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e-Journal Summary
Opinion Date: 10/30/2012
e-Journal Date: 11/01/2012
Full Text Opinion

Practice Area(s):   Tax

Issues: Whether the Tax Tribunal (TT) had jurisdiction to hear the petitioner's appeal from its tax assessment; MCL 205.8; MCL 205.22; Review; Schultz v. Denton Twp.; Statutory interpretation; AERC of MI, LLC v. Grand Rapids; Walgreen Co. v. Macomb Twp.; Michigan Props., LLC v. Meridian Twp.; Whether the TT's decision invalidated 1999 AC, R 205.1011(5); Pontiac Sch. Dist. v. Pontiac Educ. Ass'n; MCL 205.28(1); Granger v. Naegele Adver. Cos.; Whether notice of a notice is itself "notice" contemplated by the statute (MCL 205.8); Whether the letter satisfied the requirements under MCL 205.8
Court: Michigan Court of Appeals (Published)
Case Name: SMK, LLC v. Department of Treasury
e-Journal Number: 53122
Judge(s): Per Curiam - Ronayne Krause, Borrello, and Riordan

[This case was considered concurrently with Fradco, Inc. v. Department of Treasury, Docket No. 306639.] This case presented an issue of first impression, the effect of MCL 205.8 on MCL 205.22. Petitioner argued that the 35-day time period begins to run only once a copy of the final assessment has been received by petitioner's representative. The court concluded that MCL 205.8 must be interpreted in tandem with MCL 205.28 as creating parallel notice requirements. If a taxpayer has filed proper written notice that appoints an official representative, then respondent must give notice to both the taxpayer and the taxpayer's representative before the 35-day period under MCL 205.22 begins to accrue. Because petitioner filed its appeal within 35 days after the representative received notice from respondent, the TT retained jurisdiction. In this case, an audit revealed that petitioner had understated its taxable sales. Based on the result of the audit, respondent confirmed that petitioner had understated its taxable sales and issued a final assessment against petitioner requiring it to pay unpaid sales taxes, penalties, and interest. Despite petitioner's request for respondent to send copies of all letters and notices to petitioner's representative, the final assessment was initially sent only to petitioner on or about 9/16/09. Petitioner's representative did not receive the final assessment from respondent until 7/20/10. Petitioner then filed an appeal with the TT on 7/28/10. Rather than responding to the petition before the TT, respondent moved for summary disposition under MCL 2.116(C)(4), arguing that the TT did not have jurisdiction over the appeal because it was not filed within 35 days of the final assessment. The TT concluded that MCL 205.8 adds a parallel notice requirement whenever a taxpayer has filed a proper written request for notices to be sent to a representative. The TT also concluded that because respondent did not initially issue notice to petitioner's appointed representative, the time period for petitioner's appeal did not begin to run until the first representative was notified. Thus, the appeal was timely, and the TT had jurisdiction. After concluding that the "source documents were well-maintained and adequate" to allow the TT to determine the proper sales tax due, the burden shifted to respondent to show that the amount was incorrect. Because respondent failed to satisfy that burden, the TT cancelled the final assessment against petitioner. The correctness of the amount paid was not an issue before the court. The issue before the court was when the 35-day period under MCL 205.22 begins to run if the taxpayer has previously filed a written request with the TT to send copies of all letters and notices to the taxpayer's representative. Affirmed.

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