118 Mich. App. 65 | Mich. Ct. App. | 1982
Plaintiff appeals as of right from an order of the trial court granting defendant’s motion for accelerated judgment pursuant to GCR 1963, 116.1(2).
Plaintiff commenced this action on September 19, 1980. He alleged that he is president of Cuzco Precision Products, Inc. (Cuzco), which was incorporated in 1970. In July, 1979, defendant issued a withholding tax assessment against Cuzco in the amount of $7,313.14. A second withholding tax assessment of $2,248.92 was issued against Cuzco in January, 1980. Cuzco failed to satisfy those assessments.
On January 16, 1980, an involuntary petition in bankruptcy was filed against Cuzco. After Cuzco failed to pay the assessments, the defendant issued two corporate officer-liability assessments against plaintiff on May 12, 1980. In count I of his com
On January 14, 1981, defendant moved for accelerated judgment, claiming that the circuit court lacked subject matter jurisdiction to entertain plaintiff’s claims since plaintiff had failed to exhaust his administrative remedies prior to initiating the circuit court action. Plaintiff filed an affidavit in opposition to defendant’s motion, in which he claimed that he had no administrative remedies available since defendant had failed to notify him of the assessment until after the time had passed for filing an administrative appeal. Plaintiff claimed that the defendant sent notices of its intention to assess plaintiff personally by registered mail addressed to plaintiff at 460 East Frank, Fowlerville, on April 21, 1980, and May 12, 1980. He claimed that both notices were returned unclaimed. He alleged that he had not lived at the above address since 1972, but had resided at 515 West Highland Road in Howell from 1972 through 1978 and at 2095 Brighton Road in Howell from 1978 until the time of the hearing. Furthermore, plaintiff claimed that his income tax returns filed with defendants since 1972 informed defendant that he no longer resided at the Fowlerville address. Finally, plaintiff alleged that he received no
The trial court did not address the issues raised by the plaintiff concerning the notice requirement or defendant’s right to assess a corporate officer personally for the corporation’s failure to pay withholding taxes. Instead, it ruled that the plaintiff was required to pursue his administrative remedies prior to seeking relief in circuit court. Therefore, it granted defendant’s motion.
The circumstances in the instant case are similar in some respects to those in Dep’t of Treasury v Sperandeo, 112 Mich App 337; 315 NW2d 863
The instant case is distinguishable in that the corporate officer is the plaintiff here, seeking injunctive relief. Because of this, his failure to exhaust administrative remedies precludes him from obtaining relief in the circuit court. Id., 342.
Plaintiff asserts that no administrative remedies are available. While this may be true, we note that plaintiff has made no attempt to seek relief before the Tax Tribunal or the Court of Claims, but has unilaterally assumed that any claim he makes will be barred by reason of the expiration of the time period for appeals set forth in MCL 205.22; MSA 7.657(22). Plaintiff further claims that he is not appealing the assessments but is merely seeking to prevent the defendant from interfering with his property. To accept plaintiff’s views in these matters at this point would circumvent the statutory scheme which has been provided by the Legislature for the resolution of disputes over tax assessments. The questions of whether the tax assessment is void for lack of proper notice and whether a corporate officer may be assessed for withholding taxes under the circumstances of this case should
We disagree with plaintiffs assertions that Craig v Detroit Police Dep't, 397 Mich 185; 243 NW2d 236 (1976), allows the circuit court to give relief in the instant case. Craig deals with the question of jeopardy assessments where a taxpayer’s property is subject to seizure without prior notice or an opportunity to be heard.
Although we are disturbed by the fact that there appears to be no factual basis for the assessment in the instant case, we feel compelled to respect the procedure set forth by the Legislature for contesting the validity of tax assessments.
We note also that there is no indication in the instant case that plaintiff is unable to meet the requirement of MCL 205.22; MSA 7.657(22) that the assessment be paid prior to the initiation of proceedings in the Court of Claims. Furthermore, if a taxpayer chooses to proceed in the Tax Tribunal, only that part of the assessment which is undisputed need be paid in order to contest the assessment. In the instant case, the entire amount is in question and no payment would be needed in order to proceed in that forum.
Affirmed.