Honigman Miller Schwartz & Cohn LLP v. City of Detroit

• Decision Date: 18 January 2018
• Docket Number: No. 336175,336175
• Parties: HONIGMAN MILLER SCHWARTZ AND COHN LLP, Petitioner-Appellant, v. CITY OF DETROIT, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

322 Mich.App. 667

915 N.W.2d 383

HONIGMAN MILLER SCHWARTZ AND COHN LLP, Petitioner-Appellant,

v.CITY OF DETROIT, Respondent-Appellee.

No. 336175

Court of Appeals of Michigan.

Submitted January 10, 2018, at Lansing.

Decided January 18, 2018, at 9:05 a.m. Leave to appeal sought.

Honigman Miller Schwartz and Cohn LLP (by John D. Pirich and Lynn A. Gandhi ) for petitioner.

Charles N. Raimi, Robert E. Forrest, and Sheri Whyte for respondent.

Before: Murphy, P.J., and Sawyer and Beckering, JJ.

Sawyer, J.

We are asked in this case to determine whether services performed by an attorney in Detroit on behalf of a client located outside the city while that attorney is physically located in his or her office in the city—is to be considered in-city or out-of-city income for purpose of § 23 of the City Income Tax Act (CITA).¹ Petitioner maintains that the relevant consideration is where the client receives the services, while respondent and the Tax Tribunal maintain that the relevant consideration is where the work is performed. We agree with petitioner, and we reverse the Tax Tribunal and remand.

Petitioner is a law firm with a primary office in the city of Detroit but with additional offices located elsewhere. Petitioner represents clients both within Detroit and outside Detroit. Under § 18 of CITA² , petitioner must determine the percentage of its business income that is derived from its business activities in Detroit. Petitioner uses §§ 20 through 24³ the business allocation percentage method, in making this determination. This method requires the taxpayer to calculate the business allocation percentage under three different methods and then average the three to arrive at the business allocation percentage.⁴ The three factors are: (1) the property factor under § 21, which considers the percentage of the business’s tangible personal and real property that is located within the city,⁵ (2) the payroll factor under § 22, which considers the percentage of total compensation that is "for work done or for services performed within the city,"⁶ and (3) the sales factor under § 23, which considers the gross revenue "derived from sales made and services rendered in the city"⁷ compared to all gross revenue.

This case involves tax years 2010-2014 (the subject years). The parties agree on the computation of the first two factors (the property factor and the payroll factor), but disagree as to the computation of the sales factor. As noted, the dispute involves whether to interpret the § 23 phrase "services rendered" as referring to where the client receives the services (petitioner’s interpretation) or where the work is performed (respondent’s interpretation). Specifically, petitioner states that it calculated its in-city gross revenue by summing the gross revenue collected from clients located within the city of Detroit. According to petitioner, it had used this methodology in the past, but it was not until the subject years that the city objected and calculated the sales factor on the basis of the billable hours recorded for work performed within the city, regardless of the location of the client. The difference is not insignificant.⁸ For the subject years, under the city’s methodology, slightly over 51% of petitioner’s gross revenue would be considered in-city, while under petitioner’s methodology, it would be slightly less than 11%.⁹

In the Tax Tribunal, the parties filed cross-motions for summary disposition. The administrative law judge (ALJ) determined that § 23 was ambiguous and unclear. The ALJ concluded that because services are intangible, they cannot be delivered in the same manner as tangible property and that there was no reason to overrule the city’s construction of the statute. Initially, we note that both parties agree that the tribunal erred by determining that § 23 is ambiguous.¹⁰ Of course, they offer differing interpretations of the statute. But, as an initial matter, we agree that the statute is unambiguous. Accordingly, we must interpret the plainly expressed meaning of the statute as contained in the words used by the Legislature.¹¹ And we conclude that the plainly expressed meaning does not support respondent’s position or the conclusion of the Tribunal.

We begin by observing that the Legislature used two different terms in drafting the payroll factor under § 22 and the sales factor under § 23. The payroll factor refers to "services performed," and § 23 refers to "services rendered." We agree with petitioner that these phrases must be given two different meanings because when the Legislature uses different words, the words are generally intended to connote different meanings. Simply put, ‘the use of different terms within similar statutes generally implies that different meanings were intended.’ 2A Singer & Singer, Sutherland Statutory Construction (7th ed.), § 46:6, p. 252. If the Legislature had intended the same meaning in both statutory provisions, it would have used the same word."¹² Therefore, because § 22 refers to where the work is done or performed, the Legislature likely intended that the § 23 phrase "services rendered" have a different meaning.

The tribunal deals with this issue by also noting the directive of the Supreme Court in G C Timmis & Co. v. Guardian Alarm Co .¹³ that statutory

language does not stand alone, and thus it cannot be read in a vacuum. Instead, "[i]t exists and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute ...." Arrowhead Dev. Co. v. Livingston Co. Rd. Comm., 413 Mich. 505, 516, 322 N.W.2d 702 (1982). "[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole." Gen. Motors Corp. v. Erves (On Rehearing), 399 Mich. 241, 255, 249 N.W.2d 41 (1976) (opinion by COLEMAN , J.). Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context. McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) ; Hagen v. Dep’t of Ed., 431 Mich. 118, 130–131, 427 N.W.2d 879 (1988). "In seeking meaning, words and clauses will not be divorced from those which precede and those which follow." People v. Vasquez, 465 Mich. 83, 89, 631 N.W.2d 711 (2001), quoting Sanchick v. State Bd. of Optometry, 342 Mich. 555, 559, 70 N.W.2d 757 (1955). "It is a familiar principle of statutory construction that words grouped in a list should be given related meaning."

Third Nat’l Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 322, 97 S.Ct. 2307, 53 L.Ed.2d 368 (1977) ; see also Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994). [Alterations in original.]

In our view, however, this strengthens, rather than weakens, petitioner’s interpretation. While the Legislature does not give much direct guidance in § 23 to the meaning of "services rendered," it does give explicit guidance to "sales made in the city." MCL 141.623(1) provides, in part, as follows:

For the purposes of this section, "sales made in the city" means all sales where the goods, merchandise or property is received in the city by the purchaser, or a person or firm designated by him. In the case of delivery of goods in the city to a common or private carrier or by other means of transportation, the place at which the delivery has been completed is considered as the place at which the goods are received by the purchaser.

The following examples are not all inclusive but may serve as a guide for determining sales made in the city:

(a) Sales to a customer in the city with shipments to a destination within the city from a location in the city or an out-of-city location are considered sales made in the city.

(b) Sales to a customer in the city with shipments to a destination within the city directly from the taxpayer’s in-city supplier or out-of-city supplier are considered sales made in the city.

(c) Sales to a customer in the city with shipments directly to the customer at his regularly maintained and established out-of-city location are considered out-of-city sales.

(d) Sales to an out-of-city customer with shipments or deliveries to the customer’s location within the city are considered sales made in the city.

(e) Sales to an out-of-city customer with shipments to an out-of-city destination are considered out-of-city sales.

There is a very obvious common thread here: what is relevant is not the location of the taxpayer (or even the customer), but the destination of the goods. If the destination is within the city, then it is a sale made in the city. If the destination is outside the city, then it is not a sale within the city. This employs a "destination test" for the sales factor.¹⁴

Returning to the meaning of the word "render," petitioner supplies a contemporary definition of the word from the 1969 edition of Webster’s Seventh New Collegiate Dictionary,¹⁵ wherein the relevant definition of "render" is "to transmit to another: DELIVER." This is in contrast to the Tribunal’s opinion, which...