Clark Equip v. Dep't Treasury

394 Mich. 396 (1975)

230 N.W.2d 548

CLARK EQUIPMENT COMPANY v. DEPARTMENT OF TREASURY, REVENUE DIVISION

Docket No. 56137, (Calendar No. 16).

Supreme Court of Michigan.

Argued April 10, 1975.

Decided June 24, 1975.

Dickinson, Wright, McKean & Cudlip (by T. Donald Wade, Ernest Getz, and Benjamin O. Schwendener, Jr.), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard R. Roesch and Charles E. Liken, Assistants Attorney General, for defendant.

LEVIN, J.

The circuit court entered summary judgment in favor of the plaintiff quashing a subpoena issued in August, 1971 by the defendant seeking books and records for the purpose of redetermining corporation franchise fees for the years 1966 and 1967.

The plaintiff's annual reports for those years were timely filed. The fee, as computed by the *399 Franchise Fee Division, Department of Treasury, was in each instance in excess of the fee computed by the corporation in its report. The deficiencies were paid. The 1966 report was accepted November 9, 1966 and the 1967 report was accepted January 23, 1968.

In Borden, Inc v Department of Treasury, 391 Mich 495; 218 NW2d 667 (1974), an equally divided Court affirmed an opinion of the Court of Appeals (43 Mich App 106; 204 NW2d 34 [1972]) which had held that the Department of Treasury is without power to recompute the franchise fee of a corporation after the annual report and franchise fee have been accepted.

For the reasons set forth in the Borden opinion for affirmance (391 Mich pp 500-510; 218 NW2d pp 668-674), we affirm the judgment of the circuit court quashing the subpoena.[1]

Affirmed.

T.G. KAVANAGH, C.J., and M.S. COLEMAN and J.W. FITZGERALD, JJ., concurred with LEVIN, J.

WILLIAMS, J. (dissenting).

For the reasons set forth in Borden, Inc v Department of the Treasury, 391 Mich 495; 218 NW2d 667 (1974), opinion for reversal, I respectfully dissent.

The decision of the Court today allows corporate taxpayers who otherwise would be liable for adjustments in their franchise fee tax to successfully avoid further liability once the Department of the Treasury has accepted the taxpayer's annual report under § 84 of the General Corporation Act.[1] Such a result is not in keeping with the requirements *400 of the General Corporation Act[2] and the fees, taxes and charges act[3] nor is it consistent with the principle that all this state's taxpayers contribute their fair share to the state's Treasury.

The decision of the lower court should be reversed.

SWAINSON and LINDEMER, JJ., took no part in the decision of this case.

[1] 1975 PA 13, approved March 25, 1975 with immediate effect, authorizes audit of a corporation by the Department of Treasury and assessment of a deficiency and provides periods of limitation.

[1] MCLA 450.84; MSA 21.84.

[2] MCLA 450.1 et seq.; MSA 21.1 et seq.

[3] MCLA 450.301 et seq.; MSA 21.201 et seq.