337 N.W.2d 343 | Mich. Ct. App. | 1983
COATES
v.
ATTORNEY GENERAL
Michigan Court of Appeals.
Dykema, Gossett, Spencer, Goodnow & Trigg (by Donald S. Young and M. Teresa D'Arms), for plaintiff.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Harry G. Iwasko, Jr., Wallace T. Hart, and William A. Chenoweth, Assistants Attorney General, for defendant.
Before: M.J. KELLY, P.J., and CYNAR and G.R. COOK,[*] JJ.
SUPPLEMENTAL OPINION
PER CURIAM.
In this cause a motion for clarification of the Court's opinion released November 2, *373 1982, was filed jointly by all parties, and due consideration thereof was had by the Court.
The motion for clarification was granted for the limited purpose of answering the following questions. Otherwise the motion for clarification was denied.
Question No. 1:
May the Insurance Commissioner, on receipt of plaintiff's articles of incorporation from the Attorney General in accordance with this Court's mandamus, conduct an investigation, prior to permitting incorporation, into matters not expressly specified by MCL 500.5024; MSA 24.15024 or MCL 500.5040; MSA 24.15040, viz., the business or other motivation for incorporation, and may the Insurance Commissioner base a decision to deny incorporation on a finding, if made, of tax avoidance motivation?
The presently constituted majority answers this question in the negative.
Question No. 2:
Does the Insurance Commissioner have authority to conduct an investigation to determine if the proposed domestic insurer is merely a sham designed to permit it to enjoy tax advantages intended only for true domestic insurers?
The presently constituted majority answers this question in the affirmative but subject to the limitations as expressed in the concurring opinion previously issued.
CYNAR, J. (dissenting).
I respectfully dissent. I would answer Question No. 1 in the affirmative. Further, I would answer Question No. 2 in the affirmative without any qualification.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.