ALLIANCE OBSTETRICS GYNECOLOGY PLC v. DEPARTMENT OF TREASURY (2009)

In this statutory interpretation case, defendant appeals as of right from an order granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.

At all times relevant to the issue in this case, plaintiff Alliance Obstetrics & Gynecology, PLC, was a limited liability company (LLC) with its principal office located in Lansing. During the relevant tax year, plaintiff filed a Michigan Single Business Tax return and claimed a small business credit under MCL 208.36. According to plaintiff, it was entitled to a refund in the amount of $27,898. Defendant disagreed. For the purposes of calculating the small business credit under the Single Business Tax Act (SBTA), defendant interpreted MCL 208.2(2) and MCL 208.36 as adopting the federal “check-the-box” system. This means that business entities that elect treatment as a corporation for federal income tax purposes are also treated as a corporation for the calculation of the small business tax credit. Therefore, plaintiff's election to be treated as a corporation for federal income tax purposes was a binding classification for purposes of the SBTA. Pursuant to MCL 208 .36(2)(b)(i), a corporation whose officers earned more than $115,000 during the taxable year is not entitled to a small business tax credit. Accordingly, based on defendant's calculations, plaintiff was not entitled to a credit, but subject to additional tax liability. After a series of administrative appeals, the Court of Claims granted plaintiff's motion for summary disposition, rejecting defendant's interpretation of the statutes.

This Court reviews questions of statutory interpretation de novo. Halloran v. Bhan, 470 Mich. 572, 576; 683 NW2d 129 (2004). The primary goal of statutory interpretation is to give effect to the intent of the Legislature. People v. Williams, 475 Mich. 245, 250; 716 NW2d 208 (2006). The first step in determining the intent of the Legislature is to look to the language of the statute. People v. Lively, 470 Mich. 248, 253; 680 NW2d 878 (2004). If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted. Nastal v. Henderson & Assoc Investigations, Inc, 471 Mich. 712, 720; 691 NW2d 1 (2005). The Legislature is presumed to have intended the meaning it plainly expressed, People v. Gardner, 482 Mich. 41, 50; 753 NW2d 78 (2008); Rowland v. Washtenaw Co Rd Comm, 477 Mich. 197, 219; 731 NW2d 41 (2007), and clear statutory language must be enforced as written, Fluor Enterprises, Inc v. Dep't of Treasury, 477 Mich. 170, 174; 730 NW2d 722 (2007). “Where a tax statute is the object of judicial construction, ‘ambiguities in the language ․ are to be resolved in favor of the taxpayer.’ “ IBM v. Dep't of Treasury, 220 Mich.App 83, 86; 558 NW2d 456 (1996), quoting Michigan Bell Tel Co v. Dep't of Treasury, 445 Mich. 470, 477; 518 NW2d 808 (1994). However, tax statutes that grant tax credits or exemptions are to be narrowly construed in favor of the taxing authority because such statutes reduce the amount of tax imposed. Auto-Owners Ins Co v. Dep't of Treasury, 226 Mich.App 618, 621; 575 NW2d 770 (1995).

MCL 208.36 states in relevant part:

(2) The credit provided in this section shall be taken before any other credit under this act, and is available to any person whose gross receipts do not exceed ․ $10,000,000.00 for tax years commencing after 1991, and whose adjusted business income minus the loss adjustment does not exceed $475,000.00 for tax years commencing on or after January 1, 1985, subject to the following:

* * *

(b) A corporation other than a subchapter S corporation is disqualified if either of the following occur for the taxable year:

(i) Compensation and director's fees of a shareholder or officer ․ exceed $115,000.00 for tax years commencing after December 31, 1997.

“Corporation” is not explicitly defined in the SBTA. Defendant argues that, pursuant to MCL 208.2(2), the Legislature adopted by reference the federal internal revenue code definition of “corporation.” We disagree.

Federal tax law does not allow for the classification as an LLC. 26 CFR § 301.7701-2(a). Under federal tax law, businesses are treated either as corporations or partnerships. Id. “Corporation” is defined in 26 CFR § 301.7701-2(b), in relevant part, as “an association (as determined under § 301.7701-3).” 26 CFR § 301.7701-2(b)(2). 26 CFR § 301.7701-3 states, in relevant part:

a) In general. A business entity that is not classified as a corporation under § 301.7701-2(b)(1), (3), (4), (5), (6), (7), or (8) (an eligible entity) can elect its classification for federal tax purposes as provided in this section. An eligible entity with at least two members can elect to be classified as either an association (and thus a corporation under § 301.7701-2(b)(2)) or a partnership, and an eligible entity with a single owner can elect to be classified as an association or to be disregarded as an entity separate from its owner. Paragraph (b) of this section provides a default classification for an eligible entity that does not make an election․

In Kmart Michigan Prop Services, LLC v. Dep't of Treasury, ---Mich.App ----; --- NW2d ---- (Docket No. 282058, issued May 12, 2009), Kmart Michigan Property Services (KMPS) was a wholly owned subsidiary of Kmart Corporation (Kmart) formed as an LLC in Michigan. In KMPS's federal filing, it elected to be classified as a disregarded entity; therefore, the Department of Treasury argued that KMPS was not entitled to file a separate SBT return but should be included with Kmart's SBT return. This Court disagreed holding that “[n]either the SBTA nor the federal regulations require an entity to be consistent in its self-classifications with respect to its state and federal tax filings for a given year.” Id. slip op at 5. Further, this Court held “nothing in this subsection [MCL 208.2(2) ] indicates that entity classification elections in the federal tax code must be carried over to an entity's SBT filing.” Id.

In the present case, instead of electing to be classified as a disregarded entity, plaintiff elected to be classified as an association. Under federal tax law, an association is a corporation. Thus, plaintiff is classified as a corporation for federal income tax purposes. However, as this Court held in Kmart Michigan Prop Services, LLC, supra, how an entity elects to be classified under the federal “check-the-box” system does not determine how it will be classified for SBT purposes. Id. Further, plaintiff is an LLC, and under Michigan law LLCs are not corporations. Business entities such as Alliance that are neither a corporation nor a partnership should not be required to elect a classification inconsistent with its organization under state law. Therefore, plaintiff is not to be treated as a corporation for the purposes of calculating the small business tax credit and the income limitations under MCL 208.36(2) do not disqualify plaintiff from claiming the credit. Thus, plaintiff is entitled to receive the credit.

Affirmed.

PER CURIAM.