WOLVERINE TUBE INC V MICHIGAN DEPT OF TREASURY
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STATE OF MICHIGAN
COURT OF APPEALS
WOLVERINE TUBE, INC.,
UNPUBLISHED
January 9, 2001
Petitioner-Appellant,
v
MICHIGAN DEPARTMENT OF TREASURY,
No. 219722
Tax Tribunal
LC No. 00-265064
Respondent-Appellee.
Before: O’Connell, P.J., and Zahra and B. B. MacKenzie,* JJ.
PER CURIAM.
Petitioner appeals as of right from a Tax Tribunal order granting respondent’s motion to
dismiss. The Tax Tribunal held that the petition contesting an agency decision, received one day
after the statutory deadline, was not timely, and that as a result the tribunal lacked jurisdiction
over the matter. We affirm.
Petitioner argues that its petition was timely for two reasons: the statutory period did not
begin to run until respondent’s decision was mailed and the petition is deemed filed when it is
postmarked, not when it is received. On February 5, 1999, respondent mailed to petitioner its
decision, dated February 4, 1999, denying petitioner’s request to participate in respondent’s
voluntary disclosure program. Petitioner mailed its appeal of this decision by certified mail,
postmarked March 11, 1999, and received by respondent on March 12, 1999. Petitioner asserts it
was told by respondent that this procedure would be adequate.
The Revenue Division Act states that a taxpayer aggrieved by an assessment, decision, or
order of the department may appeal the contested portion of the assessment, decision, or order to
the tax tribunal within thirty-five days, or to the court of claims within ninety days after the
assessment, decision, or order. MCL 205.22; MSA 7.657(22). An appeal is to be perfected
under the Tax Tribunal Act, MCL 205.735(2); MSA 7.650(35)(2), which states:
The jurisdiction of the tribunal in an assessment dispute is invoked by a
party in interest, as petitioner, filing a written petition on or before June 30 of the
tax year involved. Except in the residential property and small claims division, a
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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written petition is considered filed by June 30 of the tax year involved if it is sent
by certified mail on or before June 30 of that tax year. In the residential property
and small claims division, a written petition is considered filed by June 30 of the
tax year involved if it is postmarked by first class mail or delivered in person on
or before June 30 of the tax year involved. All petitions required to be filed or
served by a day during which the offices of the tribunal are not open for business
shall be filed by the next business day. In all other matters, the jurisdiction of the
tribunal is invoked by a party in interest, as petitioner filing a written petition
within 30 days after the final decision, ruling, determination, or order that the
petitioner seeks to review.
In a question involving interpretation of the Tax Tribunal Act, the tribunal’s construction
of the statute is entitled to respectful consideration. General Motors Corp v Detroit, 141 Mich
App 630, 633; 368 NW2d 739 (1985). An agency’s ruling regarding a question of law is set
aside only where a party’s substantial rights were prejudiced because of a substantial and
material error of law. Tyler v Livonia Public Schools (On Remand), 220 Mich App 697, 699;
561 NW2d 390 (1996), aff’d 459 Mich 382 (1999).
There is no error in the tribunal’s interpretation of the timing required by the statutes.
The thirty-five day period begins to run when the decision is issued. Kelser v Dep’t of Treasury,
167 Mich App 18, 21; 421 NW2d 558 (1988); Curis Big Boy v Dep’t of Treasury, 206 Mich App
139, 142; 520 NW2d 369 (1994). The petition concerned an agency decision, not an assessment,
so it is an “other matter” under the Tax Tribunal Act. Therefore, the omission of the “postmark
exception” in the part of the statute dealing with non-assessment matters is construed to mean
that the Legislature did not intend that exception to apply to the petition. Farrington v Total
Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993); Cherry Growers, Inc v Agricultural
Marketing & Bargaining Bd, 240 Mich App 153, 170; 610 NW2d 613 (2000). This language
was drafted in response to this Court’s decision in General Motors Corp v Detroit, 141 Mich
App 630, 634; 368 NW2d 739 (1985), which held that the Tax Tribunal Act adhered to the
general rule that mailing does not constitute filing. This Court held that the tribunal had no
authority to invalidate, change, or enlarge a statute by rule, and that the jurisdiction of the
tribunal cannot be invoked beyond the deadline by mailing in the absence of a statute allowing
such extension. Id. at 635. The petition was not received by the statutory deadline, so it was
untimely.
Petitioner’s assertion that respondent should be estopped from denying the petition was
timely because of respondent’s own statements is not without merit, but it is nonetheless without
import. Estoppel arises where a party, by representations, admissions or silence, intentionally or
negligently induces another party to believe facts and the other party justifiably relies and acts on
this belief and would be prejudiced if the first party is permitted to deny the existence of the
facts. Clarkson v Judges’ Retirement System, 173 Mich App 1, 14; 433 NW2d 368 (1988). To
estop the state, the acts or conduct of an officer must be within the scope of the officer’s
authority. State Treasurer v American Surety Co of New York, 264 Mich 516, 518; 250 NW 295
(1933). There is no evidence in the record whether petitioner was justified in relying on
respondent’s statements or that respondent’s employees were within the scope of their duties
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when they made the statements, and this Court can make no determination whether the tribunal
was correct in denying petitioner a hearing on this matter.
Nevertheless, we need not remand on the estoppel issue because the facts involved in the
original petition clearly show that petitioner’s substantial rights were not prejudiced by the
tribunal’s dismissal of the petition. Petitioner wished to participate in respondent’s voluntary
disclosure program, but respondent determined petitioner was ineligible because it had already
filed its tax returns. MCL 205.30c; MSA 7.657(30c), the statute outlining the program, reads:
(1) Through December 31, 2003, the commissioner, or an authorized
representative of the commissioner, on behalf of the department, may enter into a
voluntary disclosure agreement with a person who makes application, who is a
nonfiler, and who meets 1 or more of the following criteria:
***
(11) As used in this section:
***
(b) “Nonfiler” for a particular tax is a person that has never filed a return
for the particular tax being disclosed. [Emphasis added.]
This language unambiguously provides that once a taxpayer files, the nonfiler status is lost and
the taxpayer becomes ineligible to participate in the program. Because its situation would not be
changed even if respondent had granted it a hearing, petitioner’s substantial rights were not
prejudiced by the tribunal’s summary disposition of the case. Accordingly, we reject petitioner’s
estoppel argument.
Affirmed.
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
/s/ Barbara B. MacKenzie
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