ALTMAN MANAGEMENT CO V DEPT OF TREASURY
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STATE OF MICHIGAN
COURT OF APPEALS
ALTMAN MANAGEMENT COMPANY,
UNPUBLISHED
April 10, 2001
Plaintiff-Appellant,
v
No. 216912
Tax Tribunal
LC No. 00-239884
DEPARTMENT OF TREASURY,
Defendant-Appellee.
Before: Wilder, P.J., and Smolenski and Whitbeck, JJ.
PER CURIAM.
Plaintiff appeals as of right from the Tax Tribunal’s opinion and order granting summary
disposition to defendant. The Tax Tribunal held that it lacked jurisdiction in this matter because
plaintiff did not file its petition within the time provided by statute. The crux of the issue before
this Court is whether defendant gave plaintiff proper notice of a final assessment regarding a
single business tax deficiency. We conclude that it did so, and therefore affirm the Tax
Tribunal’s decision.
Defendant originally maintained an East Lansing address on file for plaintiff, and it
mailed official documents to that address as late as October 3, 1995. On October 18, 1995,
defendant received one of plaintiff’s single business tax returns. On that return, plaintiff’s East
Lansing address was crossed out and an address in Bethesda, Maryland, was written in its place.
Defendant treated the filing of this return as a request to change plaintiff’s address. Thereafter,
defendant sent a copy of the final assessment to plaintiff at the Maryland address by certified
mail, but without a return receipt. The postal service did not return the mailing to defendant, and
plaintiff did not receive it.
On July 23, 1996, defendant mailed a copy of a state tax lien, for nonpayment of the
assessment, to the Maryland address. Plaintiff received that mailing, which prompted it to
request a copy of the final assessment. On September 10, 1996, plaintiff filed a petition with the
Tax Tribunal, contesting the final assessment. The Tax Tribunal granted defendant’s motion for
summary disposition, ruling that it lacked jurisdiction to hear the matter because plaintiff’s
petition was not filed within thirty-five days from the date on which defendant issued the final
assessment. Plaintiff appeals from that decision, arguing that the filing deadline should not apply
because it did not receive proper notice of the final assessment.
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Michigan’s Revenue Division Act (RDA) governs plaintiff’s petition for review of
defendant’s final assessment. The RDA requires defendant to provide a taxpayer with a copy of
a final assessment, including a statement advising the taxpayer of its right to appeal the
assessment. MCL 205.21(2)(f); MSA 7.657(21)(2)(f). The RDA also provides that such notice
“shall be given either by personal service or by certified mail addressed to the last known address
of the taxpayer.” MCL 205.28(1)(a); MSA 7.657(28)(1)(a). The issue we must decide on appeal
is whether defendant complied with the RDA by sending plaintiff the final assessment at its “last
known address.” The Tax Tribunal relied on this Court’s decision in Bickler v Dep’t of
Treasury, 180 Mich App 205; 446 NW2d 644 (1989), to hold that defendant did so. On appeal,
both parties contend that the Bickler decision supports their respective positions.
In Bickler, the defendant sent a copy of a final assessment to an address that the plaintiff
had not used for several years. Id. at 207-208. The postal service returned the notice to the
defendant, marked “undeliverable.” Id. at 208. After the expiration of the appeal period, the
defendant sent a notice of state tax lien to the plaintiff at the same address, even though
defendant was on notice that the address was not current. Id. The postal service forwarded the
notice of state tax lien to the plaintiff at his new address. Id. Upon receiving that notice, the
plaintiff promptly appealed the defendant’s final assessment. Id. The Tax Tribunal granted
defendant’s motion for summary disposition, ruling that it lacked jurisdiction over the matter
because the plaintiff’s appeal was untimely. Id. at 208-209.
On appeal, the defendant argued that it sent the final assessment to the plaintiff’s “last
known address,” as required by MCL 205.28(1)(a); MSA 7.657(28)(1)(a). This Court disagreed,
noting that the defendant’s files contained the plaintiff’s state income tax form, which listed the
plaintiff’s current address. Therefore, the previous address on file with defendant was not the
taxpayer’s “last known address,” and defendant was required to search its files for updated
address information:
A mailing of notice by a revenue commissioner to an old and inaccurate address
does not constitute compliance with a statute requiring a mailing to “the last
known address” where a current address exists in the department’s files as a
result of the subsequent filing of a tax return. [Id. at 210 (emphasis added).]
Ultimately, this Court reversed the Tax Tribunal’s decision in Bickler, holding that the defendant
had violated the plaintiff’s right to due process because it had failed to give the plaintiff notice of
the final assessment “in a manner reasonably calculated under all the circumstances to apprise
petitioner of the decision and to afford him an opportunity to be heard.” Id. at 211.
We agree with the Tax Tribunal that the Bickler opinion supports defendant’s actions in
the present case. If defendant had followed the procedure that plaintiff now advocates, i.e.,
ignoring the change of address marked on plaintiff’s tax return, then defendant would have
violated the Bickler rule. Instead, defendant examined its files, updated its records to reflect a
change of address marked on a properly filed tax return, and mailed the final assessment to the
new address. Defendant can not be faulted for promptly recognizing a change of address marked
on a state tax return.
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Plaintiff argues that defendant should not have accepted at face value the change of
address marked on the tax return, but should have investigated the matter further to determine
who changed the address and what their intention was in doing so. We disagree. Defendant
should be entitled to rely on the address clearly marked on a properly filed tax return. Further,
plaintiff’s argument ignores the fact that defendant sent a confirmation notice to the Maryland
address, notifying plaintiff that it had changed plaintiff’s address and asking plaintiff to notify
defendant if that change was not intended. Defendant received no response to that notice, and
had no reason to believe that plaintiff had not received either the final assessment or the
confirmation notice. Even if defendant had some duty to investigate the change of address, we
believe that it complied with that duty by mailing the confirmation notice.
Plaintiff next argues that, even if defendant did properly mail the final assessment to the
Maryland address, it should have also mailed the document to plaintiff’s Michigan address. We
disagree. The RDA requires defendant to provide notice by certified mail addressed to the
taxpayer’s “last known address.” MCL 205.28(1)(a); MSA 7.657(28)(1)(a). The statute does not
require the department to provide notice to every address it has on file for the taxpayer.
Finally, plaintiff argues that defendant failed to provide proper notice of the final tax
assessment because defendant failed to send a copy of that document to plaintiff’s Michigan
accountant, Carol Andrews. Plaintiff relies on MCL 205.8; MSA 7.657(8), which provides:
If a taxpayer files with the department a written request that copies of
letters and notices regarding a dispute with the taxpayer be sent to the taxpayer’s
official representative, the department shall send the official representative, at the
address designated by the taxpayer in the written request, a copy of each letter or
notice sent to that taxpayer. A taxpayer shall not designate more than 1 official
representative under this section for a single dispute.
Plaintiff contends that Andrews prepared and filed a power of attorney form that
authorized her to represent plaintiff regarding single business tax matters. Therefore, plaintiff
argues that defendant should have sent a copy of the final assessment to Andrews, as its official
representative. The Tax Tribunal concluded, as a factual matter, that Andrews never filed the
power of attorney form with defendant. If the Tax Tribunal’s findings of fact are supported by
competent, material and substantial evidence on the whole record, they must be considered final.
Bickler, supra at 210. The Tax Tribunal based its decision on the following factors: (1)
defendant’s files did not contain the power of attorney form, (2) Andrews’ files contained no
confirmation that she mailed or faxed the form to defendant, and (3) Andrews had no specific
recollection that she personally handed the form to defendant’s representative at the informal
conference. We conclude that the Tax Tribunal’s factual conclusion is supported by the requisite
evidence on the whole record.
Furthermore, Andrews’ presence at the informal conference did not entitle her to receipt
of the final assessment. The administrative rules govern the informal conference procedure and
the proper methods for notifying the taxpayer of the results of that conference:
The department shall send, to the taxpayer, by certified mail if the taxpayer
is not represented, or by first class mail if the taxpayer is represented in the
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dispute, a copy of the recommendation, the decision and order, and, if applicable,
the rebuttal explanation. If a taxpayer is represented in the informal conference,
the department shall send, by certified mail, to the taxpayer representative, a copy
of the recommendation, the decision and order, and, if applicable, the rebuttal
explanation.
After the decision and order have been issued, a notice of final assessment
shall be sent to the taxpayer. The notice of final assessment shall include a
statement advising the taxpayer of the right to appeal. [1999 AC, R 205.1011(4),
(5) (emphasis added).]
The administrative rule clearly provides that the notice of final assessment shall be sent only to
the taxpayer, even if the taxpayer was represented at the informal conference. Defendant
properly complied with the rule.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Michael R. Smolenski
/s/ William C. Whitbeck
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