Topps of Warren, Inc. v. City of Warren

• Decision Date: 01 October 1970
• Docket Number: Docket No. 8131,No. 2,2
• Citation: 27 Mich.App. 59,183 N.W.2d 310
• Parties: TOPPS OF WARREN, INC., a Michigan corporation, Plaintiff-Appellant, v. CITY OF WARREN, a Michigan municipal corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 310

183 N.W.2d 310

27 Mich.App. 59

TOPPS OF WARREN, INC., a Michigan corporation, Plaintiff-Appellant, v. CITY OF WARREN, a Michigan municipal corporation, et al Defendants-Appellees.

Docket No. 8131.

Court of Appeals of Michigan, Division No. 2.

Oct. 1, 1970.

Released for Publication Feb. 12, 1971.

Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, for plaintiff-appellant.

Sherman P. Faunce, Warren, for defendants-appellees.

Before LESINSKI, C.J., and QUINN and ROOD, ^* JJ.

LESINSKI, Chief Judge.

This action was commenced by plaintiff, Topps of Warren, Inc., to recover taxes paid under protest pursuant to an upward revaluation of its personal property by the State Tax Commission. After summary judgment was granted defendants, and a subsequent motion for reconsideration by plaintiff was denied, the plaintiff appealed. The facts have been stipulated.

In June, 1967, the assessing officer for the city of Oak Park petitioned the State Tax Commission for an investigation of the personal property valuation of Topps-Stillman, Inc., a Michigan corporation with one store in Oak Park and another in Redford Township, averring that the value had been understated. Topps-Stillman, Inc., and plaintiff Topps of Warren are two of ten separate but wholly owned corporate subsidiaries of Interstate Department Stores, Inc., a foreign corporation. No petition for such investigation was filed by the assessing officer in Warren or any other taxing district in the State.

However, the State Tax Commission adopted a resolution on June 28, 1967 to review the personal property assessment of All Topps stores in Michigan, and at a later hearing increased the personal property tax assessements of all ten corporate subsidiaries. This action resulted in a $8,992.15 increase in taxes due from Topps of Warren.

The central issue raised on appeal is whether the State Tax Commission had authority to initiate proceeding to revise the personal property assessments of Topps of Warren on the 28th of June.

Plaintiff contents that the jurisdiction of the State Tax Commission is purely statutory, that the statutes must be strictly construed, and that if the commission had jurisdiction it lost it through the passage of time. We agree. The State Tax Commission possesses only those powers conferred on it by statute. Detroit Edison Co. v. City of Detroit (1941), 297 Mich. 583, 298 N.W. 290. These statutes must be strictly construed. In In re Dodge Brothers (1928), 241 Mich. 665, 669, 217 N.W. 777, 779, the Court said, 'The scope of tax laws may not be extended by implication or forced construction. Such laws may be made plain, and the language thereof, if dubious, is not resolved against the taxpayer.'

There are five basic provisions under which the commission could proceed in this case. General supervision over supervisors and assessing officers is given under M.C.L.A. § 211.150 (Stat.Ann.1970 Cum.Supp. § 7.208), and M.C.L.A. § 209.104 (Stat.Ann.1960 Rev. § 7.634). The commission may inspect assessment rolls and revalue improper valuations under M.C.L.A. § 211.152 (Stat.Ann.1970 Cum.Supp. § 7.210). It also has the power to investigate and correct irregularities arising from incorrect or false statements of valuation under M.C.L.A. § 211.22 (Stat.Ann.1970 Cum.Supp. § 7.22).

But by explicit terms, these powers are limited as to time. The commission may inspect the assessment rolls on its own motion pursuant to the exercise of its general supervisory power but, 'in no case later than the first Monday in May.' M.C.L.A. § 211.152, Supra. Since the commission failed to act on its own motion until after that date, that statutory exercise of power was foreclosed.

The only other provision implementing the supervisory jurisdiction concerns cases of incorrect or false statements of valuation. M.C.L.A. § 211.22, Supra, reads as follows:

'Whenever examination and investigation reveal that the written statement of personal property is incorrectly made, that any data submitted is false, or that certain personal property has been omitted from the statement, The supervisor or assessing officer may petition the state tax commission to revise the personal property assessment of the person submitting such erroneous statement, if the petition is filed on or before June 30 of each year. Any taxpayer who has incorrectly filed an over-stated property statement may revise such statement on or before June 30, and petition the tax commission to revise his assessment in accordance with law. The person to whom such personal property is assessable shall be granted the opportunity of a hearing.' (Emphasis supplied.)

Admittedly, the petition filed by the Oak Park assessing officer was timely, and allowed the commission to revise the assessment of Topps-Stillman, Inc.

However, we agree with the plaintiff's contention that the plain meaning of the statute is that a petition from the assessor in one district does not grant jurisdiction to the commission to review property statements of Other taxpayers in different districts. A close reading of the statute reveals that the jurisdiction of the commission only gives power 'to revise the personal property assessment of The person submitting such erroneous statement' when The supervisor or Assessing officer has made a timely petition. (Emphasis supplied.) Since Topps-Stillman, Inc. and Topps of Warren are distinct corporate entities, and hence different 'persons,' the petition of the Oak Park assessor could not extend the commission's jurisdiction to Topps of Warren.

We reach the above conclusion notwithstanding the argument of defendant that, under M.C.L.A. § 211.150, Supra, the commission Could have 'advised' the various local assessors involved to petition for examination of Topps of Warren, etc.'s statements. ^** However, the failure to so do is fatal to defendants' position. In re Dodge Brothers, Supra, at p. 669, 217 N.W. 777.

Reversed and remanded for proceedings not inconsistent with this opinion. Costs to plaintiff.

QUINN, Judge (dissenting).

I am unable to agree with the majority opinion. Topps of Warren and the other nine corporate subsidiaries of Interstate Department Stores in Michigan are not...