United States v. State of Michigan

indеmnity provi- City’s contract tion Brady, we believe with sion may also district court by the

law cited attorney recovery of City’s

preclude In of this rationale. on the basis

fees district court

event, that the we conclude attorney denying in error

was not

fees. court’s decision district AFFIRM the American, (and surety) Brady We RE- perform. its failure

liable for

MAND, however, proper determina- for a rea- with the damages consistent AF- Finally, we forth. herein set

sons attorney denial of district court’s

FIRM the Detroit. City of

fees to the America,

UNITED STATES

Plaintiff-Appellee, MICHIGAN,

STATE OF

Defendant-Appellant. 87-1858.

No. Appeals, States Court of Circuit.

Sixth

Argued April 1988. July

Decided 23,1988. Aug.

Rehearing Denied complaint,

The request filed at the of the Administration, National Credit Union agency, sought declaratory judg- Michigan’s ment that sales tax law violated Supremacy Clause because it effective- ly purchases taxed made federal credit Michigan. unions in The United States al- leged that the law was unconstitutional because federal credit unions are federal instrumentalities entitled to the same im- munity from state taxation as the United States. the United States Roesch, Ward, Richard R. Robert C. ar- claimed, because the incidence of this gued, Office, Atty. Lansing, Mich., Gens. purchaser, sales tax falls on the defendant-appellant. for could not be constitutionally imposed on Smietanka, John A. Atty., Grand purchases by federal credit unions. The Rapids, Mich., Correa, Richard A. Tax Div.- alleged United States also that the state’s Dept. Justice, (Lead), Paup Michael L. sales tax unconstitutionally statute discrim- Chief, Sеction, Appellate Michael Dur- C. against inates the United States that no ney, Gen., Acting Atty. Div., Asst. exemption from the tax is extended to fed- Justice, Rose, Dept, of Gary William S. R. eral credit unions while and its Allen, Carmack, David E. John J. McCar- exempt institutions are from the sales tax. thy, argued, Justice, Dept, Div., granted The district court the United D.C., Washington, plaintiff-appellee. for partial States’ motion for summary judg- Michigan’s summary ment and denied judg- MARTIN, WELLFORD, Before held, first, ment motion. The court NELSON, Judges. Circuit Injunction Act, the Tax 28 U.S.C. § preclude did not it asserting jurisdic- MARTIN, Jr., BOYCE F. Circuit tion over the case. The court then held Judge. that federal credit unions in- are federal Michigan appeals State of the dis- strumentalities immune from state taxation trict court’s declaring decision unconstitu- Next, Supremacy under the Clause. provisions tional certain district court concluded that the inci- Act, General Sales Tax Mich.Comp.Laws dence of sales tax falls on the seq. 205.51 et The court held that the that, purchaser, therefore, the law un- incidence of the tax levied under this stat- constitutionally imposed a tax on federal ute falls on federal credit unions which the instrumentalities. Finally, the court found court concluded were federal instrumentali- six-year that the statute of limitations for ties immune from state taxation under the actions recovery States for Supremacy Clause of the United States monies, set forth in 28 U.S.C. § F.Supp. Constitution. 635 case, applies to this rather than the state’s affirm. four-year statute of limitations for tax re- fund cases. The court concluded brought The United States action holdings, of these it need not consider federal district court on approxi- behalf of argument, United States’ alternative mately federally-chartered credit un- tax, applied, that the sales unconstitu- ions located in Michigan. A federal credit tionally against discriminates non-profit, cooperative union is a associa- unions. organized under the Federal Credit Act, Union seq., 1752 et “for parties subsequently stipulated purpose promoting among thrift refund, amount of the calcu- creating members and a source of 1, 1986, $2,781,646.67, July lated as of was provident for productive purposes.” plus Id. interest. On June the dis- 1752(1). judgment trict court entered a final in ac- allegations stipulation. Michigan tion to determine that the with that cordance relief, appeals. complaint ground do not state a now then dismissal of the case be on the would challenges the dis Michigan first merits, jurisdiction.” not for want or jurisdiction. trict court’s Under 682, 66 S.Ct. at 776. 1345, origi federal district courts “have actions, recognized suits or jurisdiction only excep- nal of all civil The Court two principle: commenced proceedings alleged tions to this where the however, argues, that Michigan States.” claim under the Constitution or federal Act, Injunction prohibits which fed the Tax clearly statutes is immaterial and made suspend enjoining, eral courts from solely district jurisdiction; to obtain or where the assessment, restraining levy “the or ing, or wholly claim is insubstantial and frivolous. where any collection of tax under State law 682-83, at Id. 66 S.Ct. at 776. did may speedy remedy and efficient plain, argue and could not not that either of these State,” 28 in the courts of such be had Therefore, exceptions applicable here. 1341, precludes the United States correctly the district court ruled that the maintaining this action. The state from Injunction Act did not bar the United not recognizes that the United States is action, maintaining States from if the federal subject to this limitation jurisdiction the сourt exercised challenging the constitution government is over this case under 28 U.S.C. being ality a state tax levied on Michigan’s jurisdictional challenge agencies one of its United States or on unavailing of our decision is also instrumentalities, see, Dep’t e.g., Em regarding the status of federal credit un 355, States, 385 U.S. ployment v. United ions. The state contends that the district (1966), 414 17 L.Ed.2d but S.Ct. erroneously court concluded that federal jurisdictional that this de claims credit unions are federal instrumentalities depends upon finding termination immunity from state taxation. entitled are, fact, credit unions federal fеderal persuaded. are not instrumentalities. In the famous case of McCulloch v. Ma- for it position is untenable (4 Wheat.) 316, 4 L.Ed. 579 ryland, 17 U.S. jurisdictional conflates a issue and sub- (1819), established the determination. The Court stantive immunity from state refuted a similar Bell v. doctrine of Court case, held Hood, In that the Court 90 L.Ed. taxation. 327 U.S. S.Ct. consent, case, Congressional the federal In that the defendants absent are government and its instrumentalities argued prop- had that the district court had under the Su- plaintiff’s complaint for immune from state taxation erly dismissed the of the Constitution. Id. jurisdiction premacy it failеd Clause lack of federal because Congress clearly consented to state re- has not to state a cause of action. court unions; versed, complaint of federal credit holding that whether the taxation expressly prohibit- contrary, Congress has only be decided stated a valid claim could unions, after, before, of federal credit the district court had ed state taxation and not taxation of real controversy. except for ad valorem jurisdiction over the assumed 1768.1 personal property. jurisdic- exercise its “If the court dоes later Agricultural Bank v. State provides part National that "Federal In First 1. Section 1768 ..., property, their franchis- S.Ct. credit unions es, their funds, reserves, surpluses, capital, and other concluded that a the Court L.Ed.2d 1138 exempt all taxa- and their income shall statutory exemption it ‍‌​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌‌‌​‌​​​‍unnec- rendered similar imposed by the United tion now or hereafter essary Court to reach the constitutional for the State, Territorial, by any or local tax- States or question banks are nontaxa- of whether national authority; except property ing real federal instrumentalities. ble any tangible personal property of such Federal Here, however, compelled to we are at 2175. State, Federal, unions shall be credit the status of federal the issued because resolve Territorial, to the same extent and local taxation analysis of a subse- unions affects the property as other similar is taxed.” (1935)), if federal credit unions are fed- L.Ed. 1408 “[t]hrough instrumentalities, they eral are entitled to government land banks the federal makes constitutional, as, statutory, as well immu- possible the extension of credit on liberal nity from state taxation. terms to farm borrowers.” Federal Land Co., Bank v. Bismarck Lumber Unfortunately, simple “there is no test Thus, at 5. ascertaining whether an institution is unions, provide public which a similar ser- closely governmental activity so related to vice to a broader cross-section of the na- as to become a tax-immune instrumentali- citizens, perform tion’s ty.” also Dep’t Employment v. United 358-59, governmental 385 U.S. at function. S.Ct. at 467. leading suggest cases that we examine Michigan attempts to divert our attention purpose the for which federal credit unions from this arguing fundamental fact that created, were thаt we determine whether longer federal credit unions are no the function, they perform to continue that and small, simple thrift institutions that the government’s that we assess federal sponsors of the Federal Credit Union Act control over and involvement with these intended to create. The state contends organizations. coopertives because these now offer a significant in determining One factor variety of increasingly-sophisticated finan- particular a entity whether is a federal services, essentially cial those also offered instrumentality perfоrms is whether it an banks, by private federal credit unions do important governmental function. See not deserve instrumentality tax-immune Federal Land Bank v. Bismarck Lumber status. This persuasive is not Co., 62 S.Ct. 86 L.Ed. 65 because the conclusion does not necessarily (1941). During depths Depres- premise. Merely follow from the because sion, many problems two plaguing federal credit unions have added other fi- the national economy were scarce credit nancial services to attract more members high and In interest rates. order to deal competitive and remain types with оther problems, Congress with these authorized financial institutions does not undermine the establishment of federal credit unions. the central fact: federal credit unions were S.Rep. (1934). Cong., No. 73d. 2d Sess. designed perform per- to and continue to cooperative These associations were de- important governmental form an function. signed encourage average and enable Federal perform credit unions also anoth- pool citizens to their Through resources. er, though significant, somewhat less fed- unions, therefore, the federal eral function. Undеr U.S.C. fed- § government makes credit available on lib- eral credit unions are authorized to act eral terms and at low rates of interest to agents fiscal of the United States and as who, middle-class they Americans depositories public money. Those func- frequently adequate lack security, might recognized by Supreme tions have been otherwise have to turn to small loan finan- important purposes Court as of the federal ciers who can extort excessive interest government. v. City See Smith Kansas unexpected rates in times of need. Co., 180, 209-11, Title & Trust In Federal Lаnd Bank v. Bismarck 243, 248-49, (1921). S.Ct. 65 L.Ed. 577 Co., Lumber Court held that In addition to this interaction with the virtually-identical a fiscal function was in government, federal federal dicative of credit unions instrumentality tax-immune sta extensively regulated are under tus. The Court concluded federal that federal land “ ‘instrumentalities, seq. law. engaged banks were See et Such sweeping performance important govern regulatory supervision of an was found ” function,’ especially significant by mental 314 U.S. at to be at 5 (quoting Federal Land Bank v. Prid Court in City Smith v. Kansas Title & 229, 231, dy, 295 U.S. 55 S.Ct. Admittedly, many Trust Co. other busi- issue, quent appropriate statute of limita- tiоns. however, holding, does not dis reg to extensive are

nesses Michigan concedes appeal. of this pose granted not tax-immune yet are ulation if the the sales tax is unconstitutional that enter Few such instrumentality status. upon the of the tax falls incidence legal however, following fea have prises, A its intrumentalities. States or very existence they their that owe tures: unconstitutional, however, if the is not organization that their Congress; act of party tax falls incidence of the satisfy requirements must certificates government and the federal deals with who statute, 12 U.S.C. specific federal of a the tax is merely economic burden of scope purpose 1754; their by that to the United States passed on 1752(1); law, 12 U.S.C. by federal defined example, consistent with its party. For regulatory subject to they are may im obligations, a state constitutional suspend or revoke authority to agency with federal contractor who pose a tax on a involun them into place charters their payment this tax subsequently recovers 1766(b)(1). liquidation, tary price. charging higher the United States Union Gold Credit Tabco Federal See Co., Contracting v. Dravо James ¶ (CCH) 200-411 stein, Cases 1 Md.Tax 208, 82 L.Ed. 155 22, 1964). Md. June (Baltimore Cty.Cir.Ct., ‍‌​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌‌‌​‌​​​‍Michi if the incidence distinguished can be unions Federal credit retailer, the on the as gan’s sales tax falls enterprises in heavily-regulated other from contends, the law not vio then does state almost Whereas way. important another Thus, we must Supremacy Clause. the late any custom serve will private business all party legal the inci determine which credit each federal er, of “customers” the tax falls. dence of the members, “limited expressly union, are this Michigan’s suggestion, Contrary to of occu having common bond groups In its question. presents a federal issue association, groups within or pation of the brief, on decisions Michigan relies community, or neighborhood, well-defined have held Supreme which Michigan Court 1759. U.S.C. 12 district.” § rural of the the incidence that See, e.g., the retailer. rests on sales are differ- unions credit Finally, federal Co., 397 Tire & Rubber v. Firestone Sims highly-regulated busi- many from other ent Federal (1976); 469, 245 13 Mich. N.W.2d ex- Congress expressly has in nesses that Dep’t Reve- Chicago v. Bank Reserve of of of all forms almost them empted (1954). nue, 587, 64 N.W.2d 339 Mich. and local taxation. state decisions, how- those need not follow that exemption suggests statutory This here is question the “Because ever. credit un- that federal Congress believes feder- tax affects whether sales] [state preserv- role important such an play ions limited for clear that immunity, it is al economy that national the health of the ing by the state are not bound purpose we must be government, the federal they, like First of the tax.” court’s characterization serve taxes which local from state and free Bank State National Agricultural narrow, parochial interests. more 347, Commission, 88 S.Ct. 392 U.S. (1968). See governmental 20 L.Ed.2d of thе Because Corp. v. State National Diamond also un- performed functions 268, 96 Equalization, Board unusual ions, of the extensive of denied, 780, reh'g 1530, 47 L.Ed.2d their cre- supervision of regulatory 48 L.Ed.2d 96 S.Ct. activities, of evi- and because ation they are fed- Congress believes that dence instrumentalities, hold that federal that we eral substantive retailer instrumentalities. on the are federal tax falls unions of the credit incidence rejects the are im- The state unions merit. Accordingly, federal also without consumer Clause, as as well Supremacy of characterization under mune it Rather, Michigan claims taxa- tax. from state sales under in return retailers on is a tax levied tion. privilege conducting of their businesses in the restated the test it estab- Court had Michigan. quotes Comp. The state Mich. Agricultural lished First Bank: “where 205.52, provides, part, Laws which requires passed a state that its sales tax be that an annual tax shall be “collected from purchaser on to the and collected persons engaged all in the of mak- business him, vendor from this establishes as a mat- ing privilege retail ... for the ter of law that the incidence of the engaging in that also business.” purchaser.” tax falls merely permits, notes that the but statute 95 S.Ct. at 1878. Court then found require, does not seller to reimburse implementing regulations that one of the expense by passing himself for his tax adequate legislature’s was evidence of the buyer. the financial burden to the Mich. intent which dictates outcome of this Comp.Laws 205.73. issue. 205.21(1) Regulation

Upon reviewing Michigan’s sales tax We believe that imple- Revenue, regulations Michigan Department statutes and the which tax, however, ¶ (CCH) 60-305, ment the we conclude Rep. Mich.Tax satisfies the clearly legisla- law the state state indicates regulation Court’s test. This ex- passed intent that the tax be on the ture’s pressly requires pass the seller to the sales therefore, view, purchaser. In our this tax purchaser: taxpayer tax on to the “A shall is a consumer sales tax the incidence of part selling include the sales tax as purchaser. which falls on the (em- price tangible personal property.” added). phasis regulation also de- Agricultural In First National Bank v. “may clares that a seller not advertise or public any manner, hold out to direct- 20 L.Ed.2d ly indirectly, that the tax is not con- Court, reversing Supreme a deсision of the price sidered as element the to the Massachusetts, Judicial Court of held that consumer,”2 Supreme The Court cited a legal the incidence of Massachusetts’ sales statutory prohibition support similar purchaser, though tax on fell the even the holding legal that the incidence of the party required by retailer was the law to upon pur- sales tax fell Massachusetts the pay the tax. The court reasoned that it Agricultural chaser. First National “indisputable was that a sales tax which Commission, Bank v. Tax at 347- passed purchas- its terms must be on to the 48, Michigan reg- at 2177-78. The S.Ct. imposes legal er the incidence of the tax ulation, therefore, evidences the state’s in- 347, upon purchases.” the at Id. S.Ct. passed pur- tent that the tax be on to the Therefore, concluded, at 2178. the Court chaser. wording “the the because clear of statute Legisla- that the Massachusetts [indicated] mandatory language If this were not suf- passed ture intended that this sales tax be compel pass along ficient to a retailer to purchaser,” legal on to the the incidence of transaction, every regulation the 348, purchaser. the tax fell on the also includes an economic inducement to do 88 S.Ct. at 2178. Michigan’s taxing so.3 Under sales scheme, a retailer must remit of his 4% regula- Court has a found sales, gross proceeds including any from implementing convincing a tax to be gross sales tax collected. If this total factor, evidence of controlling this the state tax, however, figure includes sales the re- legislature’s intent. In United States v. Mississippi tailer is allowed to deduct the sales tax 421 U.S. 599, 1872, (1975), S.Ct. L.Ed.2d 404 comput- to prior figure this from collected prohibition legal 2. This is also contained in the stat- stated that the incidenсe of the tax at issue Mich.Comp.Laws because, ute. See 205.73. purchasers fell on the even in the ab- sence of a clear statement in the statute as to suggested 3. Court has that eco- tax, legislature party which the intended to "eco- may party nomic realities dictate which compelled pass nomic realities to [the retailers] legal incidence of a tax falls. In United markup.” on the economic burden of the Mississippi, States v. Tax Commission 421 U.S. 8, at n. n. the Court ing compulsion pass the amount of tax which economic the retailer the tax on tо purchaser clearly if is must remit to state. But the retailer sufficient to cause legal incidence of the purchas does not collect sales tax from the tax to be on the purchaser. Thus, er, choosing merely because federal recoup instead unions are federal expense instrumentalities by charging higher business legal which the incidence of prices, he is not entitled to a deduction.4 falls, sales tax this tax is unconstitutional. profits, In order to maximize his after-tax therefore, a retailer collect will tax We must now determine the extent purchаser directly from the rather than recovery. of the The district court conclud expense absorb the cost as a business ed that the statute of limitations contained In United pass indirectly.5 on the tax 2415(a) applied to this action.6 States State Board California on behalf of Equalization, 650 F.2d 1127 (9th Cir.1981), unions, was entitled to recov aff'd, 102 S.Ct. 72 L.Ed. damages er as all ‍‌​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌‌‌​‌​​​‍sales taxes improperly denied, 2d 157 reh’g paid by these during six-year institutions 72 L.Ed.2d 864 the court con period prior to the commencement of this cluded this kind of economic incentive action. pass for the seller to direсtly sales tax on aspect also contests this purchaser to a was sufficient to cause the opinion. district court’s The state main- incidence of the tax to be on the four-year tains that period limitation

purchaser, though even the statute was provided in section 9 of the state’s General facially neutral party pay as to which must Act, Mich.Comp.Laws 205.59, Sales Tax the tax. apply. provision prevents should Here, claiming a “refund of taxing “taxpayer” scheme contains similar expira- after the incentives, language paid in the amount ecоnomic [state] payment.” years after the date tion of regulations implementing taxing statute’s argues passed on to the mandates actually seeking a refund be- States that such purchaser. We hold following price Regulation provides in- The first retailer adds sales tax to the 205.21 to how the retailer should calcu- goods purchase. structions as at the time of the Accord- late the tax: regulation, ingly, this is enti- under the retailer taxpayer's gross proceeds tled, effect, by dividing When the in to deduct the sales tax and when the sales include sales collected $10,000, rеsult, gross proceeds, by 104. The his $96.15, tax, gross proceeds, including the are entered multiplied arrive at the is then 4 to return, gross taxpayer the tax as may sales on remitting After this amount $384.60. 4% tax of gross the amount deduct from the sales state, proceeds the retailer is left with net to the therein, of tax included if it is shown as $9,615.40. separate taxpayer’s deduction on the return. however, retailer, does not direct- The second conditions, however, may Only under these Rather, ly pass purchaser. this the tax to the on taxpayer a deduction and then take such expense, the tаx as a business retailer absorbs only following manner: in along passes customers in he this cost to his sales, (a) including gross Show total Accordingly, higher prices. this the form of tax, opposite item no. 1 on the return. sales deduction under retailer is not entitled to the (b) from item no. 1 the amount of Subtract Regulation he must re- 205.21. deductions, excluding the the nontaxable $10,000, gross of his sales of mit to the state 4% statutory exemption, to arrive at the $50.00 retailer thus $400. or a tax of second net sales. $9,600, (c) only Divide the net sales as obtained less than the first $15.40 retains 1%, multiply by directly 4 to obtain to arrive at thеn to the passed the tax retailer who gross tax included in the the amount of the purchasers. sales, sepa- shall be shown as a which amount commencing as rate deduction on the return and described 6.Section entitled “Time for gross States,” included in sales.” "sales tax brought by provides, actions the United money part, "every pertinent action for example following a retail- illustrates how damages brought by the United States or collecting profits by his er maximizes agency thereof which is founded officer or required by regula- purchasers from the fact, express imрlied or or in law contract compare purpose, two tion. For this we will complaint filed is $10,000 shall be barred unless retailers, monthly with sales of both right ac- deductions, years of action within six after we will use and no nontaxable Michigan’s ” crues tax rate of 4%. .... half of federal credit unions and is not NELSON, DAVID A. Judge, Circuit seeking damages really to recover on its concurring. behalf, own this state statute of limitations I agree that judgment of the district apply. should affirmed, court must be but I sepa- write unavailing. Had we rately to note that because there is a stat- found that federal credit uniоns were not (12 1768) ute U.S.C. granting federal federal instrumentalities entitled to consti- credit unions exemption from taxes im- taxation, immunity tutional from state posed by taxing authorities, state I think it argument would have been attractive. is unnecessary to decide whether federal held, however, Having that federal credit credit unions are “federal instrumentali- instrumentalities, unions are federal we be- ties” enjoy that would exemption from lieve that this action the United States is state taxes even if the statute had never seeking to recover on its own behalf. been enacted. Therеfore, because, under the doctrine of sovereign immunity, Whether or not ab- the United States Consti- consent, subject sent its own it not to state tution federally makes chartered credit un- limitations, statutes of exempt United States v. ions from state taxation proprio ex Co., Hancock Mutual Insurance 364 vigore, John it does not seem to me that Michi- 1, 6, 5 L.Ed.2d gan’s four-year statute of ought limitations four-year limi- state’s statute of apply here. The United having States tations for refunds taxes cannot of sales brought request this action at the Thus, apply. only we need determine credit uniоns and for their benefit to recov- governed by whether this action is the six- imposed er taxes illegally, I believe that the 2415(a) year limitation of because it “is six-year action is limitations express founded contract or im- [a] period prescribed by 28 U.S.C. plied in law fact.” illegality whether the solely stems from 12 directly 1768or from the Constitu- The cause of action which the United tion as well. asserting States is here on behalf of the money federal credit unions is to recover mistakenly paid by these instru- WELLFORD, Judge, Circuit payments mentalities. These resulted in concurring part dissenting unjust enrichment of the state of Michi- part: gan. unjust Such an action for enrichment quasi-contract, syn-

is based on a which is Judge agree I with Martin that the dis- onymous implied with a “contract in law.” jurisdiction in trict court exercised Limbs, 524 F.2d 801- United States despite Injunc- case the Tax this difficult (9th Cir.1975). Moreover, as that court agree Act. I also that 12 U.S.C. recognized, legislative history of sec- unions, provides the federal credit 2415(a) clearly shows it was intended interest, parties which are the real with nonconsensual, govern quasi-con- to such exemption from “all taxation now a clear obligations tractual rе- as where someone State, imposed by any or hereafter ... money government ceives from the federal taxing authority except Territorial or local to which he is not entitled. Id. at n. 3. property any tangible personal and ... real County, also v. DeKalb See United States Congress property....” power had the to (11th Cir.1984). Therefore, 729 F.2d 738 exemption newly to then grant that those correctly court held district that section federally agencies. chartered authorized 2415(a) action, applied to this and the dis- The wisdom of exemption such a broad tax trict court ruled that the United from state and local sales taxes to these all sales tax- States was entitled recover agencies operate in local communities during paid by es federal credit unions myriad much like the tax-paying other years prior filing of the com- six agencies may that now open exist plaint. question of the developments of

Accordingly, judgment the district court intervening fifty years since respects. is affirmed all being. credit unions came into I doubt that longer perform “an they any VERBA, Betty Plaintiff-Appellee, function,” for the but it is governmental exemption whether the Congress to decide v. I also not in force. am should continue CO., CASUALTY INSURANCE OHIO ‍‌​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌‌‌​‌​​​‍any federal fiscal emphasize prepared to Defendant-Appellant, credit unions. agency role of federal and Judge dealing join I Martin’s rationale with the incidence of the America, The United States of as federal instrumentalities such Defendant-Appellee. Agricultural Na credit unions. See First 86-3803. No. Tax tional Bank v. State Appeals, States Court 20 L.Ed.2d 1138 (1968) Sixth Circuit. Mississippi United States Commission, 421 Aug. Argued 1987. L.Ed.2d July Decided regard to the however with I dissent I period. statute of limitations applicable Rehearing 12,1988. Sept. Denied state exemption hold the would not related to or founded

taxation to be unjust enrichment implied contract recovery of upon which

theory or basis mistakenly paid would be sales taxes

state 2415(a). I find no

guided by 28 U.S.C. § period fixed applicable limitation

specific hold law and would therefore

by federal taxes to be recovery of state

this suit for provided limitation year to the four 9 of the General Sales

by §

Act, Mich.Comp.Laws 205.59. There was Michigan sales tax- voluntary payment of involved, I here the entities

es them, hold

would Michigan limita- by the reasonable

bound applicable to period years of four

tions taxes.

over-payment of these

ON REHEARING

WELLFORD, Judge, Dissenting: Circuit respectfully

I dissent from the denial of Michigan’s petition for rehear- State

ing. presented, I do not feel that the issue opinion July

whether filed prospective only,

should be deemed to be by I fully

has been considered the court. important ques-

find it to a serious and be panel

tion that should addressed my I the court ‍‌​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌‌‌​‌​​​‍en banc. adhere to position four

previous

year apply, statute of limitations should

this becomes more

panel’s retrospective refusal to consider merits, on the one.

effect of our decision ques-

which undertook to decide a difficult impression.

tion of first

Case Details

Case Name: United States v. State of Michigan

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 23, 1988

Citation: 851 F.2d 803

Docket Number: 87-1858

Court Abbreviation: 6th Cir.