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Full Opinion
2017 IL 119945
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 119945, 119960 cons.)
THE HERTZ CORPORATION et al., Appellants, v. THE CITY OF CHICAGO et al., Appellees.
Opinion filed January 20, 2017.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Defendant, the city of Chicago (City), imposes a tax on the use of personal
property within its borders. The tax applies to the lease of personal property within
the City and to the use of property in the City that is rented or leased outside the
City. In 2011, the City’s director of the department of revenue (now the City
comptroller) issued Ruling 11, which provided guidance to suburban vehicle rental
agencies located within three miles of Chicago’s borders, including plaintiffs, as to
the collection of the tax. Personal Property Lease Transaction Tax Second
Amended Ruling 11 (eff. May 1, 2011) (Ruling 11). Ruling 11 stated that
beginning July 1, 2011, in the event of an audit, the City department of revenue
(Department) would hold the suburban rental agencies responsible for paying the
tax unless there was written proof that the lessee was exempt from paying the tax
based upon the use of the leased vehicle outside the City. In the absence of such
proof, Ruling 11 provided, the Department would assume that a customer who is a
Chicago resident would use the leased vehicle primarily in the City and that a
customer who is not a Chicago resident would use the vehicle primarily outside the
City.
¶2 Plaintiffs, the Hertz Corporation (Hertz) and Enterprise Leasing Company of
Chicago (Enterprise), separately filed suit against the City and the City comptroller,
seeking a declaration that the tax violates the Illinois and United States
Constitutions and requesting an injunction to prevent the City from enforcing the
ordinance as to them. The circuit court granted summary judgment to plaintiffs,
declaring that Ruling 11 was facially unconstitutional and permanently enjoining
the City from enforcing the ordinance against plaintiffs with respect to short-term
vehicle rental transactions occurring outside the City’s borders. The appellate court
reversed.
¶3 BACKGROUND
¶4 The Chicago personal property lease transaction tax ordinance (Chicago
Municipal Code § 3-32-030(A) (added Dec. 15, 1992)) levies a tax on the lease or
rental in the City of personal property or the privilege of using in the City personal
property that is leased or rented outside the City. The obligation to pay the tax is
upon the lessee of the personal property. The lease or rental of the property is
deemed to take place at the location where the lessee takes possession or delivery of
the personal property. Chicago Municipal Code § 3-32-030(C) (added Dec. 15,
1992). The use in the City of personal property leased or rented outside the City is
exempt from the tax if it is primarily used (more than 50%) outside the City.
Chicago Municipal Code § 3-32-050(A)(1) (added Dec. 15, 1992).
¶5 In May 2011, the then-director of the City’s department of revenue
promulgated a second amended ruling, Ruling 11, to explain the administration and
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enforcement of the ordinance as applied to suburban short-term vehicle rental
locations within three miles of the City’s borders. The ruling applies to vehicle
rental companies that are doing business in the City, defined as having a rental
location in the City or regularly renting vehicles that are used in the City, such that
the company is subject to audit by the Department. Id. § 3. Ruling 11 advises
vehicle rental companies doing business in the City, when renting from a suburban
location within three miles of the City’s borders to a customer who will use the
vehicle in the City, to maintain written records that support any claim of exemption
from the tax, for the company’s use in the event of an audit. In such an event, the
ruling states, absent written proof to the contrary, the Department will assume that a
customer who is a Chicago resident, based upon the customer’s driver’s license,
will use the vehicle in the City and is thus subject to the tax. Conversely, the ruling
further states that the Department will assume that a customer who is not a Chicago
resident will use the vehicle primarily outside the City and thus be exempt from the
tax. Ruling 11 suggested the following provisions for inclusion in rental
agreements, which, when selected by the customer, would be deemed by the
Department to be acceptable evidence of taxable and exempt transactions:
“___By initialing this space you are notifying us that you plan to use this
vehicle 50% or more of the time (including garaging) in the City of Chicago.
___ By initialing this space you are notifying us that you plan to use this vehicle
more than 50% of the time (including garaging) outside the City of Chicago.”
Id.
¶6 Section 4 of Ruling 11 states that, as a policy matter, the Department has
decided that it will not audit or assess any motor vehicle rental companies for
rentals from locations more than three miles outside the City’s border. Ruling 11
further states that in the event of a change in policy, the Department will provide at
least 120 days’ notice of the change, which would be prospective only. Id. § 4.
Ruling 11 contains a “safe harbor” provision, which states that in lieu of
maintaining written records, a suburban motor vehicle rental company subject to
the ruling may assume that 25% of its rental charges to customers who are Chicago
residents are for vehicles that will be used primarily in Chicago and the company
may then pay the tax on that amount. Id. § 5.
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¶7 Subsequent to the issuance of Ruling 11, Enterprise sought guidance from the
Department on whether its current lease agreement was sufficient to provide an
exemption from the tax. That agreement informed the lessee of the vehicle that a
city tax may apply if the leased vehicle is used primarily in the City. The agreement
further advised the lessee to request a tax form for remittance of the tax directly to
the City should the lessee intend to use the vehicle primarily in Chicago. The City
found the agreement insufficient to support an exemption from the tax, reasoning
that silence by a Chicago resident as to the intended use of the vehicle did not
constitute a claimed exemption by the lessee and that a Chicago lessee should be
required to expressly inform Enterprise whether the intended use of the car would
primarily be in Chicago.
¶8 Plaintiffs filed separate actions against the City, seeking declaratory and
injunctive relief. Those actions were later consolidated. Plaintiffs alleged that
Ruling 11 (1) violates the due process clause of the fourteenth amendment to the
United States Constitution (U.S. Const., amend. XIV, § 1) based upon the alleged
extraterritorial nature of the tax; (2) has an unauthorized extraterritorial effect in
violation of article VII, section 6, of the Illinois Constitution (Ill. Const. 1970, art.
VII, § 6); (3) is unauthorized because it exceeds the scope of and is prohibited by
the ordinance imposing the tax; and (4) violates the commerce clause of the United
States Constitution (U.S. Const., art. I, § 8, cl. 3). Plaintiffs further alleged that the
tax ordinance itself is unconstitutional with respect to extraterritorial transactions.
Hertz separately alleged that the retroactive application of Ruling 11 is illegal.
¶9 Enterprise filed a motion for preliminary injunction, and the City filed separate
motions to dismiss the complaints. The circuit court denied the City’s motions and
granted Enterprise’s motion for preliminary injunction. Enterprise filed a motion
for summary judgment, which Hertz joined. The circuit court granted plaintiffs
summary judgment. The court found that Ruling 11 is an exercise of improper
extraterritorial taxing authority because the taxable event, i.e., the lease transaction,
takes place outside the City’s boundaries. The court also found that Ruling 11
exceeds the scope of the tax ordinance by improperly extending the reach of the
ordinance to transactions that take place outside Chicago’s borders. Finally, the
circuit court found that Ruling 11 violates the due process and commerce clauses of
the United States Constitution.
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¶ 10 The appellate court reversed. It first rejected plaintiffs’ characterization of the
tax as a transaction tax. Based upon the plain language of the tax ordinance, the
court found that the tax is in fact a use tax on the privilege of using leased tangible
personal property inside the City. 2015 IL App (1st) 123210, ¶ 22. The court held
that because plaintiffs had rental locations in the City and, therefore, did business in
the City, they could be required to collect the use tax at their suburban locations. Id.
¶¶ 26-27. The court found a sufficient nexus between plaintiffs and the taxable
activity, i.e., use of the vehicles in Chicago, to permit the tax to be imposed and
collection duties placed on plaintiffs. Id. ¶ 31. The appellate court also rejected
plaintiffs’ other arguments. We granted plaintiffs’ petitions for leave to appeal (Ill.
S. Ct. R. 315 (eff. Mar. 15, 2016)), and the cases were consolidated for review. We
allowed the Illinois Chamber of Commerce and the Taxpayers’ Federation of
Illinois to file briefs amici curiae pursuant to Illinois Supreme Court Rule 345 (eff.
Sept. 20, 2010).
¶ 11 ANALYSIS
¶ 12 The circuit court granted summary judgment to plaintiffs. Summary judgment
is proper when the pleadings, depositions, and admissions on file, together with any
affidavits, show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014).
This court reviews a grant of summary judgment de novo. Lazenby v. Mark’s
Construction, Inc., 236 Ill. 2d 83, 93 (2010).
¶ 13 Plaintiffs argue that Ruling 11 (1) extends the reach of the tax ordinance beyond
Chicago’s borders in violation of the home rule provision of the Illinois
Constitution and (2) violates the federal due process and commerce clauses. We
first address plaintiffs’ home rule argument.
¶ 14 Article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII,
§ 6(a)) allows home rule units to exercise “any power and perform any function
pertaining to its government and affairs including, but not limited to, the power to
regulate for the protection of the public health, safety, morals and welfare; to
license; to tax; and to incur debt.” Home rule units may exercise concurrently with
the State “any power or function of a home rule unit to the extent that the General
Assembly by law does not specifically limit the concurrent exercise or specifically
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declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i). In City
of Carbondale v. Van Natta, 61 Ill. 2d 483, 485 (1975), this court held that the
intent of the framers of the home rule article was that whatever extraterritorial
governmental powers home rule units may exercise must be granted by the
legislature. Thus, home rule units may not extend their home rule powers, such as
the taxing power, beyond their borders unless expressly authorized by the General
Assembly.
¶ 15 Plaintiffs argue that Ruling 11 is an unconstitutional extraterritorial exercise of
the City’s home rule authority in two ways. They argue that (1) no part of the
transaction takes place within Chicago’s borders and (2) 100% of the cost of a car’s
rental is taxed even though Ruling 11 requires that the car be driven in Chicago for
only 50% of the time to be subject to the tax. Plaintiffs assert that this court’s
decision in Commercial National Bank of Chicago v. City of Chicago, 89 Ill. 2d 45
(1982), is dispositive of this appeal.
¶ 16 In response, the City denies that Ruling 11 imposes a tax on transactions or use
outside Chicago. The City argues that the tax applies only to residents of Chicago
or to those who use a rental car in Chicago for at least 50% of the rental period. The
City further argues that plaintiffs erroneously rely on Commercial National Bank
for their argument that the City may not tax 100% of the transaction cost when the
required taxable use is only 50% of the time the leased vehicle is driven in Chicago.
¶ 17 In Commercial National Bank, this court considered the constitutionality of
Chicago’s service tax ordinance, which imposed a tax on a purchaser who
purchased service in the city at the rate of 1% of the purchase price of the service.
Collection and remittance duties were placed on the seller, who was also liable for
uncollected taxes. The plaintiffs challenged the tax on grounds that it was an
unconstitutional tax upon occupations, which required express legislative
authorization under article VII, section 6(e), of the Illinois Constitution. The
plaintiffs also argued that the ordinance was an impermissible extraterritorial
exercise of the City’s home rule power. The ordinance stated that a purchase of
service was considered to be in the City if the purchaser was in the City at the time
the service was provided, or the seller was in the City at that time, and 50% or more
of the service was substantially performed, received, rendered, provided and
received, or used in the city.
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¶ 18 This court held the ordinance violated article VII, section 6(e), of the Illinois
Constitution because it amounted to a tax on occupations. The court also held that
the ordinance violated article VII, section 6(a), due to its extraterritorial effect,
stating:
“It cannot be doubted that this ordinance has extraterritorial effects for both
purchasers and sellers of service. A nonresident purchaser would be liable for
the tax even though his only contact with the city might be through dealings
with sellers of service ‘in the city.’ A nonresident purchaser could contract with
a nonresident seller of service and if that seller ‘substantially performs’ the
service in the city both are then liable for the tax on the entire transaction. To
‘substantially perform’ the service in the city, the seller need only perform 50%
of the work or incur 50% of the cost in the city, but the tax would be on the total
value of the services. This is a clear attempt by the city of Chicago to give
extraterritorial effect to its ordinance and to tax services that have no
connection with the taxing city.” Commercial National Bank, 89 Ill. 2d at 77.
The court noted it was not holding that nonresidents of a home rule unit can never
be taxed by that unit. However, the home rule unit cannot tax services neither
rendered nor performed in the taxing entity’s jurisdiction. Id. at 78.
¶ 19 In Commercial National Bank, this court cited its decision in Mulligan v.
Dunne, 61 Ill. 2d 544 (1975), in which the court upheld a Cook County ordinance.
That case involved an ordinance imposing a tax on the retail sale in Cook County of
all alcoholic beverages. The tax was to be collected and paid to the Cook County
collector by wholesalers who sold such beverages to retailers doing business in the
county. The retailers, in turn, were to collect the tax from consumers by including it
in the purchase price. The ordinance was challenged by the plaintiffs on several
grounds, one of which was that it exceeded the home rule authority of the county by
requiring out-of-county wholesalers to collect the tax. This court held that it was
not an exercise of extraterritorial powers to collect a tax from sellers located outside
the boundaries of the governmental unit who do business within the boundaries of
that unit. Id. at 558.
¶ 20 This court noted in Commercial National Bank that in all its prior decisions on
home rule unit taxing power, the products or services taxed were purchased or used
within the territorial limits of the home rule unit. In contrast, the ordinance in
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Commercial National Bank purported to tax services performed outside the city.
Given the number of local governmental units, particularly in the Chicago area, the
court noted, unrestrained extraterritorial exercise of the powers of taxation and
zoning and in other areas could create serious problems, as each home rule unit in
Illinois could exercise such powers. Commercial National Bank, 89 Ill. 2d at 78-79.
¶ 21 Plaintiffs note that the lease transactions in this case occur entirely outside the
borders of Chicago. The lease is negotiated and signed outside of Chicago, and the
leased vehicle is delivered to the customer outside of Chicago. Thus, according to
plaintiffs, Ruling 11 impermissibly requires them to act as the City’s tax collectors
when none of the rental transaction occurs within Chicago. The City emphasizes
that the only taxable event is use of the leased vehicle in Chicago by residents of
Chicago. Thus, according to the City, the extraterritoriality problem identified by
Commercial National Bank does not arise. The City distinguishes that case because
it involved a “service tax,” whereas Ruling 11 involves a “use tax,” which the City
argues is a tax on the privilege of using property in Chicago. The City finds it
significant that, once paid, a use tax entitles the taxpayer to use the property an
unlimited number of times within the taxing jurisdiction.
¶ 22 In support of these arguments, the City cites Irwin Industrial Tool Co. v.
Department of Revenue, 238 Ill. 2d 332 (2010), in which this court upheld a use tax
assessed by the Illinois Department of Revenue on the total purchase price of an
airplane that was hangared in Nebraska but used about half of the time in Illinois.
The plaintiff challenged the tax under the commerce clause on the ground that the
airplane lacked a substantial nexus to Illinois. In the alternative, the plaintiff argued
that even if the tax were permissible, it should have been based on the airplane’s
actual use in Illinois, rather than the total purchase price. This court rejected both
arguments. As to the substantial nexus argument, the court noted there must be a
connection to the activity taxed itself, rather than a connection to the individual or
corporation taxed. Physical presence in the taxing jurisdiction is required. The
court noted evidence of over two hundred takeoffs and landings and overnight
presence in Illinois on several occasions. This court thus found a sufficient nexus to
Illinois to permit the use tax to be imposed. As to the apportionment argument, this
court noted that the Use Tax Act contains an exemption from use tax for tangible
personal property that has been subjected to sales or use taxes in other states and
that the United States Supreme Court had held that such credits satisfy both the
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issue of multiple taxation and the requirement that a tax on interstate commerce be
fairly apportioned. Id. at 347.
¶ 23 Irwin involved a due process challenge under the federal constitution. It did not
involve any issue of home rule authority. Similarly, First Access Material
Handling v. Wish, 297 Ill. App. 3d 396 (1998), another case cited by the City,
involved a due process challenge under the federal and Illinois Constitutions to a
use tax assessed by the Chicago department of revenue on items of personal
property owned by the plaintiff and leased to lessees located in Chicago. The
plaintiff’s offices were all located outside Chicago. One of the plaintiff’s arguments
was that the Department had improperly used the full value of each piece of
equipment in calculating the amount of the tax rather than apportioning the tax to
take into account the period of time during which the equipment was actually used
in Chicago. The ordinance in question imposed a use tax on the privilege of using in
Chicago nontitled tangible personal property at the rate of 1% of the full purchase
price of the property. The appellate court held that the Department did not violate
the plaintiff’s due process rights, noting that due process requires a minimum
connection between the taxpayer and the taxing body. The court noted that the use
tax at issue was a tax on the privilege of using property within Chicago’s borders
and that, once paid, the plaintiff may use the property as frequently as it wishes in
Chicago and the court could not determine from the record how often the plaintiff
would do so. Thus, the court found, it was not a violation of due process to refuse to
apportion the tax to reflect the property’s use outside of Chicago. Id. at 405.
¶ 24 The City’s reliance on due process cases is misplaced. It cites no authority for
equating the concepts of due process and home rule authority under the Illinois
Constitution. These cases therefore do not support the City’s arguments. As for the
City’s distinguishing of Commercial National Bank on the basis that it concerned a
tax on services and the instant case concerns a tax on use of leased vehicles, we find
no meaningful distinction. The question here is whether the City has improperly
extended its home rule power to tax beyond its borders by requiring plaintiffs to
collect the subject tax from vehicle lessees who state their intention to use the
vehicle at least 50% of the time in Chicago. It does not matter whether the taxed
commodity is services or use of personal property.
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¶ 25 The City notes that this court held the service tax in Commercial National Bank
was imposed on nonresident sellers and purchasers of service, and it points out that
the tax in this case is imposed only on residents of Chicago. The City cites no
authority for the proposition that mere residence in a taxing jurisdiction gives that
jurisdiction the ability to impose taxes on the resident regardless of whether the
taxed property or activity is connected to the taxing entity. In fact, Ruling 11
recognizes that a Chicago resident may not be subject to the tax if he or she
indicates an intention to use the leased vehicle primarily outside Chicago. In such
an event, the City takes that lessee at his or her word, and the tax is not imposed.
Similarly, if a non-Chicago resident indicates an intention to use the leased vehicle
primarily in Chicago, the tax would apply; thus, the tax, at least as it relates to the
intention of the lessee, does not depend on residency.
¶ 26 The City regards it as indisputable that entities doing business within the
boundaries of a taxing jurisdiction may be required to collect taxes outside the
boundaries of that jurisdiction. The City cites Mulligan, in which out-of-county
wholesalers were required to collect sales taxes when selling alcoholic beverages to
retailers within Cook County. The City also cites S. Bloom, Inc. v. Korshak, 52 Ill.
2d 56 (1972) (out-of-county tobacco wholesalers required to collect sales tax from
retailers who sell cigarettes to customers in Chicago), and American Beverage
Ass’n v. City of Chicago, 404 Ill. App. 3d 682 (2010) (wholesalers and retailers
required to collect sales tax on sales of bottled water). In each of these cases,
however, the tax was levied on sales of tangible personal property that took place
within the borders of the taxing jurisdiction. Thus, the connection between the
taxing jurisdiction, the items taxed, and those businesses responsible for collecting
the tax was clear. The sellers of the taxed items did business in Chicago by selling
the taxed items either to retailers located in Chicago or to consumers from locations
within Chicago. To the extent the sellers were located outside the taxing
jurisdiction, that fact was irrelevant because they did business in the jurisdiction by
selling the taxed items within the borders of the taxing jurisdiction. The City seeks
to expand these cases to the present situation by arguing that because plaintiffs have
business locations in Chicago, they are doing business in Chicago and, because
they are doing business in Chicago, the City may require them to collect use taxes
on transactions outside Chicago’s borders based upon the lessee’s stated intent as to
use of the leased vehicle or, in the alternative, the lessee’s residence, failing a
statement of intent.
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¶ 27 The City’s cited cases, however, do not support this argument. The cases relied
on by the City involved a tangible connection to the taxing jurisdiction either
through delivery of the taxed items into the taxing entity or through sale of the
taxed items inside the borders of the taxing jurisdiction. Here, Ruling 11 taxes the
stated intention of the lessee to use the leased vehicle inside Chicago’s borders. At
oral argument in this case, the City’s counsel asserted that a lessee’s statement of
intent is evidence of use inside Chicago. We disagree. A statement of one’s intent is
evidence only of present intent, not of actual use, which takes place at some time in
the future. The fact is that, at the time of the lease transaction, the use of the leased
vehicle has not taken place and may never take place within Chicago’s borders.
There is no delivery of the leased vehicles into Chicago, and the lease transactions
take place wholly outside Chicago. At most, there is only a tenuous connection
between the City and the taxed transaction. Ruling 11 also taxes presumed use of
the leased vehicle. Absent a stated intention from the lessee regarding where the
vehicle will be driven, the tax is imposed based solely upon the residence address
shown on the lessee’s driver’s license. The transactions in the instant case are thus
far different from the ones in cases cited by the City.
¶ 28 The City also argues that plaintiffs are “doing business” in Chicago because, by
“setting up shop so close to Chicago,” they are leasing vehicles to customers who
will drive them on a short-term basis in Chicago. According to the City, because
their vehicles are driven on Chicago streets and parked there, plaintiffs enjoy
municipal services such as police and fire protection, as well as maintenance of
Chicago’s streets. Thus, provision of these services gives the City the right to
require tax collection by plaintiffs for transactions that occur outside Chicago’s
borders. The City cites City of Evanston v. Create, Inc., 85 Ill. 2d 101 (1981), in
support of this argument. That case involved a city ordinance that imposed certain
conditions on every lease of residential real estate located within Evanston’s
borders. The defendant, a real estate broker and management firm, argued that the
area of landlord-tenant law was subject to exclusive State control and thus outside
the authority of Evanston, as a home rule unit. This court rejected that argument.
The defendant also claimed that the ordinance had an extraterritorial effect because
contracting parties whose residence or business was outside the city would be
subject to the ordinance. This court also rejected this argument, noting that the
ordinance controlled only rental property within the city’s borders and affected
only the owners and tenants of such properties. Id. at 116.
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¶ 29 The City’s reliance on Create is misplaced. The property affected by the
ordinance in that case applied only to property actually located within the home
rule unit’s boundaries. There was no extraterritorial effect. Here, in contrast, the
City’s use tax is imposed not on actual use within the City’s borders but on the
lessee’s stated intent to use the property in Chicago or, failing any statement of
intent, on presumed use based upon the lessee’s residence address. The two
situations are not similar.
¶ 30 None of the City’s cited cases bears any similarity to the case at bar. Here, the
City seeks to tax use of rental vehicles in Chicago, but in fact, the tax is imposed on
stated intent as to future use or on a conclusive presumption of use based on
Chicago residency, absent a statement of intent. The stated intent as to use in
Chicago may or may not actually take place. Further, the conclusive presumption
of taxability based on residency has nothing to do with use of the rental vehicles, as
there is no evidence of where the vehicle was in fact driven. Absent an actual
connection to Chicago, the City’s tax under Ruling 11 amounts to a tax on
transactions that take place wholly outside Chicago’s borders. This court warned in
Commercial National Bank that unrestrained extraterritorial exercise of home rule
powers in zoning, taxation, and other areas could create serious problems, given the
number of home rule units in Illinois, particularly in the Chicago area. Sanctioning
the tax here based on nothing more than a lessee’s stated intention or a conclusive
presumption of use in Chicago based solely on residency would allow other home
rule units in the Chicago area to enact their own use taxes in similar circumstances.
This would result in greatly expanded obligations on vehicle lessees to estimate the
percentage of use they intend to make in each taxing jurisdiction and on motor
vehicle rental companies to collect and remit taxes to multiple jurisdictions. The
drafters of our constitution limited the extraterritorial exercise of home rule powers
to those enacted by the legislature. Commercial National Bank, 89 Ill. 2d at 79.
Ruling 11 exceeds the scope of the City’s home rule authority.
¶ 31 Accordingly, we hold that Ruling 11 violates the home rule article of our
constitution because it has an extraterritorial effect and is therefore an improper
exercise of the City’s home rule powers. In light of our holding, we need not
address the parties’ remaining arguments.
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¶ 32 CONCLUSION
¶ 33 We hold that Ruling 11 is unconstitutional under the home rule article of the
Illinois Constitution. We therefore reverse the judgment of the appellate court.
¶ 34 Appellate court judgment reversed.
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