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In reviewing a final decision under the Administrative ReviewLaw (735 ILCS 5/3-101 et seq. (West 1998)), we review the administra-tive agency's decision, not the circuit court's determination. SeeXL Disposal Corp. v. Zehnder, 304 Ill. App. 3d 202, 207 (1999). Anadministrative agency's decisions on questions of fact are entitledto deference and are reversed only if against the manifest weightof the evidence. See XL Disposal Corp., 304 Ill. App. 3d at 207. Questions of law decided by an administrative agency are notentitled to deference, however, and are reviewed de novo. See XLDisposal Corp., 304 Ill. App. 3d at 207.

The issue in this case cannot be neatly characterized aseither one of law or fact. See City of Belvidere v. Illinois StateLabor Relations Board, 181 Ill. 2d 191, 205 (1998). The ALJ'sfinding is factual, in part, because it involves a determination ofthe purposes for which Rogy's facilities were organized andoperated. The ALJ had to consider whether the facts in this casesupport a finding that Rogy's facilities are institutions "orga-nized and operated exclusively for *** educational purposes." 35ILCS 105/3-5(4)(West 1998); 35 ILCS 120/2-5(11)(West 1998). TheALJ's finding also concerns a question of law because the scope ofthe educational exemption is statutorily defined and, thus,requires interpretation. 35 ILCS 105/2c (West 1998); 35 ILCS120/2h (West 1998). Consequently, because this case involves anexamination of the legal effect of a given set of facts, itinvolves a mixed question of fact and law and the ALJ's determina-tion should be affirmed unless clearly erroneous. See XL DisposalCorp., 304 Ill. App. 3d at 207.

"Clearly erroneous" is said to rest somewhere between the"manifest weight of the evidence" standard and the de novo standard,requiring us to afford some deference to the agency's experienceand expertise. City of Belvidere, 181 Ill. 2d at 205. Under thisstandard, we must accept the administrative agency's findingsunless we are " 'left with the definite and firm conviction that amistake has been committed.' " Concrete Pipe & Products ofCalifornia, Inc. v. Construction Laborers Pension Trust, 508 U.S.602, 622, 124 L. Ed. 2d 539, 563-64 113 S. Ct. 2264, 2279 (1993),quoting United States v. United States Gypsum Co., 333 U.S. 364,395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 541-42 (1948).

In addition, on administrative review, this court has thepower to affirm or reverse an agency's decision in whole or in part(735 ILCS 5/3-111(a)(5), 3-113 (West 1998)), and also to affirm thedecision on any basis appearing in the record. See Habinka v.Human Rights Comm'n, 192 Ill. App. 3d 343, 372 (1989).

We also note that it is well established that statutesgranting tax exemptions must be strictly construed in favor oftaxation (Christian Action Ministry v. Department of LocalGovernment Affairs, 74 Ill. 2d 51, 62 (1978)), and the party claim-ing an exemption has the burden to prove clearly and conclusivelythat it is entitled to exemption. See Telco Leasing, Inc. v.Allphin, 63 Ill. 2d 305, 310 (1976). Moreover, courts have nopower to create exemption from taxation by judicial construction(People ex rel. Cannon v. Southern Illinois Hospital Corp., 404Ill. 66, 68 (1949)), and each individual claim must be determinedfrom the facts presented. See Coyne Electrical School v. Paschen,12 Ill. 2d 387, 394 (1957). All facts are to be construed and alldebatable questions resolved in favor of taxation. City of Chicagov. Illinois Department of Revenue, 147 Ill. 2d 484, 491-92 (1992).

Rogy's first argument on appeal is that the DOR "arbitrarilyand capriciously, and contrary to law, determined that plaintiffswere disqualified from tax-exempt status under [the Retailers'Occupation Tax Act and the Use Tax Act]."

Under the Retailers' Occupation Tax Act and the Use Tax Act,some retail sales are exempt from taxation. At issue here is theexemption provided under both acts for entities "organized andoperated exclusively for *** educational purposes." 35 ILCS 120/2-5(11)(West 1998); 35 ILCS 105/3-5-4 (West 1998). The scope of theeducational exemption is defined by statute, in pertinent part, toinclude:

"all tax-supported public schools; privateschools which offer systematic instruction inuseful branches of learning by methods commonto public schools and which compare favorablyin their scope and intensity with the courseof study presented in tax-supported schools;licensed day care centers as defined inSection 2.09 of the Child Care Act of 1969[(225 ILCS 10/1 et seq. (West 1998))] which areoperated by a not for profit corporation,society, association, foundation, institutionor organization[.]" 35 ILCS 105/2c (West1998); 35 ILCS 120/2h (West 1998).

Case law provides that to qualify for an educationalexemption, a private entity must meet two prerequisites: (1) itmust "offer a course of study which fits into the general scheme ofeducation established by the State"; and (2) "the course ofinstruction must lessen the tax burden of the public by providingan education which would otherwise have to be furnished by theState." Yale Club v. Department of Revenue, 214 Ill. App. 3d 468,474 (1991). This two-prong test was first articulated by theIllinois Supreme Court in a number of property tax exemption cases(see Coyne Electrical School v. Paschen, 12 Ill. 2d 387, 393(1957); Illinois College of Optometry v. Lorenz, 21 Ill. 2d 219(1961)), and is applicable to the sales tax exemption. See YaleClub, 214 Ill. App. 3d at 476.

Under the facts presented, we find that Rogy cannot meeteither prong of the two-part test. As noted by the circuit court,the fundamental flaw in Rogy's case is that the State does notprovide, nor mandate, education for children under the age of five. See 105 ILCS 5/10-20.12 (West 1998). As a result, Rogy cannotprove that its program fits into the "general scheme of educationfounded by the State" because similar programs do not exist. Norcan Rogy prove that its programs "lessen the tax burden of thepublic by providing an education which would otherwise have to befurnished by the State." Because education is not required forchildren under the age of five, there is no governmental obligationto educate these children and, therefore, no corresponding publictax burden to bear. See, e.g., Chicago & Northeast Illinois Dis-trict Council of Carpenters Apprentice & Trainee Program v. Depart-ment of Revenue, 293 Ill. App. 3d 600, 611 (1997) (carpentry pro-gram not entitled to tax exemption because the state is notrequired to fund or offer such a program); American College ofChest Physicians v. Department of Revenue, 202 Ill. App. 3d 59, 61(1990) (no exemption because no Illinois requirement for continuingmedical education); Board of Certified Safety Professionals of theAmericas, Inc. v. Johnson, 112 Ill. 2d 542, 546 (1986) (no exemp-tion because no Illinois requirement for the certification of"safety professionals").

Rogy attempts to analogize this case to Illinois College ofOptometry v. Lorenz, 21 Ill. 2d 219 (1961), wherein the supremecourt found that the Illinois College of Optometry (ICO) offered acourse of study that fit into the general scheme of educationestablished by the State and lessened the tax burden of the publiceven though the State of Illinois had not established a separateschool or college of optometry nor was a department of optometryincluded in existing tax-supported schools. Rogy asserts that,based on Illinois College of Optometry, we cannot rely on the factthat the State neither mandates nor provides education for childrenunder the age of five. We disagree. In Illinois College Optome-try, the court specifically found that the University of Illinoisoffered the same courses taught by the ICO and that the samecourses offered by each were necessary to become qualified topractice optometry. Thus, the court concluded that the ICO offereda course of instruction which duplicates that offered in publicschools. Moreover, the court reasoned that if the ICO did notoperate, then the right to practice optometry could only be gainedby attaining a medical degree with a specialization in ophthalmo-logy. As a result, the tax burden of maintaining medical schoolswould be greater. The situation in the case at bar is not similar.

Accordingly, for the above reasons we hereby conclude thatRogy's cannot meet its burden under either prong of the two-prongtest.

Moreover, even if the above was not dispositive, the evidencepresented by Rogy falls short of establishing that it offers acourse of study which fits into the general scheme of educationestablished by the State. Cathy Raiborn, Rogy's curriculum coordi-nator, failed to testify. Richard Rogy testified that he had noexpertise in the area of Rogy's curriculum. And although NormaRichards, no doubt an expert in the field of early childhoodeducation, testified that Rogy's programs are "developmentallyappropriate" and "educationally sound," her testimony was conclu-sory at best. Richards also testified that Rogy's programs are"consistent with the standards established by the National Academyof Early Childhood"; however, no testimony was offered as to therelevance of this fact. Accordingly, we agree with the DOR'sconclusion that the testimony was insufficient to meet the firstprong of the test enunciated in Coyne.

Rogy also asserts that the DOR's "sole reliance" on the factthat Rogy operates for-profit day care centers was in error becausethe statutes involved contain no such disqualifying language. Wenote however that the DOR's decision was not based solely on thatfactor. Indeed, the DOR specifically found that Rogy did not proveby clear and convincing evidence that it was a corporationorganized and operated exclusively for educational purposes. Because we agree with the DOR's conclusions, we need not determinewhether for-profit day care centers are per se excluded from taxexemption under the definition of entities organized foreducational purposes.

Rogy next contends that it was denied due process of lawbecause the DOR did not provide a hearing prior to denying Rogy'srequest for an exemption.

As the DOR asserts, it is well established that "a State neednot provided pre-deprivation process for the exaction of taxes." McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496U.S. 18, 37, 110 L. Ed. 2d 17, 36, 110 S. Ct. 2238, 2250 (1990);see also Bob Jones University v. Simon, 416 U.S. 725, 746 n. 20, 40L. Ed. 2d 496, 514 n. 20, 94 S. Ct. 2038, 2050 n. 20 (1974) (notingthat the Court has dismissed "out of hand" for at least theprevious 60 years, claims that posttax assessment or collectionappeals are wanting in due process)

Accordingly, we find that Rogy was not denied due process oflaw.

Finally, Rogy argues that the DOR's procedures for reviewingexemption revocations fail to comply with the AdministrativeProcedure Act (Procedure Act) (5 ILCS 100/1 et seq. (West 1998)).

Rogy contends that the Procedure Act requires the DOR "promul-gate rules of procedure which provide for notice and an opportunityto be heard prior to taking any action" and cites section 10-25 ofthe Procedure Act in support. However, all that is required underthat section is that "all parties shall be afforded an opportunityfor a hearing after reasonable notice." 5 ILCS 100/10-25 (West1998). Rogy was given such an opportunity. Accordingly, we rejectthis argument.

Based on the foregoing, we hereby affirm the order of thecircuit court which affirmed the decision of the DOR and we remandfor assessment of the taxes incurred during the pendency of thisadministrative review action.

Affirmed and remanded.

Campbell, P.J., and O'Brien, J., concur.

1. Specifically, in a letter of June 26, 1996, the DOR askedRogy to provide copies of its Department of Children and FamilyServices day care license and its 501(c)(3) (26 U.S.C.A.