Vulic v. Dep't of Treasury, 909 N.W.2d 487, 321 Mich. App. 471 (2017)

Sept. 26, 2017 · Court of Appeals of Michigan · No. 333255

909 N.W.2d 487, 321 Mich. App. 471

Davor VULIC, Petitioner-Appellant,
v.
DEPARTMENT OF TREASURY, Respondent-Appellee.

No. 333255

Court of Appeals of Michigan.

Submitted July 11, 2017, at Lansing.
Decided September 26, 2017, 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Adam P. Sadowski, Assistant Attorney General, for respondent.

Legalquest Network, PC (by Roger R. Rathi and Aaron D. Ingber ) for petitioner.

Before: Markey, P.J., and Ronayne Krause and Boonstra, JJ.

Boonstra, P.J.

Petitioner appeals by right the Michigan Tax Tribunal's (the Tribunal) grant of summary disposition in favor of respondent. Because we hold that summary disposition was properly granted, but do so primarily for different reasons than those cited by the Tribunal, we affirm in part and vacate in part the Tribunal's final opinion and judgment, and we remand for entry of an order granting summary disposition in favor of respondent for the reasons stated in this opinion.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Petitioner purchased 1,799 cartons (each carton containing 10 packs) of cigarettes from an out-of-state business and shipped them to a friend in Bosnia-Herzegovina. The cigarettes were purchased with funds from an account in petitioner's name. The friend reimbursed petitioner (or paid him in advance) for his costs in obtaining and shipping the cigarettes, and petitioner made no profit from the endeavor. His friend asserted via letter that all relevant taxes and duties in Bosnia-Herzegovina were appropriately paid. The cigarettes were eventually sold at petitioner's friend's store. No taxes were paid for the cigarettes in Michigan, and neither petitioner nor the out-of-state business was licensed to sell or receive cigarettes in Michigan. Respondent assessed tax on petitioner under the Tobacco Products Tax Act (TPTA), MCL 205.421 et seq . Petitioner contested the tax, asserting that he should not be liable for taxes on the cigarettes because he was not a "consumer" of the cigarettes, noting that the cigarettes were located in Michigan for less than 24 hours, the cigarette cartons were never opened in Michigan, the cigarettes were never smoked in Michigan, and all relevant taxes were paid at their final destination. The Tribunal disagreed. This appeal followed. We note that the only issue before us is whether petitioner is personally liable for taxes under the TPTA, not whether petitioner's actions were otherwise lawful.

II. STANDARD OF REVIEW

We review de novo the Tribunal's grant of summary disposition. Paris Meadows, LLC v. Kentwood , 287 Mich. App. 136, 141, 783 N.W.2d 133 (2010). We generally give deference to an administrative agency's interpretation of a statute the agency is delegated to administer, but we are not bound to such an interpretation. Bechtel Power Corp. v. Dep 't of Treasury , 128 Mich. App. 324, 329, 340 N.W.2d 297 (1983). Notwithstanding any deference that might be afforded to the Tribunal, we review de novo the interpretation and application of statutory language. Paris Meadows , 287 Mich. App. at 141-142, 783 N.W.2d 133. Plain and unambiguous language in a statute must be enforced as written, and a forced construction or implication will not be upheld. Sebastian J Mancuso Family Trust v. City of Charlevoix , 300 Mich. App. 1, 4-5, 831 N.W.2d 907 (2013).

III. ANALYSIS

The TPTA " 'can aptly be described as a pervasive group of tobacco product regulations....' " Value, Inc. v. Dep't of Treasury , 320 Mich. App. 571, 577, 907 NW2d 872 (2017), quoting People v. Beydoun , 283 Mich. App. 314, 328, 770 N.W.2d 54 (2009). It " 'contains detailed definitions, licensing and stamping requirements, recordkeeping and document maintenance obligations, schedules of tax rates, civil and criminal penalties for violations of the TPTA, procedures governing seized property, and a delineation of tobacco tax disbursements for various purposes.' " Value, Inc., 320 Mich.App. at 577, 907 N.W.2d 872., quoting Beydoun , 283 Mich.App. at 328, 770 N.W.2d 54. "[T]he TPTA is at its heart a revenue statute, designed to assure that tobacco taxes levied in support of Michigan schools are not evaded." Value, Inc. , 320 Mich App at 577, 907 N.W.2d 872. (quotation marks and citations omitted; alteration in original).

Petitioner argues that he is not subject to tax under the TPTA because he was not a "consumer" of the tobacco products at issue. We disagree.

The TPTA provides, in part, that "a person shall not purchase, possess, acquire for resale, or sell a tobacco product as a manufacturer, wholesaler, secondary wholesaler, vending machine operator, unclassified acquirer, transportation company, or transporter in this state unless licensed to do so." MCL 205.423(1). Under the statutory definitions, petitioner was either a "transporter"¹ or an "unclassified acquirer"² of the cigarettes at issue. It is undisputed that petitioner was not licensed under the TPTA. Petitioner therefore was not entitled under the TPTA to "purchase, possess, acquire for resale, or sell" cigarettes. Id .

The TPTA further provides for a tax to be levied on the sale of tobacco products. MCL 205.427(1). Most licensees are required to file a monthly return reporting specified information, MCL 205.427(2), and to "pay ... the tax levied in subsection (1) for tobacco products sold during the calendar month covered by the return, less [specified] compensation," MCL 205.427(3). In addition, MCL 205.428(1) provides:

A person, other than a licensee, who is in control or in possession of a tobacco product contrary to this act, who after August 31, 1998 is in control or in possession of an individual package of cigarettes without a stamp in violation of this act, or who offers to sell or does sell a tobacco product to another for purposes of resale without being licensed to do so under this act, shall be personally liable for the tax imposed by this act, plus a penalty of 500% of the amount of tax due under this act.

Because petitioner was not a licensee under the TPTA, respondent assessed taxes on petitioner under MCL 205.428(1).

Petitioner argues, however, that he is not liable for tax under the TPTA because "[i]t is the intent of [the TPTA] to impose the tax levied under this act upon the consumer of the tobacco products by requiring the consumer to pay the tax at the specified rate." MCL 205.427a. Petitioner's argument is therefore premised on a reading of MCL 205.427a that would restrict respondent's right to impose a tax under the TPTA except "upon the consumer of the tobacco products." Id .

In the overall context of the TPTA and its pervasive regulatory scheme, however, it is clear that taxes may be imposed under the act not only on the ultimate "consumer" of cigarettes, but on licensees and other persons. MCL 205.427(3) and (8). Indeed, the TPTA defines "person" to include inanimate legal entities other than individuals who might "consume" a cigarette, MCL 205.422(o).³ The TPTA further provides that "[a] person liable for the tax may reimburse itself by adding to the price of the tobacco products an amount equal to the tax levied under this act." MCL 205.427(8). We therefore reject petitioner's interpretation of the TPTA as allowing for a tax to be imposed only on a "consumer." Petitioner's interpretation would improperly render much of the TPTA nugatory. See Ally Fin. Inc. v. State Treasurer , 317 Mich. App. 316, 330, 894 N.W.2d 673 (2016) (" 'Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.' ") (citation and alteration omitted). Rather, it is clear that the legislative intent expressed in MCL 205.427a is merely that the persons assessed taxes under the TPTA will ultimately pass those taxes along to consumers. The fact that a person does not do so does not serve to except him or her from the reach of the TPTA when he or she elects to engage in conduct falling within its ambit of the TPTA.

The question thus becomes whether petitioner satisfies the conditions for tax liability under MCL 205.428(1). We conclude that he does. At a minimum, petitioner was in "control or in possession of a tobacco product contrary to [the] act." MCL 205.423(1). This alone is sufficient for personal tax liability.

In addition, petitioner "[sold] a tobacco product to another for purposes of resale without being licensed to do so under [the] act...." Id . Under the TPTA, "sale" means "a transaction by which the ownership of tangible personal property is transferred for consideration and applies also to use, gifts, exchanges, barter, and theft." MCL 205.422(r). The Tribunal concluded that because petitioner merely passed the cigarettes on at cost, there was no consideration. Consideration is "a bargained-for exchange" with "a benefit on one side, or a detriment suffered, or service done on the other." Gen. Motors Corp. v. Dep't of Treasury , 466 Mich. 231, 238-239, 644 N.W.2d 734 (2002) (quotation marks and citation omitted). It is undisputed that petitioner acquired the cigarettes, paid for them, and transferred them to his friend, who compensated petitioner for petitioner's costs. It was therefore a sale, albeit one on which petitioner did not net a profit.⁴ Although petitioner argues that he used his friend's money to make the purchase and that he never actually acquired ownership of the cigarettes but was merely a "gratuitous bailee," nothing in the record supports that characterization apart from petitioner's own statement that he made no profit on the transaction. See 8A Am. Jur.2d, Bailments, § 2, p 522. A bailment is a change in possession, but not a change in title. See 8A Am. Jur. 2d, Bailments, § 1, p. 574. The transaction may well have been a bailment if, for example, petitioner's friend had ordered and agreed to pay for the cigarettes to be shipped to petitioner's home and then to be shipped to their next destination, leaving petitioner merely responsible for providing an interim location for the cigarettes. See id . However, on this record, the transaction was not a mere bailment because petitioner purchased the cigarettes, had them shipped to his home, shipped them to his friend, and received compensation. Moreover, even if this were not a "transaction by which the ownership of tangible personal property is transferred for consideration," MCL 205.422(r), it would be a gift. Consideration is not a factor in the case of use, gifts, or theft. See, e.g., Black's Law Dictionary (10th ed.) (defining "gift" as "[t]he voluntary transfer of property to another without compensation" and "gratuitous gift" as "[a] gift made without consideration, as most gifts are").⁵ We therefore conclude that the Tribunal erred by determining that MCL 205.428(1) does not provide for petitioner's tax liability as a person who sells or offers a tobacco product for the purposes of resale without a license.

We note that the Tribunal ultimately held that petitioner was in control or possession of many unstamped packages of cigarettes, notwithstanding his failure, before shipping the cigarettes out of the country, to open the cartons or the boxes in which the cigarettes were shipped and, thus, petitioner was liable under that portion of MCL 205.428(1) that establishes tax liability for an unlicensed person "in control or in possession of an individual package of cigarettes without a stamp in violation of this act...." Petitioner contended that by virtue of his failure to open the cartons or boxes that were indisputably in his possession and control, he somehow did not possess or control their individual contents. We find that argument to be unpersuasive because it rests on a strained construction of statutory language. We therefore affirm this aspect of the Tribunal's determination. However, for the reasons stated, we need not, and do not, rest our decision solely on this ground. We nonetheless invite the Legislature to clarify its use of the term "individual package" in this context to better aid taxing authorities in the future.

For all these reasons, we conclude that petitioner was subject to tax under the TPTA. We need not go any further. Our analysis, which is based on the plain language of MCL 205.428(1), provides for petitioner's tax liability without regard to whether petitioner was a "consumer" and without recourse to dictionary definitions or the definitions of "consumer" and "use" provided in in the Use Tax Act, MCL 205.91 et seq . The Tribunal therefore erred by engaging in that analysis.

We affirm in part and vacate in part the Tribunal's final opinion and judgment. We remand for entry of an order granting summary disposition in favor of respondent for the reasons stated in this opinion. MCR 7.216(A)(7). We do not retain jurisdiction.

Markey, P.J., concurred with Boonstra, J.

1 Under the TPTA, " '[t]ransporter' means [with certain exceptions not relevant here] a person importing or transporting into this state, or transporting in this state, a tobacco product obtained from a source located outside this state, or from any person not duly licensed under this act." MCL 205.422(y).

2 Under the TPTA, " '[u]nclassified acquirer' means [with certain exceptions not relevant here] a person ... who imports or acquires a tobacco product from a source other than a wholesaler or secondary wholesaler licensed under this act for use, sale, or distribution." MCL 205.422(z).

3 The TPTA defines "person" as "an individual, partnership, fiduciary, association, limited liability company, corporation, or other legal entity." MCL 205.422(o).

4 Courts do not generally inquire into the sufficiency of consideration. Harris v. Chain Store Realty Bond & Mtg. Corp. , 329 Mich. 136, 145, 45 N.W.2d 5 (1950). Here, it appears that petitioner agreed to purchase the cigarettes and ship them out of the country, and petitioner's friend agreed to either reimburse or pay petitioner upfront for petitioner's costs. The fact that the transaction did not result in monetary profit to petitioner does not compel the conclusion that there was no consideration or that no sale occurred. "When [two] competent parties, through a process of give and take, reach an agreement it can be presumed that the mutual promises were considered adequate." Id .

5 In certain circumstances not present here, a "gift" may be given as compensation for services rendered. See "remunerative donation" in Black's Law Dictionary (10th ed.) p. 595.

Ronayne Krause, J. (dissenting).

I respectfully dissent. I agree with the majority that the only issue before us is whether petitioner is personally liable for taxes under the Tobacco Products Tax Act (TPTA), MCL 205.421 et seq ., not whether his actions were otherwise lawful. However, I believe the majority misreads the plain language of the applicable statutes. I would reverse.

As an initial matter, I suspect that the unusual facts of this case may present a situation not anticipated by our Legislature and therefore that the Legislature did not think to cover this particular set of facts. However, be that as it may, we may not depart from the plain language of a statute even to avoid an absurd result. Piccalo v. Nix , 466 Mich. 861, 643 N.W.2d 233 (2002). In the event of any ambiguity in a revenue statute, the statute "must be construed against the taxing authority." Ecorse Screw Machine Prod. Co. v. Michigan Corp. & Securities Comm. , 378 Mich. 415, 418, 145 N.W.2d 46 (1966).

The TPTA defines the word "sale" as "a transaction by which the ownership of tangible personal property is transferred for consideration and applies also to use, gifts, exchanges, barter, and theft." MCL 205.422(r). The Tax Tribunal concluded that because petitioner merely passed the cigarettes on at cost, no consideration was provided and, by implication, none of the other transaction types that may be considered a sale occurred. Respondent's construction to the contrary would render nugatory almost the entirety of the statutory language, effectively deleting everything after "transferred." Courts must avoid construing statutes in such a way that any portion thereof is rendered nugatory. Ally Fin., Inc. v. State Treasurer , 317 Mich. App. 316, 330, 894 N.W.2d 673 (2016). A sale must entail more than merely transferring an item, and there is no reason not to defer to the Tax Tribunal's conclusion that some form of consideration is the touchstone. Consequently, petitioner is not personally liable for taxes under the TPTA for selling or offering to sell tobacco products.

Likewise, the majority's conclusion that the transfer must have been a gift if no consideration was exchanged would do the same: if literally any possible transfer would lead to liability, then the Legislature's specifications would be nugatory. Put another way, the Legislature must be presumed to have limited the situations in which transfer of ownership of tangible personal property would constitute a sale, or it would not have included "for consideration and applies also to use, gifts, exchanges, barter, and theft." MCL 205.422(r). Because we must avoid rendering any portion of a statute nugatory and must construe revenue statutes in favor of the taxpayer, and because petitioner's acts of passing the cigarette cartons on to his friend at cost do not seem to neatly fit any of the specified categories, I conclude that petitioner's actions do not constitute "sales" under the TPTA. If the Legislature had intended any transfer of cigarettes to be a sale, it would have defined "sale" more simply as "a transaction by which the ownership of tangible personal property is transferred." Incongruous as the result might be, we may not depart from the plain language of the statute as enacted by the Legislature.

Furthermore, I find nothing even slightly ambiguous about the term "individual package," both words being well understood and entirely clear in context. The majority concludes that because petitioner was in possession of unopened cartons of cigarettes, he must have been in control of the individual packages therein, completely eviscerating the Legislature's specification of "individual packages" in MCL 205.428(1).¹ We must presume that the Legislature specified this for some reason. Petitioner was never in possession of individual packages of cigarettes as individual packages. Again, we may not depart from the plain language of the statute as enacted by the Legislature, even if the result strikes us as strange. I do, however, concur with the majority's extension of an invitation to the Legislature to clarify the TPTA should this not have been its intended result.

Although not addressed by the majority, my conclusions require me to address a further provision of the TPTA under which personal tax liability may be imposed for being "in control or in possession of a tobacco product contrary to this act...." Respondent argues that petitioner is an "unclassified acquirer" under MCL 205.422(z) because he was "a person ... who imports or acquires a tobacco product from a source other than a wholesaler or secondary wholesaler licensed under this act for use, sale, or distribution." The TPTA expressly forbids, inter alia , the purchase or possession of tobacco by an unclassified acquirer without a license. MCL 205.423(1). Therefore, respondent somewhat confusingly appears to argue that if petitioner is an "unclassified acquirer," then by definition his lack of a license means his purchase or possession of the cigarettes was "contrary to this act" and that he is personally liable for the taxes. There is no dispute that petitioner acquired the cigarettes from an unlicensed source; the question is therefore whether he did so "for use, sale, or distribution." MCL 205.422(z).

As discussed, the Tax Tribunal properly found that no "sale" occurred. Neither "use" nor "distribution" is defined by the TPTA. However, "distribution" is generally understood to entail transferring something to multiple recipients, which clearly also did not occur. See "distribute" in Merriam-Webster's Collegiate Dictionary (11^th ed.). "[I]n doubtful cases, revenue statutes must be construed against the taxing authority." Ecorse , 378 Mich. at 418, 145 N.W.2d 46. It would be inappropriate to conclude that petitioner acquired the cigarettes for "distribution" because he clearly only acquired them for the purpose of passing them on to a single recipient. Consequently, the critical question is whether petitioner acquired the cigarettes for "use." The Tax Tribunal found that he did by referring to definitions of "consumer" and "use" provided in the Use Tax Act (UTA), MCL 205.91 et seq .

By default, our Legislature has instructed that "[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language" unless they have some "peculiar and appropriate meaning." MCL 8.3a. If an undefined word is common and lacks a unique legal meaning, courts consult a lay dictionary. People v. Thompson , 477 Mich. 146, 151-152, 730 N.W.2d 708 (2007). "It is a cardinal rule of statutory construction that the legislative intent must be gathered from the language used, if possible, and that such language shall be given its ordinary meaning unless a different interpretation is indicated." Goethal v. Kent Co. Supervisors , 361 Mich. 104, 111, 104 N.W.2d 794 (1960). Helpfully, the Legislature has expressly stated, "It is the intent of [the TPTA] to impose the tax levied under this act upon the consumer of the tobacco products by requiring the consumer to pay the tax at the specified rate." MCL 205.427a. However, like the word "use," the word "consumer" is undefined in the TPTA.

Both "use" and "consumer" are common words. The proper first resort should therefore have been to a dictionary, not to a different statutory scheme with a different intent and definitions crafted to serve that different intent. Respondent argues that this Court has held that it is appropriate to refer to a definition found in another statutory scheme, but that is a misreading or misunderstanding of what this Court has held. Rather, this Court held that ambiguous language in the TPTA should be construed in light of our Supreme Court's construction of similarly ambiguous language in the UTA. S. Abraham & Sons, Inc. v. Dep 't of Treasury , 260 Mich. App. 1, 14-15, 677 N.W.2d 31 (2003). There is no ambiguity at issue here. It is inappropriate to refer to a dictionary to define a word if an act provides its own definition.

Betten Auto. Center, Inc. v. Dep 't of Treasury , 478 Mich. 864, 864, 731 N.W.2d 424 (2007). However, here the Tax Tribunal simply lifted entirely a definition from one act and applied it to another without considering the different purposes behind the different acts.

In contrast to the TPTA, the UTA is an "excise or privilege tax" on "the use, storage or consumption of tangible personal property brought into the State in interstate commerce, after it has come to rest in this State." Western Electric Co. v. Dep't of Revenue , 312 Mich. 582, 595-596, 20 N.W.2d 734 (1945). "Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose," and they must be read together as a whole when interpreting any discrete provision therein. Detroit v. Mich. Bell Tel. Co. , 374 Mich. 543, 558, 132 N.W.2d 660 (1965), abrogated on other grounds by City of Taylor v. Detroit Edison Co. , 475 Mich. 109, 119, 715 N.W.2d 28 (2006). The definitions of "use" in MCL 205.92(b) and "consumer" in MCL 205.92(g) of the UTA were not intended to be read in complete isolation from the entirety of the UTA. In other words, the definitions must be understood in the context of any exemptions from applicability also included in the UTA. In particular, petitioner observes that "property purchased for resale" is explicitly exempt from the use tax. MCL 205.94(1)(c)(i ). The cigarettes did not and were not intended to come to rest in Michigan. The Tax Tribunal's rote application of definition from the UTA to the TPTA was, under the circumstances, improper and out of context.

According to Merriam-Webster's Collegiate Dictionary (11^th ed.), a "consumer" is, in relevant part, "one that utilizes economic goods" and to "consume" means, in relevant part, "to utilize as a customer." To "use" has several possible meanings, of which all relevant possibilities pertain to engaging in the consumption of something, putting something into action or service, or expending something. It is abundantly and readily obvious that barring a specific definition in the act to the contrary, the plain and unambiguous import of these words is that use or consumption for purposes of the TPTA means the final end goal of a cigarette: smoking it. It is therefore equally plain and unambiguous that petitioner was neither a consumer nor a user of the cigarettes.

It is undisputed that petitioner never intended to smoke the cigarettes, nor were any of the cigarettes ever smoked in Michigan. He therefore did not purchase them for "use" according to the common, everyday meaning of that word, which this Court must presume was the usage intended by the Legislature for purposes of the TPTA because it did not include a definition in the TPTA. Likewise, petitioner was not a "consumer" according to the common, everyday meaning of that word. The Tax Tribunal therefore erred by finding petitioner personally liable for the taxes assessed by respondent.

1 See also MCL 205.422(k) ("Individual package does not include cartons, cases, or shipping or storage containers that contain smaller packaging units of cigarettes.")