Grimm v. Department of Treasury
291 Mich. App. 140
| Mich. Ct. App. | 2010Background
- Petitioner is a corporate officer of Affiliated Insurance Agency; the Department assessed over $1 million in unpaid corporate taxes for 2006–2007 under MCL 205.27a(5).
- August 1, 2008 notice informed petitioner of the final assessment; petition was given to FedEx for overnight delivery on August 5, 2008, and the Tribunal received it the next day.
- December 16, 2008 the Tribunal defaulted petitioner for lack of service and missing assessment numbers; after proof of service on December 31, the Tribunal still dismissed on January 8, 2009 for cure failure.
- February 19, 2009 petitioner received the assessment numbers; March 9, 2009 filed the numbers; March 12, 2009 the parties sought abeyance; March 26, 2009 the Tribunal denied abeyance and deemed the petition untimely.
- Petitioner argues timeliness should be assessed under MCL 205.735a(7) due to FedEx delivery; the Court reverses the dismissal for untimeliness and remands for further proceedings; the Court also finds abuse of discretion in the dismissal for failure to cure the default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition was timely filed under MCL 205.735a(7)(c). | Petitioner: timely because FedEx delivered by deadline. | Treasury: petition untimely as filed after the deadline. | Petition timely under MCL 205.735a(7)(c). |
| Whether the Tribunal abused its discretion by dismissing for failure to cure the default within 21 days. | Petitioner: noncompliance was minor and nonprejudicial; no willful delay. | Treasury: dismissal proper for failure to cure. | Tribunal abused its discretion; dismissal reversed. |
| Whether the Tribunal’s interpretation of designated delivery service timing was correct under MCL 205.735a(7) and Tribunal Notice 2006-5. | Petitioner: statute unambiguous; timely when given to FedEx by deadline and delivered by FedEx. | Treasury: Tribunal's interpretation governs. | Designated delivery service timing interpreted to permit timely filing if given to service by deadline and delivered by that service. |
Key Cases Cited
- Alvan Motor Freight, Inc v Dep’t of Treasury, 281 Mich App 35 (2008) (de novo review; statutory interpretation of filing deadlines)
- Kmart Mich Prop Servs, LLC v Dep’t of Treasury, 283 Mich App 647 (2009) (statutory construction; filing deadlines under MCL 205.735a)
- Mt Pleasant v State Tax Comm, 477 Mich 50 (2007) (statutory interpretation where language unambiguous)
- Lansing Mayor v Pub Serv Comm, 470 Mich 154 (2004) (statutory interpretation; administrative agency interpretation favored)
- Beznos v Dep’t of Treasury (On Remand), 224 Mich App 717 (1997) (deference to Tribunal interpretation of statute; precedential value)
- Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501 (1995) (adopts factors for sanctions akin to Vicencio for Tribunal dismissals)
- Bass v Combs, 238 Mich App 16 (1999) (adoption of Vicencio-like considerations for sanctions by Tribunal)
- Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC), LCC, 481 Mich 618 (2008) (sanctions and dismissal standards; higher court commentary on sanctions)