State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0841
Case Date: 09/11/1997
NO. 4-96-0841
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: ESTATE OF ALEX VAN PRAAG, ) Appeal from
Deceased. ) Circuit Court of
SAFECO INSURANCE COMPANY OF AMERICA, ) Macon County
Petitioner-Appellant, ) No. 79P48
v. )
GREGORY S. VAN PRAAG, Special )
Administrator of the Estate of Alex )
Van Praag and FIRST NATIONAL BANK OF ) Honorable
DECATUR, ) Jerry L. Patton,
Respondents-Appellees. ) Judge Presiding.
JUSTICE GREEN delivered the opinion of the court:
Alex Van Praag died in 1979 and proceedings for the
probate of his estate in the circuit court of Macon County
ensued. In 1981, the decedent's son, James Van Praag, became
coadministrator with will annexed and later became the sole
person serving in that capacity. The instant dispute arises
because in 1988, the Internal Revenue Service (IRS) levied upon
the estate account at the Soy Capital Bank of Decatur (Soy Bank)
in the sum of $83,676, leaving the estate insolvent. The princi-
pal issue here is whether James was liable to the estate for its
loss arising from that levy. The circuit court held he was. We
conclude the court could properly have made such a determination
and affirm.
On August 10, 1993, a hearing was held on four issues.
The First National Bank of Decatur (FNBD), a prior personal
representative of the estate, had been awarded a fee of $25,000,
and it requested that fee be paid and the estate closed. The
estate had made a charge of malpractice against a former attorney
for the estate and James sought leave to settle that matter.
Questions of fees for James and his attorney were also at issue.
On November 22, 1993, the court entered an order authorizing
settlement of the malpractice case and ordered the closing of the
estate. Fees were denied for James and his attorney. The court
also ordered James was not allowed to take credit for or deduct
from the estate funds the $83,000 levied by the IRS but was to
pay all creditors, legatees, and beneficiaries of the estate as
if that sum had not been levied. The order required the estate
to be closed by December 30, 1993, and a final report be filed.
Safeco Insurance Company (Safeco), appearing as surety
on the fiduciary bond of James, moved to reconsider the November
22, 1993, order. That motion was apparently denied in regard to
the issues here by an order of December 16, 1993, which granted
certain relief on matters covered by the November 22 order that
are not material here. The December 16 order impliedly denied
any other relief from the November 22 order. Neither James nor
Safeco filed a final report. Accordingly, on April 16, 1996, the
court entered its own final report. 755 ILCS 5/24-15 (West
1996). That document again directed James to pay to Gregory Van
Praag, who had been appointed special administrator, the $83,000,
issued an attachment against James (755 ILCS 5/24-16(c) (West
1996)), and directed the special administrator (Gregory) to
proceed against Safeco on James' bond.
On August 22, 1996, the circuit court entered an order
approving its final account. On October 16, 1996, the court
entered a personal judgment against James and in favor of the
estate for the sum of $83,000 purportedly nunc pro tunc September
23, 1996. Safeco has filed a notice of appeal and contends no
basis was shown for holding James responsible for the loss
resulting from the IRS levy.
Gregory maintains Safeco's contention that James was
not responsible for the loss from the IRS levy is barred because
of the res judicata effect of the November 22, 1993, order, which
was not appealed. He contends that order was final as to the
rights of James in regard to the loss from the IRS levy under
Supreme Court Rule 304(b) (155 Ill. 2d R. 304(b)). This conten-
tion involves a very complicated analysis of the appealability of
orders in civil cases that do not end the case. As we conclude
the judgment on appeal can be upheld on the merits, we choose not
to consider further the res judicata contention.
Most of the evidence concerning the liability of James
for the IRS levy came from the August 10, 1993, hearing. Michael
Bitner, an agent for the IRS, was called by FNBD and testified as
follows: (1) in July 1989, he was requested by the IRS to
investigate whether the estate bank account at Soy Bank could be
levied upon to recover a 1978 tax obligation; (2) he identified
an internal IRS memorandum requesting his involvement in the
collection procedure, and the memorandum indicated James and his
attorney preferred to have the account levied upon rather than
for the IRS to file a claim in the probate proceeding; (3) he
identified an IRS document that showed Alex and Bernice Van
Praag's (Van Praags) initial 1978 tax assessment and a second
1988 assessment showing a $31,911 deficiency; and (4) he sent a
letter to the judge then presiding over Alex's estate relating
that the IRS wished to levy the estate bank account rather than
file a claim in the probate proceeding. The evidence indicated
the IRS had a well-meaning practice, of dubious propriety, of
contacting judges in charge of estates to see if they objected to
a levy against the assets of an estate before making such a levy.
The evidence indicated the judge then presiding over the estate
informed Bitner he had no objection.
The record was undisputed that the IRS then made such a
levy upon the estate bank account at Soy Bank for what the IRS
claimed to be unpaid taxes for 1978 owed jointly by the Van
Praags. However, on cross-examination, Bitner stated he was
unable to find the IRS records indicating why the 1988 assessment
was made. Bitner admitted the record indicated that in November
1982, a refund was made to the Van Praags for overpayment of
their 1978 taxes in the sum of $31,911. That sum was also the
exact amount of the claimed deficiency for the year 1988. The
amount of this claim was increased to $83,676 by charges for
interest, penalties, and costs. James admitted that his mother,
Bernice, received all of the alleged overpayment of $31,911 and
none of it was ever placed in the estate. Bitner also admitted
the record indicated the Van Praags had paid their 1978 taxes in
full, and the record gave no indication why an assessment was
made in 1988.
The record also showed the IRS had made numerous
attempts to collect the 1988 assessment from Bernice and she had
refused to pay. Bitner testified the use of a levy to collect
taxes from an estate was not the usual procedure, but James and
James Nangle, an attorney representing James, had indicated to
him they both thought the levy process would be a swifter and
surer way of getting paid than would the filing of a claim in the
estate.
Use of the levy procedure gave considerable leverage to
the IRS and made things more difficult for the creditors, lega-
tees, and beneficiaries of Alex's estate. Federal statutes
require that when the estate of a deceased debtor is insufficient
to pay all debts of the decedent, the claim of the United States
"shall be paid first." 31 U.S.C. 3713(a)(1)(B) (1988). The
decisions of an Illinois appellate court and one of a United
States district court have held the foregoing priority is subject
to funeral expenses and costs of administration. Harrison v.
Deutsch, 294 Ill. App. 8, 11, 13 N.E.2d 511, 512 (1938); United
States v. Weisburn, 48 F. Supp. 393, 397 (E.D. Pa. 1943).
However, this exception is not certain, and here, James did
nothing to prevent the IRS from pushing its claim for taxes ahead
of FNBD's claim for fees for serving as personal representative,
which was a cost of administration.
Under section 18-10 of the Probate Act of 1975, a claim
of the United States government is stated to be a third-class
claim inferior to not only burial expenses and expenses of
administration, but also inferior to a surviving spouse's award.
Ill. Rev. Stat. 1987, ch. 110
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies