Queen Airmotive, Inc. v. Michigan Dept. of Treasury, Revenue Division

• Decision Date: 08 April 1981
• Docket Number: Docket No. 50166
• Parties: QUEEN AIRMOTIVE, INC., Plaintiff-Appellee, v. MICHIGAN DEPARTMENT OF TREASURY, REVENUE DIVISION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 461

306 N.W.2d 461

105 Mich.App. 231

QUEEN AIRMOTIVE, INC., Plaintiff-Appellee, v. MICHIGAN DEPARTMENT OF TREASURY, REVENUE DIVISION Defendant-Appellant.

Docket No. 50166.

Court of Appeals of Michigan.

April 8, 1981.

Released for Publication June 16, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John W. Jackson, Jr., Asst. Atty. Gen., for defendant-appellant.

Herbert E. Phillipson, Jr., Dowagiac, for plaintiff-appellee.

Before DANHOF, C. J., and MAHER and BEASLEY, JJ.

MAHER, Judge.

Defendant appeals by right the order of the trial court remanding this cause to the Tax Tribunal for a determination on the merits.

Plaintiff is a Michigan corporation operating an air taxi service. In August of 1975 defendant issued a tax determination showing plaintiff to be liable for $20,880 in use taxes in connection with the purchase of a 1972 Beechcraft airplane. In September of the same year plaintiff petitioned the State Board of Tax Appeals (SBTA) for a review of that determination and the matter was heard on June 3, 1976. Over two and one-half years later, on January 11, 1979, the SBTA affirmed the determination. A petition for rehearing was denied by the SBTA shortly thereafter. On July 3, 1979, plaintiff filed a motion for leave to file a delayed appeal in the Ingham County Circuit Court. Argument in the trial court centered on whether the circuit court properly had jurisdiction, but by opinion dated January 25, 1980, and order dated February 25, 1980, the trial court sua sponte remanded the cause to the Tax Tribunal on the basis that the SBTA had lacked authority and jurisdiction to determine the matter.

At issue in this case is § 79 of the Tax Tribunal Act, ¹ which sought to transfer jurisdiction over the appeals of various forms of tax assessments to the newly created Tax Tribunal. M.C.L. § 205.779(2); M.S.A. § 7.650(79)(2). ² Jurisdiction over these matters had previously rested with various courts and boards, including the SBTA. Section 79(3) provided that appeals formerly filed with the SBTA should continue to be filed there until December 31, 1976, and further provided that the SBTA be abolished as of December 31, 1977, on which date any appeals still pending before the SBTA were to be transferred to the Tax Tribunal:

"Cases appealable to the state board of tax appeals and corporation tax appeal board shall continue to be filed with those boards until December 31, 1976. All such appeals commencing after December 31, 1976 shall be made to the state tax tribunal. Any appeals pending before the state board of tax appeals and the corporation tax appeal board shall be transferred to the tribunal on December 31, 1977, and the boards are abolished as of such date." M.C.L. § 205.779(3); M.S.A. § 7.650(79)(3). (Emphasis added.)

On December 10, 1976, pursuant to a request by the state treasurer, the Attorney General rendered an opinion ³ which concluded that § 79 of the Tax Tribunal Act violated Const.1963, Art. 4, § 25, which provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length."

In the opinion of the Attorney General, § 79 was unconstitutional because it drastically altered the previous methods of review spelled out in specific tax statutes without those methods having been separately repealed. The Attorney General concluded that other sections of the Tax Tribunal Act effectively granted the new Tax Tribunal jurisdiction over property and single business tax matters but that § 79 was invalid and therefore failed to transfer such jurisdiction over matters involving the taxes mentioned in § 79. He further concluded that the Legislature did not intend to abolish the SBTA unless that board's jurisdiction had been effectively transferred and that, accordingly, § 79(3) did not operate to abolish the SBTA as it purported to do. As a result of the Attorney General's opinion the Tax Tribunal and the SBTA both continued to function, each exercising jurisdiction over matters concerning their respective taxes.

The trial court held that the opinion of the Attorney General was in error and we agree. Section 79 is not an attempt to actually amend, alter, or revise another statute by reference to its title only. While other statutes are mentioned in § 79(2), there is no attempt made to actually amend, alter, or revise any of those statutes in the Tax Tribunal Act. Section 79 is part of an act complete in itself. While the act produces certain amendments and repeals of other statutes by implication, Const.1963, Art. 4, § 25 has not been held to invalidate amendments or repeal by implication. ⁴ Accordingly, § 79 does not violate Const.1963, Art. 4, § 25. Advisory Opinion re Constitutionality of 1972 P.A. 294, 389 Mich. 441, 469-477, 208 N.W.2d 469 (1973); People v. Mahaney, 13 Mich. 481 (1865). See Eyde v. Lansing Twp., 79 Mich.App. 358, 261 N.W.2d 321 (1977), rem'd to the Tax Tribunal on other grounds 402 Mich. 950j (1978); Detroit v. Jones & Laughlin Steel Corp., 77 Mich.App. 465, 258 N.W.2d 521 (1977), lv. den. 404 Mich. 805 (1978).

Although we agree with the trial court's holding that § 79 is constitutional, we do not agree with the trial court's conclusion that the decision of the SBTA in the instant case was rendered at a time when the Board was without authority and jurisdiction. While the opinion of the Attorney General is not binding on the judiciary, it was binding on the defendant. See the last paragraph of footnote 2 in Traverse City School Dist. v. Attorney General, 384 Mich. 390, 410, 185 N.W. 9 (1971); People v. Penn, 102 Mich.App. 731, 302 N.W.2d 298 (1981). After the opinion of the Attorney General, and perhaps because of it, the Legislature enacted several statutes inconsistent with the intent to abolish the SBTA which had been demonstrated by § 79(3). Although § 79(3) purported to abolish the SBTA as of December 31, 1977, funds were appropriated for the SBTA on a year-by-year basis through September 30, 1980. 1977 P.A. 98, 1978 P.A. 402, 1979 P.A. 111. The last of these appropriations indicated not only an intent to continue the SBTA as a legally constituted body, but also an intent to continue the jurisdiction of the Board, by stating that "(t)he state board of tax appeals is a quasi-judicial board that adjudicates appeals from tax decisions rendered by administrative officials within the department". In addition, 1980 P.A. 162 acknowledged the continuing jurisdiction of the SBTA by providing for the disposition of certain appeals taken to the SBTA prior to the effective date of that act and by providing that matters which had been heard by the SBTA on or before January 1, 1981, be completed by the SBTA before December 31, 1981. 1980 P.A. 162 was part of a series of recent statutory enactments which reflect the Legislature's acquiescense in the Attorney General's opinion. See 1980 P.A. 162 through 1980 P.A. 169. Because the Attorney General had held that § 79 was not effective in transferring jurisdiction to the Tax Tribunal with regard to the various taxes mentioned in that section without specific repeal of the review procedures contained in the various tax statutes, the new enactments substantially amended those tax statutes and repealed those provisions which provided specific methods of review. 1980 P.A. 162 also provided that review of assessments made by the Department of Treasury would in the future be handled by the Tax Tribunal or the Court of Claims and repealed M.C.L. §§ 205.7-205.9; M.S.A. §§ 7.657(7)-7.657(9), which contained provisions for the membership, jurisdiction, and procedure of the SBTA. Taken together, these enactments clearly indicate that the intent of the Legislature in the face of the opinion of the Attorney General was to continue the existence and jurisdiction of the SBTA up to and beyond the date of the decision in the instant case. Accordingly, we hold that the SBTA had the authority and jurisdiction to issue its decision in the instant case, notwithstanding the provisions of § 79(3). As a result, the trial court erred in remanding this cause to the Tax Tribunal for a decision on the merits.

The remaining question is: Where does plaintiff now take its appeal from the decision of the SBTA? In answer to this question, the Legislature has provided in 1980 P.A. 162, § 4:

"This amendatory act shall take effect 90 days after signature by the Governor. All new appeals from an assessment, decision or order of the department shall be made to the tax tribunal effective with the effective date of this act. An appeal to the state board of tax appeals filed prior to the effective date of this act shall proceed as follows :

"(a) A matter which has not been heard on or before January 1, 1981 shall be transferred to the tax tribunal as of January 1, 1981.

"(b) A matter which has been heard on or before January 1, 1981 shall be completed by the board and a decision issued before December 31, 1981.

"(c) An appeal having been filed in any court of record in this state prior to January 1, 1981 shall proceed in those courts until a decision is rendered. ...