest amnesty penalty on its increased state tax liability resulting from federal audit changes. Marriott Intern. Inc. v. Hamer, 2012 IL App (1st) 111406 (Ill. App. Ct., 1st Dist., 3rd Div. Aug. 22, 2012). The MetLife case held that such penalties did not apply under nearly identical facts. Met. Life Ins. Co. v. Illinois Dep’t of Revenue, 2012 IL App (1st) 110400, at *1 (Ill. App. Ct. 1st Dist., 1st Div. Mar. 5, 2012).
A 2003 Illinois amnesty program provided amnesty to taxpayers who paid “all taxes due” for eligible tax years by November 2003. A double interest penalty applied for those taxpayers that had a tax liability eligible for amnesty but failed to pay it. Two months after the amnesty period ended, the Internal Revenue Service began an audit of Marriott that ultimately resulted in a 2007 revenue agent report (RAR), increasing Marriott’s federal taxable income. Marriott timely reported the federal RAR changes to Illinois and paid the resulting tax liability.
Despite the fact that Marriott was unaware that it owed additional taxes—and was not even under audit—during the amnesty period, the court ruled that Marriott did not pay “all taxes due” during the amnesty period and was therefore liable for the double interest penalty. According to the court, the statutory phrase “all taxes due” means “those taxes that are due on the date the tax return for that year is to be filed, irrespective of whether the Department or the taxpayer is aware of their existence and irrespective of whether the Department has issued a formal assessment.” The court disagreed with the MetLife court’s reasoning and instead adopted the reasoning of the sole dissenting judge in MetLife, Justice Hoffman.
With the split in authority between divisions of the Appellate Court created by MetLife and Marriott, the issue appears ripe for review by the Illinois Supreme Court. Absent the filing of a petition for reconsideration with the Appellate Court, a petition for leave to appeal to the Illinois Supreme Court seeking discretionary review would need to be filed by September 26, 2012.