ANTHONY E WISNE V DEPT OF TREASURY
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STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY W. WISNE,
FOR PUBLICATION
January 16, 2001
9:15 a.m.
Plaintiff-Appellee,
v
No. 216850
Court of Claims
LC No. 96-016485-CM
DEPARTMENT OF TREASURY,
Defendant-Appellant.
_________________________________________
ANTHONY W. WISNE,
Plaintiff-Appellant,
v
No. 216914
Court of Claims
No. 96-016485-CM
DEPARTMENT OF TREASURY,
Defendant-Appellee.
Updated Copy
March 16, 2001
Before: Sawyer, P.J., and Murphy and Fitzgerald, JJ.
PER CURIAM.
In Docket No. 216850, defendant Department of Treasury appeals as of right the Court of
Claims order granting plaintiff Anthony W. Wisne's motion for partial summary disposition,
holding that 1990 PA 283 did not apply to the calculation of the Michigan income tax due on a
nonresident shareholder's distributive income from a Michigan S corporation doing business in
Michigan received before the act's effective date of December 14, 1990. In Docket No. 216914,
plaintiff appeals as of right the order denying his claim for a refund of income taxes paid for the
period of December 14 through December 31, 1990, on the ground that a nonresident
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shareholder's distributive share of a Michigan S corporation is subject to Michigan income taxes
after the act's effective date of December 14, 1990. We affirm.
Plaintiff, a resident of Florida, is a shareholder in several Michigan businesses that are
known as "S corporations" under § 1361 of the Internal Revenue Code, 26 USC 1361. Plaintiff
filed a claim for a refund of Michigan income taxes paid during the 1990 tax year on the ground
that as a nonresident his 1990 distributive income from S corporations was exempt from
Michigan income taxes pursuant to Bachman v Dep't of Treasury, 215 Mich App 174; 544
NW2d 733 (1996). In Bachman, the Court held that the income earned by nonresident S
corporation shareholders was not taxable income under the preamendment version of subsection
110(2)(b) of the Income Tax Act (ITA), MCL 206.110(2)(b); MSA 7.557(1110)(2)(b).
However, subsection 110(2)(b) was amended by 1990 PA 283, immediately effective
December 14, 1990. The provision was amended as follows:
(2) In the case of For a nonresident individual, estate, or trust, all taxable
income is allocated to this state to the extent it is earned, received, or acquired in
1 or more of the following ways:
(a) For the rendition of personal services performed in this state.
(b) As a distributive share of the net profits of an unincorporated a
business, profession, enterprise, undertaking, or other activity as the result of work
done, services rendered, and or other business activities conducted in this state,
except as allocated to another state pursuant to the provisions of [MCL 206.111 to
MCL 206.114] and subject to the credit provisions of [MCL 206.256; MSA
7.557(1256)] (Emphasis added.).[1]
On August 13, 1996, defendant denied plaintiff 's refund claim for 1990 on the ground
that the adoption of 1990 PA 283 rendered a nonresident shareholder's distributive share of an S
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corporation subject to Michigan income tax for the entire tax year during which the amendment
became effective.
Plaintiff filed the present action on November 8, 1996. On June 5, 1997, the Court of
Claims ruled that 1990 PA 283 did not apply before December 14, 1990, and therefore granted
partial summary disposition on this issue. Defendant appeals from this order in Docket No.
216850. On May 4, 1998, the Court of Claims issued an order holding that a nonresident
shareholder's distributive income from an S corporation is subject to Michigan income taxes after
December 14, 1990. Plaintiff appeals from this order in Docket No. 216914.
Docket No. 216850
Defendant treasury department argues that the Court of Claims incorrectly determined
that subsection 110(2)(b), as amended by 1990 PA 283, does not allocate to Michigan the
distributive share of a nonresident shareholder's income before the act's effective date of
December 14, 1990. A panel of this Court squarely addressed this issue of law in Alma Piston
Co v Dep't of Treasury, 236 Mich App 365; 600 NW2d 144 (1999), and held that 1990 PA 283 is
not applicable to the period before December 14, 1990. Because we believe that Alma Piston
was correctly decided, we decline defendant's request to reject the holding in that decision and
declare a conflict. Accordingly, we conclude that the Court of Claims properly determined that
the amendment does not apply retroactively.
Docket No. 216914
Plaintiff contends that the Court of Claims incorrectly determined that a nonresident
shareholder's distributive income from a Michigan S corporation after December 14, 1990, may
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be allocated to Michigan under the ITA, MCL 206.1 et seq.; MSA 7.557(101) et seq., as
amended by 1990 PA 283.
I. The ITA before amendment by 1990 PA 283
Chapter 1 of the ITA before amendment by 1990 PA 283 defined "taxable income" as
federally defined adjusted gross income, subject to a list of adjustments that included
"[a]djustments resulting from the allocation and apportionment provisions of chapter 3." MCL
206.30(1)(i); MSA 7.557(130)(1)(i). Chapter 3 of the act contained the following provisions:
Sec. 103. Any taxpayer having income from business activity which is
taxable both within and without this state, other than the rendering of purely
personal services by an individual, shall allocate and apportion his net income as
provided in this act. [MCL 206.103; MSA 7.557(1103).]
Sec. 110. (1) For a resident individual, estate, or trust, all taxable income
from any source whatsoever, except that attributable to another state under
sections 111 to 115 and subject to section 255, is allocated to this state.
(2) In the case of a nonresident individual, estate or trust all taxable
income is allocated to this state to the extent it is earned, received, or acquired:
(a) For the rendition of personal services performed in this state.
(b) As a distributive share of the net profits of an unincorporated business,
profession, enterprise, undertaking, or other activity as the result of work done,
services rendered, or other business activities conducted in this state, except as
allocated to another state pursuant to sections 111 to 114 and subject to section
256. [MCL 206.110; MSA 7.557(1110).][2]
Sec. 115. All business income, other than income from transportation
services shall be apportioned to this state by multiplying the income by a fraction,
the numerator of which is the property factor plus the payroll factor plus the sales
factor, and the denominator of which is 3. [MCL 206.115; MSA 7.557(1115).]
"Business income" was defined in chapter 1 of the act as
income arising from transactions, activities and sources in the regular course of
the taxpayer's trade or business and includes income from tangible and intangible
property if the acquisition, rental, management and disposition of the property
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constitutes integral parts of the taxpayer's regular trade or business operations.
[MCL 206.4(2); MSA 7.557(104)(2).]
Bachman, supra, dealt with the preamendment version of subsection 110. In Bachman,
the Court held that a nonresident shareholder's distributive income from an S corporation
conducting business in Michigan is not taxable income that may be allocated to Michigan under
the preamendment version of the ITA.
The parties propose two competing interpretations of subsection 110(2)(b), as amended
by 1990 PA 283, for determining whether distributive income received by a nonresident
individual is taxable income that may be allocated to Michigan.
Defendant argues that
distributive income from an S corporation is business income allocated to Michigan that must be
apportioned in accordance with §§ 103 and 115 of the act. See Chocola v Dep't of Treasury, 422
Mich 229; 369 NW2d 843 (1985) (income from an out-of-state S corporation is business income
under applicable Department of Treasury rules and may be apportioned and thereby excluded
from a Michigan resident's tax base). Defendant suggests that § 115 governs both residents and
nonresidents and requires that all taxable business income, including income from an S
corporation, be apportioned to this state according to the three-part formula.
In contrast, plaintiff contends that under subsection 110(2)(b) income earned by a
nonresident shareholder from an S corporation conducting business in Michigan is not taxable
income that may be allocated to Michigan. He argues that subsection 110(1), which applies to
residents, expressly references § 115 (addressing the apportionment of business income) while
subsection 110(2), which applies to nonresidents, does not. Plaintiff cites Bachman in support of
the assertion that "a nonresident individual's distributive income from an S corporation
conducting business in Michigan is not taxable income that may be allocated to Michigan."
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However, as discussed above, Bachman was based on the preamendment version of subsection
110(2)(b), which specifically allocated the taxable income of nonresidents to Michigan to the
extent it is earned, received, or acquired as the distributive share of the net profits from an
unincorporated business, profession, or activity conducted in Michigan. Because subsection
110(2)(b) has been amended to delete the word "unincorporated," Bachman's holding that
"taxable income" does not include distributive income earned by a nonresident individual from
an S corporation is not controlling in the present case.
Alma Piston, supra, addressed the issue of the retroactivity of the amendment of
subsection 110(2)(b) and held that the amendment does not apply retroactively to the
shareholders' distributive share of the corporations' net profits attributable to the period before
December 14, 1990.
Neither Bachman nor Alma Piston squarely addressed the issue presented here, that is,
whether a nonresident shareholder's distributive income from an S corporation is taxable income
that may be allocated to Michigan under the ITA.3
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the
intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 513;
573 NW2d 611 (1998). If reasonable minds can differ with respect to the meaning of a statute,
judicial construction is appropriate. Adrian School Dist v Michigan Public School Employees'
Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). Tax statutes are construed most
strongly against the government where there is doubt over their interpretation. Comerica BankDetroit v Dep't of Treasury, 194 Mich App 77, 92; 486 NW2d 338 (1992).
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Here, the Legislature amended subsection 110(2)(b) to eliminate the word
"unincorporated." A change in a statutory phrase is presumed to reflect a change in the meaning.
Eaton Farm Bureau v Eaton Twp, 221 Mich App 663, 668; 561 NW2d 884 (1997), remanded
457 Mich 887 (1998), on remand 231 Mich App 622; 588 NW2d 142 (1998). By its plain
meaning, subsection 110(2)(b) clearly imposes tax liability on the distributive share of the net
profits of "a business, profession, enterprise, undertaking, or other activity as the result of work
done, services rendered, or other business activities conducted in this state, except as allocated to
another state pursuant to the provisions of sections 111 to 114 . . . ." (Emphasis added.)
Because the language of the statute is clear, judicial construction is not permitted. Accordingly, a
nonresident shareholder's distributive income from an S corporation is by definition taxable
income allocated to Michigan after December 14, 1990. Because the income is business income,
Chocola, supra at 243-245, the income is, however, subject to apportionment pursuant to § 115.
MCL 206.103; MSA 7.557(1103) (any taxpayer having income from business activity that is
taxable both within and without Michigan must apportion the income as provided in the
remainder of the act.)
Plaintiff 's argument that a nonresident's business income is not taxable in Michigan
because subsection 110(2)(b) makes no reference to § 115 ("all business income . . . shall be
apportioned to this state . . . ") is misplaced.
By an ordinary reading of Chapter 3 of the act, §§ 110(1) and (2) govern
the general allocation of business and nonbusiness income for residents and
nonresidents to Michigan by describing the sources of taxable income under
Michigan law. Section 115 then governs the apportionment of the taxable
business income that was identified as taxable income under § 110, based on the
formula provided. In other words, sources of taxable income are defined by §
110, and § 115 divides the business income between Michigan and other states.[4]
[Bachman, supra at 181-182.]
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As originally drafted in 1967 PA 281, neither subsection 110(1) nor subsection 110(2)
referenced § 115. As originally drafted, subsection 110(1) read as follows:
In the case of a resident individual, estate, or trust all taxable income from
any source whatsoever, except that allocated to another state under the provisions
of sections 111 to 114 and subject to the credit provisions of section 255, is
allocated to this state.
Subsection 110(2) read as follows:
In the case of a nonresident individual, estate or trust all taxable income is
allocated to this state to the extent it is earned, received or acquired:
(a) For the rendition of personal services performed principally in this
state.
(b) As a distributive share of the net profits of an unincorporated business,
profession, enterprise, undertaking or other activity as the result of work done,
services rendered and other business activities conducted in this state, except as
allocated to another state pursuant to the provisions of sections 111 to 114 and
subject to the credit provisions of section 256.
To have held that § 115, requiring the apportionment of business income, applied to neither
residents nor nonresidents as originally drafted would have rendered § 115 surplus and led to an
absurd result. However, strict application of the original language of subsection 110(1) could
lead to the implication that all of a resident's income from any source must be allocated to
Michigan unless specifically allocated to another state under sections 111 to 114. Hence, a
resident could arguably have ignored the attribution provisions of § 115 and allocated all
business income to Michigan. The Legislature, apparently recognizing the potential for improper
allocation of "business income," amended subsection 110(1) by excepting business income
attributable to another state and expressly incorporating § 115. 1969 PA 332. The addition of a
reference to § 115 made it clear that even for residents, "business income" was subject to
apportionment pursuant to § 115.
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A similar amendment of subsection 110(2) was not necessary because subsection 110(2)
limits the sources of income that are allocated to Michigan. For nonresidents under subsection
110(2)(b), only specific "business income" is allocated to Michigan.
Consequently, unlike
subsection 110(1), 110(2) could not be read to require allocation of all income to Michigan, and
no conflict existed between subsection 110(2) and §§ 103 and 115 as originally drafted. Thus, it
was unnecessary to add a reference to § 115 when the ITA was amended by 1969 PA 332.
Affirmed.
/s/ David H. Sawyer
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
1
This is not the current version of the statute. A 1996 amendment, 1996 PA 484, removed the
phrases "the provisions of" and "the credit provisions of" in subsection 2(b). That change is not
relevant to this appeal.
2
This is not the current version of the statute. A 1996 amendment, 1996 PA 484, deleted "the
provisions of" following "under" and "the credit provisions of" following "subject to" in both
subsections 110(1) and 110(2)(b).
3
However, both cases alluded in dicta to this precise issue. In Bachman, the Court noted that the
1990 amendment of subsection 110(2)(b) eliminated the word "unincorporated" before the word
"business" and that the "legislative analysis for this bill [1990 PA 283] stated that this change
was to make it clear that nonresidents could be taxed on their share of the net profits from a
subchapter S corporation." Bachman, supra at 180-181, n 2. In Alma Piston, the Court noted
that "as amended, subsection 110(2)(b) clearly imposes tax liability on petitioner's nonresident
shareholders for their distributive share." Alma Piston, supra at 366-367.
4
"Allocate" is used to direct taxable income to one state, and "apportion" is used to divide
taxable income among states. Bachman, supra at 182, n 4.
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