S T A T E O F M I C H I G A N C O U R T O F A P P E A L S EFFIE ELLEN MULCRONE and MARY THERESA MULCRONE TRUST, UNPUBLISHED October 24, 2017 Petitioner-Appellant, V No. 336773 Tax Tribunal CITY OF ST. IGNACE, LC No. 16-005490-TT Respondent-Appellee. Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ. PER CURIAM. In this property tax dispute, petitioner, the Effie Ellen Mulcrone and Mary Theresa Mulcrone Trust ( the Trust ), appeals by right an order entered by the Michigan Tax Tribunal denying petitioner s motion for reconsideration of the tribunal s prior dismissal of petitioner s untimely appeal. Petitioner does not appeal the tribunal s jurisdictional decisions, but contends that it received constitutionally insufficient notice of the pending action from respondent, the City of St. Ignace. For reasons set forth more fully below, we affirm the tribunal s orders and reject petitioner s claim of a constitutional violation. I. PERTINENT FACTS AND PROCEDURAL HISTORY This case involves a dispute over the uncapping and reassessment of the taxable value of two properties belonging to petitioner. In a letter dated August 2, 2016, respondent s assessor notified petitioner s co-trustee, Michael Lilliquist, that it was uncapping the taxable value of two properties belonging to petitioner as of 2005 because of the discovery of the death of the last original grantor of the Trust. The letter notified petitioner that the Mackinac County Treasurer s Office would be sending a bill in accordance with the uncapping. It further apprised petitioner that it had the right to appeal the assessor s decision in Michigan s Tax Tribunal, and provided the tribunal s address, telephone number, and fax number. The letter did not inform petitioner that it had 35 days to initiate its appeal. According to Lilliquist s affidavit, he called the assessor s office within a few days of receiving the letter to obtain information about the appeals process, and was told that the [tribunal] would meet in December. Lilliquist took this to mean that he wouldn t need to appeal until December. He telephoned the assessor s office again on September 20, 2016, to -1-
ask about the proper way to appeal to the Tax Tribunal for the December meeting, received the necessary forms from the assessor s office, verified with the Tax Tribunal that they were the forms he needed, and began to prepare his appeal. It was then that he noticed that there was a reference to a 35-day deadline to appeal. He confirmed the deadline with the tribunal and explained that this was the first he had heard of it. In the meantime, Lilliquist stated in his affidavit, I had received delinquent tax notices from the Mackinac County Treasurer. Lilliquist said that he telephoned the county treasurer s office and explained that no one had informed him about the deadline to appeal. The Mackinac County Treasurer s office then sent Lilliquist a letter dated October 14, 2016, stating that petitioner had until November 14, 2016, either to pay the taxes due because of the August uncapping or to provide proof that petitioner had filed an appeal with the Tax Tribunal. According to his affidavit, Lilliquist interpreted this as meaning that he had until November 14, 2016 to file an appeal, so he hired an attorney to assist him in filing the appeal before what he perceived to be the deadline. Petitioner filed a petition in the Tax Tribunal on November 14, 2016, asserting that respondent s assessor lacked the authority to uncap the two parcels at issue because there was no transfer of ownership. Petitioner stated in the alternative that, if indeed an occurrence in 2005 changed the capping status of the parcels, respondent had constructive as well as actual notice of the occurrence at that time. Petitioner additionally asserted that the uncapping violated its constitutional right to due process because respondent s procedures and actions are not reasonable, do not substantially advance a legitimate governmental interest, and have denied Petitioner an opportunity to be heard in a meaningful time and manner. The tribunal responded with an order holding petitioner in default for failure to file the proper documents 1 and to pay the pertinent filing fee. Petitioner filed an amended petition that reiterated petitioner s assertions why respondent should not have uncapped the parcels, and asserted the due process objections that are the subject of this appeal. The Tax Tribunal dismissed the case as not timely filed, citing MCL 205.735a, and advised petitioner of its appeal rights. Petitioner then filed a motion for reconsideration asserting, among other things, that respondent violated petitioner s constitutional right to due process. Petitioner pointed out that State Tax Commission (STC) Bulletin 8 of 1996 indicated that an assessor uncapping the value of a parcel because its owner did not notify the assessor of a transfer of ownership must inform the parcel owner that he or she had 35 days to appeal the uncapping decision to the Tax Tribunal. Petitioner observed that respondent s August 2, 2016 uncapping letter did not mention the 35-day window of opportunity to appeal the decision and that the county treasurer had informed it that it had to file an appeal by November 14, 2016. The Tax Tribunal denied petitioner s motion for reconsideration, noting in its written opinion that it did not have jurisdiction over the matter because petitioner had not timely filed its appeal, and concluding that petitioner had not presented any evidence that would compel a 1 Petitioner electronically filed its appeal on an Entire Tribunal Non-Property Tax Petition, rather than on a petition relating to property tax. -2-
different outcome. The tribunal added that it did not have the equitable powers necessary to waive or extend the deadline for filing the appeal. For reasons discussed below, the tribunal did not address petitioner s constitutional violation claim. II. ANALYSIS Petitioner contends on appeal that the Tax Tribunal committed reversible error when it concluded that Respondent s notice of uncapping did not deprive Petitioner of proper constitutional due process. Our review of a final decision by the [Michigan Tax Tribunal] is limited. Detroit Lions, Inc v City of Dearborn, 302 Mich App 676, 691; 840 NW2d 168 (2013). Where fraud is not alleged, we review the tribunal s decision for misapplication of the law or adoption of a wrong principle. Id. We first note that petitioner does not challenge the Tax Tribunal s decisions that it lacked jurisdiction to consider petitioner s untimely filed petition. MCL 205.735a(6) authorizes the tribunal to exercise jurisdiction where invoked by a petitioner filing a written petition within 35 days after the final decision, ruling, or determination. It is undisputed that petitioner filed its petition more than 35 days after receiving notification of respondent s decision to uncap and reassess the taxable value of certain properties. Because the Tax Tribunal lacked the statutory authorization to consider an untimely filed petition, the tribunal properly dismissed it. In its motion for reconsideration, petitioner failed to demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error[.] MCR 2.119(F)(3). Petitioner did not demonstrate a palpable error that would cause the Tax Tribunal to render a different jurisdictional decision under MCL 205.735a(6), nor allege facts that would establish the tribunal s jurisdiction under some other statute, such as MCL 211.53a. 2 Accordingly, the tribunal correctly denied petitioner s motion for reconsideration. The basis of this appeal is petitioner s assumption that, although the Tax Tribunal did not have the statutory authority to consider its petition, the tribunal nevertheless considered and rejected petitioner s constitutional violation claim. Contrary to petitioner s assumption, however, the Tax Tribunal does not have jurisdiction over constitutional questions.... Spranger v City of Warren, 308 Mich App 477, 484; 865 NW2d 52 (2014), quoting WPW Acquisition Co v City of Troy (On Remand), 254 Mich App 6, 8; 656 NW2d 881 (2002). Thus, the Tax Tribunal did not commit any error of its own; it simply lacked the authority to consider whether the notice sent by respondent s assessor was sufficient to satisfy petitioner s constitutional right to procedural due process. Id. 2 MCL 211.53a provides: Any taxpayer who is assessed and pays taxes in excess of the correct and lawful amount due because of a clerical error or mutual mistake of fact made by the assessing officer and the taxpayer may recover the excess so paid, without interest, if suit is commenced within 3 years from the date of payment, notwithstanding that the payment was not made under protest. -3-
The gravamen of petitioner s claim on appeal is that respondent s August 2, 2016 letter provided constitutionally deficient notice because it did not comply with STC Bulletin 8 of 1996 and inform petitioner of the deadline for filing an appeal in the Tax Tribunal. This issue comes to the Court unpreserved because it was not raised and decided by a lower court or administrative tribunal. 3 Gen Motors Corp v Dep t of Treasury, 290 Mich App 355, 386: 803 NW2d 698 (2010). Although this Court need not address an unpreserved issue, it may overlook preservation requirements when the failure to consider an issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Id. at 387. Because the issue petitioner raises presents a question of law and the facts necessary to resolve it have been presented, we may address it. Id. This Court reviews unpreserved claim[s] of constitutional error for plain error affecting the outcome of the proceeding. Lima Twp v Bateson, 302 Mich App 483, 503; 838 NW2d 898 (2013). We review de novo whether a party was denied due process. Id. The United States and the Michigan Constitutions guarantee that no person shall be deprived of life, liberty or property, without due process of law. US Const, Am XIV, 1; Const 1963, art 1, 17. An owner of real property is entitled to the protection of constitutional due process with respect to the assessment and collection of property taxes. Spranger, 308 Mich App at 482-483. A fundamental requirement of due process... is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Sidun v Wayne Co Treasurer, 481 Mich 503, 509; 751 NW2d 453 (2008), quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950). Petitioner contends that the August 2, 2016 letter provided constitutionally insufficient notice because it did not fulfill the notice requirements of the STC s Bulletin No. 8 of 1996. This bulletin, issued May 6, 1996, was addressed to assessors, equalization directors, and treasurers, and concerned the PROCEDURES TO USE WHEN A 1995 TRANSFER OF OWNERSHIP IS DISCOVERED AFTER THE ADJOURNMENT OF THE 1996 MARCH BOARD OF REVIEW. Although the bulletin applied specifically to the uncapping of a 1996 taxable value, the bulletin stated that it would also apply in the same situation in future years. Section A of the bulletin addressed corrective procedures to take when a property s taxable value is not uncapped due to a failure on the part of the transferee to timely file a property transfer affidavit. See MCL 211.27a(6)(e) (defining transfer of ownership to include [a] change in the sole present beneficiary or beneficiaries of a trust, except under certain conditions inapplicable here). Relevant to the instant appeal, when an assessor believes a 3 The circuit court was the proper forum in which to raise petitioner s constitutional question. WPW Acquisition Co v City of Troy (On Remand), 254 Mich App 6, 8; 656 NW2d 881 (2002). Although the question of constitutionally sufficient notice is related to the Tax Tribunal s jurisdictional decision, the two matters need not, nor can they be, addressed by the same forum. Id. at 10. The decision regarding the [tax matter] was not required for the circuit court s consideration of the constitutional question. Id. -4-
transfer of ownership has occurred, the assessor is required immediately to uncap the taxable value of the property and enter the new taxable amount on the assessment roll. In addition, the assessor must immediately inform the taxpayer in writing that a transfer of ownership determination has been made and the taxable value of the property has been uncapped. In addition, [t]he assessor shall... advise the owner of his/her right to appeal to the Michigan Tax Tribunal by letter within 35 days of the notice. STC Bulletin No. 8 of 1996, A(5). Petitioner interprets this sentence to mean that the August 2, 2016 letter should also have informed petitioner of the 35-day deadline to appeal the decision to uncap the taxable value of the subject properties, and contends that because it indisputably did not convey such information, the notice provided by the letter was constitutionally insufficient. We conclude that the notification satisfied the minimum requirements of due process. The notification identified which properties were being uncapped, the years for which they were being uncapped (2005 forward), and the reason for the uncapping. Enclosed with the letter were copies of assessment records and tax records showing the difference between the amount of taxes paid and the amount that should have been paid had the properties been uncapped in 2005, and the letter informed petitioner that the Mackinac County Treasurer s Office would send out tax bills for the difference. Further, the notification informed petitioner that it had the right to appeal the uncapping and that all appeals must be made to Michigan s Tax Tribunal, and provided the tribunal s mailing address and telephone and fax numbers. Lilliquist, petitioner s co-trustee, stated in his affidavit that he contacted the assessor s office a few days after receiving this letter, thus establishing that petitioner had actual notice of the uncapping and of the right to appeal the assessor s determination in the Tax Tribunal. In short, respondent s letter met the minimum requirements of constitutional due process because it apprise[d] [petitioner] of the pendency of the action and afford [petitioner] an opportunity to present [] objections. Sidun, 481 Mich at 509 (quotation marks and citation omitted). Further, petitioner errs in concluding that respondent s undisputed failure to comply with the requirements of the STC s bulletin supports a constitutional violation claim. The STC bulletin does not have the force or effect of law. It is neither a statute nor a rule as defined by Michigan s Administrative Procedures Act of 1969 (APA), MCL 24.201 et seq. 4 It merely 4 The APA s definition of rule expressly excludes [a]n intergovernmental, interagency, or intra-agency memorandum, directive, or communication that does not affect the rights of, or procedures and practices available to, the public. MCL 24.207(g). As discussed elsewhere in this opinion, the bulletin instructs assessors, equalization directors, and treasurers of the procedures they should follow in response to a transfer of ownership. As such, it neither diminishes nor increases the rights of the public, nor does it relate to any procedures or practices available to members of the public. See Schinzel v Dep t of Corrections, 124 Mich App 217; 333 NW2d 519 (1983) (holding that the department s purported intra-agency policy directive that inmates could not receive postage stamps through the mail interfered with the rights and practices available to the public because it was members of the public who sent the postage stamps to inmates; therefore, the directive had to be promulgated as a rule in accordance with the requirements of the APA before it could take effect). -5-
instructs assessors, equalization directors, and treasurers in the procedures to follow in certain transfer of ownership situations. Assuming for the sake of argument that respondent s failure to advise petitioner in the August 2, 2016 letter of the 35-day deadline to appeal the uncapping constituted negligence, said negligence did not rise to the level of a constitutional violation. If a notice apprise[s] interested parties of the pendency of the action and afford[s] them an opportunity to present their objections, Mullane, 339 US at 314, failure of the notice to provide additional information does not render the information that it does provide constitutionally insufficient. The Constitution does not require strict adherence to the STC s bulletins. Rather, what it demands is that respondent s notice be reasonably calculated to alert petitioner to the pending action, i.e., the uncapping and reassessment of the taxable values of certain properties, and collection of the resulting taxes owed, and the avenues available for challenging that action. As indicated above, the August 2, 2016 letter informed petitioner in detail of respondent s determinations and of petitioner s right to challenge those decisions in the Michigan Tax Tribunal; it also provided contact information for the tribunal so that petitioner could pursue its right of appeal. Under the circumstances, the fact that the letter did not comply with the corrective procedure outlined in the STC s bulletin does not rise to the level of a constitutional violation. Petitioner implies that, although he contacted the assessor s office a few days after receiving the notification letter, respondent did not properly inform him of the deadline for filing an appeal in the Tax Tribunal. According to Lilliquist s affidavit, someone at the assessor s office told him that the [Tax Tribunal] would meet in December. However, stating that the tribunal would meet in December is not the same as saying that petitioner had until December to file its petition. Further, it seems unreasonable for a taxpayer to interpret the fact that the tribunal was hearing appeals in December to mean that he or she had until December to initiate an appeal. Lillquist also stated in his affidavit that he received a letter from the Mackinac County Treasurer s Office stating that he had until November 14, 2016 to file his appeal with the Tax Tribunal. This, too, is a misinterpretation. The letter, dated October 14, 2016, stated that petitioner had until November 14, 2016 to pay without added interest the tax due from the August uncapping, or to provide proof that petitioner had filed an appeal in the Tax Tribunal. Given that Lilliquist had verified with the Tax Tribunal in September that the 35-day deadline for initiating an appeal applied, and knowing it had passed, it is extraordinary to interpret the Mackinac County Treasurer s letter as somehow extending the tribunal s filing deadline. Lilliquist stated in his affidavit that he had never been involved in a property tax proceeding, and that he knew after receiving the letter from the Mackinac County Treasurer s Office that he needed legal assistance to assist him with the appeal. However, this unfamiliarity with property tax proceedings and the affect it may have had on Lilliquist s decisions and assumptions cannot serve as the basis of a viable constitutional claim. The essence of petitioner s argument is that the assessor s office could have provided more information; specifically, the deadline information mandated by STC Bulletin 8 of 1996. Petitioner argues that, under the due process analysis set forth in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976), 5 conveying the deadline to appeal, as mandated by 5 The Mathews Court identified the following as considerations in a due-process analysis: -6-
the STC s corrective procedures, would not impose additional fiscal or administrative burdens on respondent. However, the question is not whether respondent could have provided more information, but whether the information provided was constitutionally sufficient. Moreover, Mathews speaks to additional proceedings, not to additional information that might be included in a notice that already fully informs the taxpayer of the pending action and of his or her opportunity to challenge the action. 6 Petitioner also points to the thorough explanation of the statutes and rules governing appeals from final decisions by the Tax Tribunal as a good example of how to provide notice that is reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to be heard. Here, however, petitioner compares apples with oranges, as the Tribunal s explanation of how, where, and when to appeal its decisions is part of the post-deprivation process, whereas petitioner claims constitutional insufficiency in the pre-deprivation process. III. CONCLUSION We conclude that respondent s August 2, 2016 letter to petitioner provided constitutionally sufficient notice to petitioner that respondent had uncapped and reassessed the taxable values of certain properties and intended to collect taxes owed on those properties, and it provided petitioner with information to challenge those determinations in the Tax Tribunal. Although the notification could have informed petitioner that he had 35 days to initiate an appeal of respondent s determination, in keeping with the mandate of STC Bulletin 8 of 1996, the absence of that information does not rise to the level of a constitutional violation. Affirmed. /s/ Kirsten Frank Kelly /s/ Jane M. Beckering /s/ Michael J. Riordan First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893, 903; 47 L Ed 2d 18 (1976).] 6 At issue in Mathews was whether a person whose social security benefits had been terminated had been afforded procedural due process. The discussion about the fiscal and administrative burdens that the additional or substitute procedural requirement would entail, id., revolved around the public interest, i.e., the administrative burden and other societal costs associated with requiring evidentiary hearings as a matter of constitutional right. Id. at 347-349. -7-