FISHER & CO INC V DEPT OF TREASURY
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STATE OF MICHIGAN
COURT OF APPEALS
FISHER & COMPANY, INC,
FOR PUBLICATION
January 29, 2009
9:05 a.m.
Plaintiff-Appellee,
v
No. 280476
Court of Claims
LC No. 06-000020-MT
DEPARTMENT OF TREASURY,
Defendant-Appellant.
FISHER & COMPANY, INC,
Plaintiff-Appellant,
v
No. 280498
Court of Claims
LC No. 06-000020-MT
DEPARTMENT OF TREASURY,
Defendant-Appellee.
Before: Murray, P.J., and O’Connell and Davis, JJ.
DAVIS, J.
Each of the parties separately appeals as of right the same summary disposition order.
This case involves a dispute between the parties as to the applicability of the Michigan Use Tax,
MCL 205.91 et seq, to plaintiff’s purchase of a partial interest in an aircraft. The trial court held
that the nature of the transaction constituted a purchase of tangible personal property rather than
services, but it also held that plaintiff was entitled to a refund of three percent. We affirm in part,
reverse in part, and remand.
The parties do not dispute the bare facts, although, as will be seen, the legal implications
of those facts are not so straightforward. Plaintiff is a Michigan corporation. It purchased a
“25% undivided interest” in a1 small turbofan jet airplane. That partial interest was formally
1
It purchased an interest in one airplane from Executive Jet Sales, Inc (EJS) in 2001, and in 2003
(continued…)
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considered to be a tenant-in-common ownership interest, along with several other part owners;
plaintiff was designated as the “buyer.” Each part owner, including plaintiff, was entitled to
share in the airplane’s depreciation, gain, loss, deduction, or other tax benefit that might arise
therefrom. The seller’s sister company, NetJets Aviation, Inc., (NJA), maintained the airplane
and coordinated its use by plaintiff and by the other part owners, and the “owner’s agreement”
precluded plaintiff from placing any lien on the airplane without approval by the maintenance
entity. The airplane was specifically identified, and that particular airplane never entered
Michigan. However, part of the benefit to plaintiff was the use of other airplanes in the NJA
fleet, consistent with plaintiff’s rights under the six “operative documents” that made up the
transaction.2 Plaintiff did utilize that benefit for transportation in Michigan.
The use tax is complementary to the Michigan General Sales Tax Act and is designed to
cover those transactions not subject to sales tax. Sharper Image Corp v Dep’t of Treasury, 216
Mich App 698, 701; 550 NW2d 596 (1996). This tax is collectable from each taxpayer in
Michigan and is assessed “for the privilege of using, storing, or consuming tangible personal
property in this state at a rate of 6% of the price.” MCL 205.93(1). “A sales-use tax scheme is
designed to make all tangible personal property, whether acquired in, or out of, the state subject
to a uniform tax burden. Sales and use taxes are mutually exclusive but complementary, and are
designed to exact an equal tax based on a percentage of the purchase price of the property in
question.” By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 52; 703 NW2d 822 (2005),
citing Catalina Marketing v Dep’t of Treasury, 470 Mich 13, 19 n 3; 678 NW2d 619 (2004)
(citations removed).
Critically, the use tax applies, by its plain language, to tangible personal property. It
does not apply to services. The most significant issue in this case is whether plaintiff actually
purchased an actual airplane (albeit as a co-owner). Plaintiff argues that it only purchased
“nominal” title. Rather, it claims that the “purchase” was merely a convenient way to express
plaintiff’s purchase of a particular number of hours of flight-time to be provided by a corporate
travel services provider. Indeed, plaintiff argues that this was the only way the provider would
permit a purchase of more than 200 hours of flight-time to be structured. Moreover, plaintiff
stresses the fact that, once all of the required transaction documents were executed, plaintiff’s
practical rights to the airplane fell far short of anything a lay person would recognize as
“ownership.” Defendant argues that the contractual documents all reflect a purchase of the
airplane itself, albeit only as a part owner, and further points out that plaintiff actually did, in
fact, claim depreciation for the airplane on its taxes. Defendant does not seem to dispute that
some services were involved in the transaction, but it asserts that the partial purchase of the
airplane itself was a fundamental part thereof. Furthermore, defendant points out that
contracting to relinquish control over something is itself the exercise of an ownership right.
(…continued)
it then traded that interest for another interest in a different airplane from NetJets Sales, Inc.
(NetJets). We are only concerned with the 2003 transaction, because the subject of this dispute
is the use tax plaintiff paid regarding the 2003 contract.
2
These documents consisted of the purchase agreement, the owner’s agreement, an interchange
agreement, a management agreement, an acceptance form, and a bill of sale.
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We appreciate the fact that, at the end of the day, plaintiff ultimately just wanted to have
on-demand corporate jet transportation without the need to purchase and maintain a whole
airplane. However, the disposative issue is not so much plaintiff’s motivation as what actual
transaction plaintiff entered into. The documents involved all reflect a sale of an ownership
interest in an airplane, coupled with a contractual arrangement under which multiple airplane
owners shared maintenance, administration, and access to their airplanes. In effect, this is a time
share in an item of tangible personal property; in this case, an airplane.
Traditionally, time shares involve real property, where “a purchaser would buy
occupancy rights in one or more week-long ‘intervals,’ along with a corresponding undivided
interest in the property . . . [a]s is typical in time-sharing arrangements, interval owners could
place their occupancy rights in commercial pools that facilitate trades with those who have
occupancy rights in homes at other resorts.” O’Connor v Resort Custom Builders, 459 Mich
335, 338; 591 NW2d 216 (1999).3 The airplane fleet involved in this case appears to be
precisely such a commercial-pool time-share.
The transaction involved was, therefore, a purchase of tangible personal property coupled
with a contract controlling how that personal property would be used. The fact that plaintiff has
contracted away some (or even most) of its practical control over its airplane does not preclude
plaintiff from having purchased it. It is therefore clear that there was a transfer of tangible
personal property and a contemporaneous but nevertheless separate contract for services
involving that property.
Plaintiff further argues that the use tax does not apply because even if it purchased
tangible personal property in the form of an interest in the airplane, it was not used “in this state”
because it never entered this state. We note that, under MCL 205.93(1)(a), it will be presumed
that property is intended for use in this state if it is brought into the state within 90 days of
purchase. However, that provision only sets forth a presumption. More importantly, “use” is
defined very broadly by MCL 205.92(b) as “the exercise of a right or power over tangible
personal property incident to the ownership of that property including transfer of the property in
a transaction where possession is given.” Thus, “use” in the context of the UTA is not limited to
physical actions performed directly on the property. It includes any exercise of a right that one
has to that property by virtue of having an ownership interest in it. Something need not
necessarily be physically present in Michigan for it to be “used” in Michigan.
We are persuaded that plaintiff “used,” within the meaning of the UTA, its fractional
ownership interest in the airplane in Michigan. The right to control what happens – in a lay
sense – to one’s property is one of the most fundamental rights incident to ownership. Twichel v
MIC General Ins Corp, 469 Mich 524, 534-535; 676 NW2d 616 (2004); see also People v
3
In that case, our Supreme Court concluded that a week-long time share did not really constitute
a “residential purpose” because of the lack of permanence, or at least the right for owners “to
come whenever they want to.” It did not suggest in any way that a time share was not a real
ownership interest.
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Gallagher, 4 Mich 244, 262 (1856) (Pratt, J, dissenting4). Entering into a contract to give up
some of one’s rights to possession or control is, itself, an exercise of those rights. It would be an
exercise of an ownership right for a person in a time-share pooling arrangement to use someone
else’s share in exchange for that person’s own. We conclude that plaintiff’s use of any airplane
in the fleet at issue was pursuant to its contracts to share ownership rights to its own airplane.
Therefore, we find that plaintiff “used” its property in Michigan within the meaning of the UTA.
We therefore affirm the trial court’s holding that the transaction entailed a transfer of
tangible personal property to which the use tax applied by virtue of its use in this state.
However, we find that the trial court erred in calculating the amount of a tax refund to
which plaintiff was entitled. Pursuant to MCL 205.94(1)(e):
If the sale or use of property was already subjected to a tax under the law of any
other state or local governmental unit within a state in an amount less than the tax
imposed by this act, this act shall apply, but at a rate measured by the difference
between the rate provided in this act and the rate by which the previous tax was
computed.
The relevant purchases were made in North Carolina, which imposed a sales tax at the “rate of
three percent” up to a maximum of $1,500. NC Gen Stat § 105-164-4(a)(1b). The UTA does
not specifically address the implications of an out-of-state purchase where the amount of sales or
use tax collected has a cap.
Nevertheless, we find the intent of the Legislature clear: as discussed above, the UTA is
part of the Legislature’s scheme to impose a uniform and equal tax burden. By Lo Oil Co, supra
at 52. In that context, MCL 205.94(1)(e) is clearly designed to ensure that a taxpayer is only
liable for the use tax to the extent the taxpayer has not already remitted to a sister state the sister
state’s own sales or use tax. The word “rate” is undefined in the UTA, we therefore turn to the
dictionary.
According to Random House Webster’s College Dictionary (2001 ed), “rate” means “the
amount of a charge or payment with reference to some basis of calculation;” it can also mean, in
relevant part, “a certain amount of one thing considered in relation to a unit of another thing” or
“a fixed charge per unit of quantity.” Black’s Law Dictionary (8th ed) defines “rate” either as
“the proportion by which quantity or value is adjusted” or “an amount paid or charged for a good
or service.” Any of these definitions, however, would produce the same result: both the
proportional amount and the absolute amount of sales tax paid in North Carolina was $1,500.
Black’s Law Dictionary defines the more specific term “tax rate” as “a mathematical figure for
calculating a tax, usu. expressed as a percentage.” Although this latter definition could support
the view that only the three percent calculation should be considered, that view would be
4
The Gallagher case involved a challenge to the “prohibitory liquor law” of 1855. The majority
in Gallagher did not dispute Justice Pratt’s point, but rather held that the courts could only
declare a legislative enactment void if it is unconstitutional, not for violating “natural rights.”
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inconsistent with the known purpose of Michigan’s statute: taxpayers are not entitled to credits
or refunds for money they have not actually paid.
Therefore, we must include North Carolina’s sales tax cap in our computation of
plaintiff’s refund entitlement in order to give effect to the entirety of both North Carolina’s
statute and of our own. And, finally, this is the only way to accomplish the Legislature’s goal of
making the tax burden uniform. Plaintiff was entitled to a refund of $1,500 because that sum
was “the rate by which the previous tax was computed.”
The trial court’s holding that the UTA applies to the transactions at issue is affirmed.
The trial court’s computation of the amount of refund to which plaintiff was entitled is reversed.
We remand for further proceedings as the trial court deems necessary. We do not retain
jurisdiction. No costs, a public question being involved.
/s/ Alton T. Davis
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