Fisher-New Center Co. v. Detroit , 38 Mich. App. 750 ( 1972 )

38 Mich. App. 750 (1972) 197 N.W.2d 272

FISHER-NEW CENTER COMPANY
v.
DETROIT

Docket Nos. 11950, 11951, 11952, 11953, 11954, 11955.

Michigan Court of Appeals.

Decided February 25, 1972.

Honigman, Miller, Schwartz & Cohn (by John Sklar), for plaintiff.

Michael M. Glusac, Corporation Counsel, and Julius C. Pliskow and Lawrence W. Morgan, Assistants Corporation Counsel, for defendant city.

Ostrowski, Wilson, Belanger & Boman, P.C., for defendant Board of Education.

William L. Cahalan, Prosecuting Attorney, and William F. Koney, Assistant Prosecuting Attorney, for defendant county.

Before: V.J. BRENNAN, P.J., and J.H. GILLIS and VAN VALKENBURG,^[*] JJ.

J.H. GILLIS, J.

From the entry of a summary judgment (pursuant to GCR 1963, 117) in favor of the plaintiff in each of six cases which had been consolidated in recognition of their common issues, defendants bring this appeal.

Following the assessment by defendants of real property taxes against plaintiff for the years 1966, 1967, and 1968, an appeal was taken to the State Tax Commission (hereafter designated as STC) pursuant to § 152 of The General Property Tax Act (MCLA 211.152; MSA 7.210). Subsequently, and in compliance with § 53 of The General Property Tax Act (MCLA 211.53; MSA 7.97) plaintiff, following the payment under protest of said assessed taxes, instituted suits in the circuit court for refund. The common allegation of the plaintiff in the several complaints was as follows:

"Plaintiff avers that said assessment valuation, and the resultant assessments and tax levied against the property here involved, were far in excess of the applicable ratio of assessment to true cash value under the law of the State of Michigan in such case made and provided; were and are excessive and discriminatory and based upon wrong principles of assessments; that thereby plaintiff was over-assessed, deprived of its property without due process of law, and denied the equal protection of the law."

The STC's determination (which affirmed the taxing authorities' position) was then appealed directly to the Supreme Court upon grant of petition to bypass the Court of Appeals. In Fisher-New Center Co v State Tax Commission, 380 Mich 340 (1968), rev'd on rehearing, 381 Mich 713 (1969), the Court held invalid, because unrelated to true cash value, the formulas by which the plaintiff's real property had been assessed by the City of Detroit and the STC. In December, 1970, the STC rescheduled for hearing and determination both the assessments involved in the earlier appeal and also the assessments which had in the meantime been made by defendants and appealed by the plaintiff.^[1] As a result of said hearings, the STC, on January 22, 1971, issued formal orders determining the lawful assessment of the plaintiff's property for the years in question. Each of the several orders included a determination as to both the true cash value of the plaintiff's property and the prevailing ratio or level of assessment in the City of Detroit for the applicable year. None of the STC orders was appealed by either side.

Plaintiff then filed its motion for summary judgment in the instant consolidated circuit court actions based upon the unappealed revised assessments contained in the STC's decisions and orders. In response to said motion, defendants, although admitting the finality of the STC's findings regarding the true cash value, disputed the commission's determinations as to average levels of assessment. Partial summary judgments were entered on April 30, 1971 as to the uncontested portion of the refund accruing to plaintiff resulting from the STC's redetermination of the true cash value. Proceedings were then held on the contested portion of the refund claims resulting in the entry on May 14, 1971, of supplemental summary judgments in favor of the plaintiff pursuant to the STC's determination regarding the average levels of assessment. At the hearing on the motion for supplemental summary judgment, defendants introduced four affidavits in opposition to said motion, all of which alleged that the STC had made an error of law or had adopted wrong principles in arriving at the average level of assessment for the City of Detroit.

In lieu of these charges defendants bring this appeal claiming the circuit judge was in error in concluding he did not have jurisdiction to consider defendants' allegations, and, hence, granting plaintiff's motion for summary judgment, thereby denying a trial on said issue. Plaintiff, on the other hand, contends that the trial court was correct in ruling that the defendants had not pursued their appeal of the STC's decision through the proper channels (i.e., to the Court of Appeals), that the decision must be regarded as final in that court, it having no jurisdiction to review the matter. Therefore, plaintiff concludes there being no other material issue of fact presented so as to preclude the entry of a summary judgment, the circuit judge was not in error in doing so.

Public Act 270 of 1969 amended § 152 of The General Property Tax Act (MCLA 211.152; MSA 7.210) by providing that the "contested case" provisions of the Administrative Procedures Act of 1969 (MCLA 24.271-24.287; MSA 3.560[171-187]) are inapplicable to the STC, and that "in its determination, art 6, § 28 of the Constitution of the State of Michigan shall apply." Section 28 provides that "in the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation." Thus, the standard of review from an STC determination has been established — its decision is final unless fraud, error of law, or misapplication of principles is demonstrated. As for the avenues of review that are open to a particular entity, resort must be had to the applicable statutes for such a determination.

At the outset, a basic distinction must be recognized between the position of the two different entities who would seek to appeal from an STC determination. While the Legislature has given taxpayers alternative remedies — of either (1) appealing to the STC (pursuant to § 152 of The General Property Tax Act, MCLA 211.152; MSA 7.210) and/or (2) paying the tax under protest and suing in the circuit court for refund^[2] (pursuant to § 53 of The General Property Tax Act, MCLA 211.53; MSA 7.97) — it has not expressly provided such alternative remedies to the taxing authorities. Section 53 of The General Property Tax Law is solely a remedy granted to a taxpayer. Nothing in said section authorizes a taxing entity to use such a proceeding. Hence, the only remedy provided under the statute for a taxing authority that is aggrieved by a decision of the STC is to prosecute an appeal to the appellate courts of this state. None of the cases cited by the appellants nor any that have been found by this Court support the argument that the assessing entities have a remedy under § 53. Said cases deal solely with the scope of a taxpayer's right to bring a circuit court suit under § 53 of the act for recovery of allegedly excessive taxes. Moreover, the decisions make clear that even the taxpayer is bound by a STC determination in the absence of proof of fraud, error of law, or application of wrong principles.

Perhaps the confusion over the applicability of § 53 results from the fortuitous circumstance that although § 152 of The General Property Tax Law authorizes the STC to hear assessment appeals, it fails, however, to explicitly provide the commission with authority to order or enter judgment for the enforcement of its refund orders. Therefore, as an excess of caution, lawyers, who have appeals pending before the STC and whose clients are obligated, during the pendency of appeal, to pay the tax, do frequently advise their clients to pay the tax under protest and commence a § 53 action for refund. However, as the language of § 53 clearly demonstrates^[3] the remedy was provided to enable a taxpayer to recover a refund of taxes that are shown to be void as a result of a determination on the merits by the circuit court and was not designed as an aid in the enforcement of orders of the STC. Minor Lumber Co v Alpena, 97 Mich 499, 500 (1893); Turnbull v Alpena Twp, 74 Mich 621, 627 (1889).

In the case at bar the taxing authorities did not appeal the STC's determination against them to our Court as all agree they might have done. The taxpayer, by making use of his alternative remedy under § 53 during the pendency of his appeal to the STC, in order to protect himself in case the commission's determination was adverse to him, cannot be said to have given the taxing authorities an alternative forum in which to review the decision of the STC when said commission held against it. The taxpayer no longer needed his alternative remedy once it won before the STC. His utilization of the refund action as a means or vehicle of enforcing the STC order did not permit a reopening of the meritorious issues decided by the STC. As subordinate officials under the STC's supervisory jurisdiction, the assessing authorities' position is wholly different from the statutory remedy accorded solely to a taxpayer under § 53 of the act.

Under defendants' theory herein, the city need only refuse to refund the excess tax determined by the STC, relegate the taxpayer to an action in circuit court, and then demand a retrial of the same factual issues already decided by the STC. When the STC's decision determining that the assessment was excessive became final, the city became obliged to refund the taxes excessively collected on the basis of that erroneous assessment. That obligation to make refund arose by implication under the provisions of The General Property Tax Law authorizing the STC to hear and decide tax assessment appeals and conferring on the STC general supervisory authority over subordinate tax assessing officials. The city's obligation to refund taxes that the STC determines have been excessively assessed and collected does not depend on whether the taxes excessively collected have been paid under protest or whether an action for refund has been commenced under § 53 of The General Property Tax Law.

The circuit court had no alternative but to grant the motion for summary judgment directing the payment of a refund of the taxes. With respect to defendants-appellants the STC decision had become final.

Affirmed. Costs to appellee.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] Pending the hearing and determinations of said appeals, plaintiff likewise paid these subsequent assessments under protest and instituted circuit court actions seeking refunds.

The circuit court suits reached the pretrial stage prior to the STC scheduling of the pending appeals. Plaintiff requested the circuit judge, who was conducting the pretrials, to adjourn said pretrials for the specific reason that the STC had already acquired prior jurisdiction to determine the lawful assessments for the subject property. Plaintiff contended the STC decision would be determinative of the issues raised in the circuit court suits. The court agreed with this contention and adjourned the pretrial hearings to await the STC determination. Defendants' application for leave to appeal this ruling to the Court of Appeals was denied.

[2] The practice of taxpayers challenging the validity of a tax commission decision by a § 53 suit for refund is well established in this state. Kingsford Chemical Co v City of Kingsford, 347 Mich 91 (1956); Naph-Sol Refining Co v Twp of Muskegon, 346 Mich 16 (1956); Helin v Grosse Pointe Twp, 329 Mich 396 (1951); Fruehauf Trailer Co v Detroit, 325 Mich 407 (1949); Moran v Grosse Pointe Twp, 317 Mich 248 (1947); S S Kresge Co v Detroit, 276 Mich 565 (1936); Hoerner-Waldorf Corp v Ontonagon, 26 Mich App 542 (1970); Hudson-Webber Realty Co v Southfield, 18 Mich App 66 (1969).

[3] "The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in such protest." (Emphasis supplied.)