Wickman v. Illinois Property Tax Appeal Board

No. 2--08--0129 Filed: 12-19-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

DONALD WICKMAN, ) On Petition for Administrative Review from

) the Illinois Property Tax Appeal Board.

Petitioner, )

)

v. ) PTAB Case Nos. 06--01972.001--C--3

) through

) 06--01972.015--C--3

)

ILLINOIS PROPERTY TAX APPEAL )

BOARD and THE KANE COUNTY )

BOARD OF REVIEW, )

)

Respondents. )

_________________________________________________________________________________

JUSTICE SCHOSTOK delivered the opinion of the court:

Petitioner, Donald Wickman, the owner of various parcels of commercial real estate, seeks

review of the decision of the Illinois Property Tax Appeal Board (PTAB), which dismissed his

appeals from the Kane County Board of Review's (BOR) assessment of the property. Because

Wickman sought a change in assessed valuation of $300,000 or more, we have jurisdiction to review

the decision directly. 35 ILCS 200/16--195 (West 2006). We reverse and remand to the PTAB with

instructions to consider Wickman's appeals on the merits.

The BOR issued its notices of assessment on March 12, 2007. Thereafter, Wickman mailed

a petition to the PTAB, seeking review of the assessments. The PTAB sent the BOR written notice

of the appeals. The notice indicated that Wickman's petition was postmarked April 12, 2007. The

No. 2--08--0129

BOR moved to dismiss the appeals because they were not filed within 30 days after the date of

written notice of the assessments, as required under section 16--160 of the Property Tax Code (Code)

(35 ILCS 200/16--160 (West 2006)). Wickman responded that the petition was placed in the mail

on April 11, 2007, the final day of the 30-day period, and was therefore timely. The record on appeal

includes a photocopy of the envelope in which the petition was mailed to the PTAB. A postage

meter imprint dated April 11, 2007, appears on the envelope as does a postmark (or "cancellation

mark") applied by the United States Postal Service (USPS).

The PTAB dismissed the appeals, but advised Wickman that it would consider a request to

reinstate the appeals upon proof that they were timely filed. Wickman moved for reconsideration,

but the PTAB denied the motion. Affidavits submitted in support of Wickman's response to the

BOR's motion to dismiss and his motion to reconsider the dismissal indicate that his attorney's legal

assistant deposited the petition in the mail at the St. Charles post office at about 4:15 p.m. on April

11, 2007.

At the outset, we note that the PTAB has filed a motion to strike an exhibit attached to

Wickman's reply brief. The exhibit consists of photographs of a United States mailbox labeled to

indicate that mail is collected at 4:45 p.m. The PTAB also moves to strike references to the exhibit

in Wickman's reply brief. We ordered the motion taken with the case. The photographs are not part

of the record on appeal. "Attachments to briefs not included in the record on appeal are not properly

before the appellate court, and they cannot be used to supplement the record." Wauconda Fire

Protection District v. Stonewall Orchards, LLP, 343 Ill. App. 3d 374, 377 (2003). Accordingly, we

grant the PTAB's motion.

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Turning to the merits, Wickman argues that his appeals were filed on April 11, 2007, and

were therefore timely. He notes, inter alia, that April 11, 2007, is the date that appears on the

postage meter mark on the envelope enclosing the petition and that it is undisputed that the petition

was placed in the mail on that date. He also insists that April 11, 2007, is the "postmark date" for

the petition and that the petition "was therefore timely as a matter of law." Wickman further

contends that the USPS postmark is indecipherable and that, in any event, it has no bearing on the

timeliness of his appeals.

Section 16--160 of the Code (35 ILCS 200/16--160 (West 2006)) provides that a taxpayer

may appeal to the PTAB from a decision of a board of review within 30 days after the date of written

notice of the decision. There is no dispute that the last day of the 30-day period was April 11, 2007.

Accordingly, the salient issue is whether Wickman filed his appeals on or before that date. Section

1.25 of the Statute on Statutes provides, in pertinent part, as follows:

"Unless An Act otherwise specifically provides, any writing of any kind or

description required or authorized to be filed with, and any payment of any kind or

description required or authorized to be paid to, the State or any political subdivision thereof,

by the laws of this State:

(1) if transmitted through the United States mail, shall be deemed filed with or

received by the State or political subdivision on the date shown by the post office

cancellation mark stamped upon the envelope or other wrapper containing it;

(2) if mailed but not received by the State or political subdivision, or if received but

without a cancellation mark or with the cancellation mark illegible or erroneous, shall be

deemed filed with or received by the State or political subdivision to which it was required

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or authorized to be directed on the date it was mailed, but only if the sender establishes by

competent evidence that the writing or payment was deposited, properly addressed, in the

United States mail on or before the date on which it was required or authorized to be filed

or was due." (Emphasis added.) 5 ILCS 70/1.25 (West 2006).

The Code does not indicate when an appeal is considered filed, so the foregoing provision

applies. Consequently, if the envelope enclosing Wickman's petition had borne a legible cancellation

mark, that mark--unless "erroneous"--would establish the date of filing. A postmark functions as

a cancellation mark, and the terms are sometimes used interchangeably. See In re Application of

County Collector, 265 Ill. App. 3d 485, 488 (1994) (noting that the cancellation mark is "commonly

referred to as the postmark"). A postmark is "an official postal marking on a piece of mail; specif

: a mark showing the name of the post office and the date and sometimes the hour of mailing and

often serving as the actual and only cancellation." Webster's Third New International Dictionary

1772-73 (1993). The high court of a sister state has noted, however, that "[p]rivate meter postmarks

are official postmarks imprinted under license from the United States Postal Service [citation], and

metered mail is entitled to all privileges applying to the various classes of mail." Bowman v.

Administrator, Ohio Bureau of Employment Services, 30 Ohio St. 3d 87, 90, 507 N.E.2d 342, 344

(1987). It has also been held that marks imprinted by private postage meters serve the same purpose

and have the same effect as cancellation marks. Chevron U.S.A., Inc. v. Department of Revenue,

154 P.3d 331, 334-35 (Wyo. 2007).

Assuming, without deciding, that a private postage meter mark qualifies as a cancellation

mark, then the envelope enclosing the petition contained two cancellation marks: the postage meter

mark and the USPS postmark/cancellation mark. However, only the former--the postage meter

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mark--is legible. Although that mark is faint, the date April 11, 2007, is discernable upon close

examination. In contrast, the date of the USPS postmark/cancellation mark is superimposed over

a machine-readable portion of the postage meter mark and is largely unreadable. On careful

inspection, the number 12 (evidently signifying the day of the month) is sufficiently recognizable,

as are the first two digits of the year--"2" and "0." However, the remaining digits of the year and the

abbreviation for the month are completely illegible.

We need not decide whether the postage meter mark is or is not a cancellation mark within

the meaning of section 1.25 of the Statute on Statutes. Wickman's appeals would be timely in either

event. If the postage meter mark is a cancellation mark, it is the only legible one on the envelope;

it would establish the filing date as April 11, 2007, pursuant to subsection (1) of section 1.25. If, on

the other hand, the postage meter mark is not a cancellation mark, then there is no legible

cancellation mark on the envelope, and the timeliness of the appeals would be governed by

subsection (2) of section 1.25, which provides that a writing is deemed filed on the date it is mailed

"if the sender establishes by competent evidence that the writing or payment was deposited, properly

addressed, in the United States mail on or before the date on which it was required or authorized to

be filed or was due." 5 ILCS 70/1.25(2) (West 2006). There is no dispute that the envelope was

properly addressed, and Wickman has established by affidavit that the envelope was deposited in the

United States mail on April 11, 2007.

We conclude, as a matter of law, that Wickman's appeals were timely filed on April 11, 2007.

Accordingly, we reverse the order dismissing Wickman's appeals and remand to the PTAB for

proceedings on the merits of those appeals.

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Reversed and remanded with instructions.

ZENOFF, P.J., and McLAREN, J., concur.

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