Monday, December 29, 2014

“Mailbox Rule” Does Not Apply to Tax Appeals to Kane County Board of Review Sent by Third-Party Commercial Carrier Rather Than U.S. Mail

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP

In BLTREJV3Chicago, LLC v. Kane County Board of Review, 2014 IL App (2d) 140164, the Illinois Appellate Court, Second District, confronted the issue of whether tax appeals for 72 separate properties that were sent to the Kane County Board of Review (“Board”) on the due date for filing an appeal of a property tax assessment were considered timely when they were deposited with FedEx (a third-party commercial carrier) rather than the United States mail. Id. ¶ 11. Notwithstanding the 2013 amendments to Illinois Supreme Court Rules 11 and 12 (eff. Jan. 1, 2013) allowing the use of third-party commercial carriers as an acceptable method for the service of documents pursuant to the “mailbox rule,” the court ruled that the Supreme Court Rules did not control over the Board’s own rules on filing appeals, which state that only documents transmitted by United States mail will receive the benefit of the “mailbox rule.” Id. ¶¶ 13-15. Accordingly, the court held that the tax appeals were untimely because they were sent via FedEx, rather than United States mail.

In explaining its reasoning, the reviewing court began its analysis with an examination of Section 16-55 of the Illinois Property Tax Code (“Tax Code”), which provides that “[a] complaint to affect the assessment for the current year shall be filed on or before 30 calendar days after the date of publication of the assessment list * * *.” Id. ¶ 12 (citing 35 ILCS 200/16-55 (West 2012)). Section 9-5 of the Tax Code provides that each county assessor, board of appeals, and board of review “shall make and publish reasonable rules for the guidance of persons doing business with them and for the orderly dispatch of business.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 12 (quoting 35 ILCS 200/9-5 (West 2012)). Pursuant to this provision, the Board adopted and published rules of procedure that incorporated the Statute on Statutes’ “mailbox rule,” which provides that a document is deemed “filed” as of the date of mailing via United States mail. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 12 (citing 5 ILCS 70/1.25 (West 2012)). The Board’s rules further state that the provision that “communications transmitted through the United States mail shall be deemed filed with or received by the Board on the date shown by the post office cancellation mark stamped * * * does not apply to communications delivered by Federal Express, UPS, DHL, or any other commercial or non-commercial delivery entity.” BLTREJV3 Chicago, 2014 IL App (2d) 140164 ,¶ 13, (citing Kane County Board of Review 2014 Rules and Procedures, section R.A.5.a.; (last visited August 27, 2014)). The Board’s rules also reference the Second District Appellate Court’s opinion in Baca v. Trejo, 388 Ill. App. 3d 193, 198 (2009), where the court decided that only the use of the United States mail triggers the mailbox rule. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 13.

Rejecting Petitioners’ argument that Illinois Supreme Court Rules 11 and 12 supersede the Board’s rules on filing appeals because, inter alia, they were amended subsequent to Baca, the reviewing court stated: “the statutory language itself gives the best indication of legislative intent. Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions.” Id. ¶ 14 (quoting Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 151-52 (1997)). Under the rule of statutory construction expressio unius est exclusio alterius, the lack of any negative words of limitation is of no moment because “an explicit statement of such intent is unnecessary.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 14 (citing Aldridge, 179 Ill. 2d at 152). Rather, “all omissions should be understood as exclusions.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 14.

The court also rejected Petitioners’ claim that because Illinois Supreme Court Rules 11 and 12 “apply to the practice of law,” they must apply to the tax appeals. Id. ¶ 15. “[S]ervice is not equivalent to filing,” the court stated. Id. (citing Shatku v. Wal-Mart Stores, Inc., 2013 IL App (2d) 120412, ¶ 11). In reiterating its conclusion that Illinois Supreme Court Rules 11 and 12 do not control the Board’s rule-making powers, the court explained that the Board’s authority to make reasonable rules does not require it to make rules that are identical to another particular set of rules. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 15. The court further stated: “Petitioners employ faulty logic in suggesting that the Board is usurping the power of the supreme court by adopting its own rules.” Id. ¶¶ 15-16. Rather, the court explained, “[b]y establishing these rules, the Board is complying with the requirements of the Tax Code.” Id. ¶ 16 (citing People ex rel. Courshon v. Hirschfield, 43 Ill. App. 3d 432, 435 (1976)).

“[U]ntil the board amends its rules to apply the ‘mailbox rule’ to third-party commercial carriers, appeals must be sent by the United States mail to benefit from the rule.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 19. Appeals sent by any other means must be actually received on or before the due date to be considered timely filed. Id. 

Recommended Citation: Katherine A. Grosh, “Mailbox Rule” Does Not Apply to Tax Appeals to Kane County Board of Review Sent by Third-Party Commercial Carrier Rather Than U.S. MailThe Brief, (December 29, 2014),

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.