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Court of Appeals of Michigan.

VECTREN INFRASTRUCTURE SERVICES CORP., successor-in-interest to Minnesota Limited, Inc., Plaintiff-Appellant, v. DEPARTMENT OF TREASURY, Defendant-Appellee.

No. 345462

Decided: March 12, 2020

Before: Tukel, P.J., and Sawyer and Riordan, JJ. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and David W. Thompson and Justin R. Call, Assistant Attorneys General, for the Michigan Department of Treasury. Honigman Miller Schwartz and Cohn LLP (by Lynn A. Gandhi, Detroit, and June Summers Haas) for Vectren Infrastructure Services Corporation.

This case presents the complex question of how the gain on the sale of an out-of-state business, which conducts some of its business activities in Michigan, should be taxed under the Michigan Business Tax (MBT). Defendant, the Department of Treasury (the Department), applied the statutory formula and declined to allow calculation under an alternate formula. The trial court agreed with the Department. We agree, at least in part, with plaintiff and reverse.

Minnesota Limited, Inc. (MLI) was an S corporation headquartered in Big Lake, Minnesota, engaged in the business of constructing, maintaining, and repairing oil and gas pipelines, as well as providing HAZMAT response. MLI, which originated as a family business, had grown over the course of its 52-year history to employ more than 600 employees at seasonal peak and serve a 24-state territory. MLI's service territory primarily included locations in the northern Midwest, such as Minnesota, Wisconsin, Iowa, the Dakotas, and, in some years, the state of Michigan. MLI provided services to its customers on a contract-by-contract basis, such that MLI's project locations were different every year. At no time did MLI maintain a permanent business location in Michigan or retain permanent employees in the state.

Around the mid-1990s, MLI was owned 50-50 by two siblings; when one began experiencing health issues around 2010 and no longer wished to be involved in the company, the siblings decided to sell MLI. Notably, during the period that MLI was seeking a buyer in the summer of 2010, Enbridge Energy retained MLI to assist in the cleanup of a severe oil-pipeline spill in Kalamazoo, Michigan. MLI brought minimal equipment and employees to this project, which was performed, in part, during the off-season when the ground was frozen, making it difficult to service pipelines. MLI rented most of the equipment it used and hired Michigan union employees to perform the work.

While the Enbridge project was still ongoing, MLI sold all its assets on March 31, 2011, including capital assets and intangible assets of receivables, retainages, cash, prepaid expenses, inventory, and goodwill to Vectren (the Sale). MLI elected to treat the sale of its stock as a sale of its assets under the federal Internal Revenue Code, 26 USC 338(h)(10). The purchase price was $80,000,000.

MLI timely filed its MBT return for the 2010 tax year, as well as its MBT return for the period before the Sale, i.e., the short year between January 1, 2011 and March 31, 2011 (the Short Year). To accurately tax only Michigan business activity, the Michigan Business Tax Act (MBTA), MCL 208.1101 et seq., employs an apportionment formula: mainly, the MBTA determines tax liability by multiplying the taxpayer's preapportioned “tax base” by the taxpayer's “sales factor,” which is the taxpayer's Michigan sales divided by sales everywhere, to arrive at the taxpayer's Michigan tax base. The tax rate is then applied to this tax base. See MCL 208.1201(1); MCL 208.1301; MCL 208.1303(1). In its return for the Short Year, MLI included the Sale in its preapportioned tax base and in the denominator of the sales factor; i.e., MLI included the Sale in the “sales everywhere” part of the formula. Inclusion of the Sale in this manner resulted in a sales factor of 14.9860%.

In December 2014, the Department initiated an audit of MLI's MBT return for the 2010 calendar year and the Short Year between January 1, 2011 and March 31, 2011. For the Short Year, the auditor found that MLI had improperly included the gain from the Sale in the denominator of the sales factor, thereby overstating its total sales and reducing its Michigan tax liability. The auditor adjusted the sales factor by including the gain on the Sale in the preapportioned tax base but excluding it from the sales factor. This calculation increased the sales factor from 14.9860% to 69.9761%, resulting in additional tax liability. Thereafter, the Department issued an intent to assess for the tax deficiency.

MLI sent a letter to the Department asking for an informal conference and requesting alternative apportionment for the Short Year. In its request, MLI asserted that all the receipts and income from the Sale should be treated as a “sale” under MCL 208.1115(1) and should be sourced to Minnesota in the sales factor to arrive at an equitable apportionment. MLI posited that the Department's treatment of the Sale would result in an unconstitutional distortion by sourcing to Michigan a percentage of income “out of all proportion” with business actually transacted in the state and also attributing the long-term gain in the company's assets to Michigan. See MCL 208.1309. Alternatively, MLI asked that the Sale be treated as not subject to tax, given that it is unconstitutional to tax value earned outside the state's borders. MLI explained that the Sale was not conducted in MLI's regular course of business and, therefore, was nonbusiness income. MLI pointed out that other jurisdictions treat the liquidation of business assets as cessation of business activity rather than a transaction in the regular course of business, and that the Sale should therefore be treated as nonoperational, nonbusiness income earned from a company's business activities over time.

Ultimately, the Department denied MLI's alternative apportionment request. The Department first noted that MLI's burden was to show by clear and cogent evidence that the statutory formula is distortive before alternate apportionment is allowed. The Department found that MLI had failed to meet its burden, stating:

While you have provided detail on how the selling price was derived, you have not provided any evidence to the Department that the business activities in Michigan did not contribute to the gain realized or that the formula does not provide Michigan with an equitable allocation of income. Further, including gain in the tax base is not an unusual fact situation or one that necessarily demonstrates that application of the statutory apportionment formula does not reflect [MLI's] business activity in Michigan.

Consequently, the Department determined that MLI had not overcome the presumption that the statutory apportionment formula fairly represents MLI's business activity in Michigan for the period at issue. Soon after the denial, the Department issued its Final Assessment for the Short Year, reflecting $2,926,765.07 due including a penalty and interest.

Thereafter, plaintiff filed suit in the Court of Claims, raising four counts. In Count I, plaintiff alleged that the Department's failure to include the gain from the Sale in the sales-factor denominator for the Short Year results in a grossly distortive tax because the calculation used does not fairly represent MLI's business activities in the state and violates the Equal Protection, Due Process, and Commerce Clauses of the Constitution, necessitating the use of an alternative formula. In Count II, plaintiff alternatively alleged that the gain on the Sale was nonoperational, nonrecurring, nonbusiness income that should be excluded from MLI's tax base and that its inclusion results in taxation of extraterritorial values in violation of the Equal Protection, Due Process, and Commerce Clauses of the Constitution. Count III posited that the Department unlawfully calculated MLI's tax base by including the gain on the Sale; specifically, plaintiff alleged that under the plain language of the MBTA, the sale of shareholder's stock is not a “business activity” to be included in an S corporation's tax base and the federal method of accounting (i.e., MLI's election to treat the liquidation as a sale of assets under the Internal Revenue Code) is irrelevant. Count IV alleged that the penalty should be abated because plaintiff timely paid the tax on the basis of reasonable interpretations of the MBTA.

The parties filed cross-motions for summary disposition. After oral argument, the Court of Claims granted summary disposition for the Department. The court determined that the Department had properly included the Sale in MLI's tax base because the Sale qualified as “business income” within the meaning of the MBTA. In so concluding, the court rejected plaintiff's argument that the Sale does not qualify as “business income” because it cannot be “attributable” to MLI and relied heavily on the fact that the shareholders had elected to treat the Sale as a sale of all of MLI's assets under 26 USC 338(h)(10). As to MLI's request for alternate apportionment, the court, relying on Trinova Corp. v. Dep't of Treasury, 433 Mich. 141, 159 n. 21, 445 N.W.2d 428 (1989), concluded that MLI's dispute was simply a disagreement with the inclusion of the Sale in the computation of its tax base, which the court stated did not concern the constitutionality of the apportionment formula. For this reason alone, the court held that “plaintiff's appeal to alternative apportionment [wa]s unavailing.” As to plaintiff's contention that the tax imposed taxed extraterritorial activity, the court determined that plaintiff had failed to provide any documentary evidence in support of its argument. The court viewed the historical data as merely an indication that MLI's Michigan activity for the tax years at issue was out of proportion with activity in previous years and noted that no evidence had been submitted to show that MLI's goodwill should be sourced entirely to Minnesota. Given its conclusion that plaintiff's claim of unfair apportionment was meritless, the court held that plaintiff's constitutional claims failed as well. Finally, the court rejected plaintiff's claim that the penalty should be waived because plaintiff had failed to meet its burden to justify abatement of the penalty.

Plaintiff raises several issues on appeal. We need not address all of these issues as we find one to be dispositive in plaintiff's favor. We do note, however, that we do not necessarily disagree with the Department's basic position on how to calculate the tax under the statutory formula. Its position is reasonable in light of the differing definitions of “business activity,” “business income,” and “sales” and how those terms are employed in calculating the tax base and applying the sales factor to apportion the sales to Michigan. But, for the reasons discussed below, we conclude that to apply the statutory formula, as the Department did, to the circumstances of this case would result in the imposition of a tax in violation of the Commerce Clause. Accordingly, allowing for an alternate formula, as plaintiff requested, is necessary to avoid the constitutional violation.

In recognition of the difficulty in identifying purely intrastate activity when a unitary business is involved, the United States Supreme Court has not required the use of a particular apportionment formula to the exclusion of others. Rather, under the Due Process and Commerce Clauses, the formula must simply be “fair,” Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 169, 103 S. Ct. 2933, 77 L. Ed. 2d 545 (1983); i.e., the formula must fairly determine the portion of income that can be “fairly attributed to in-state activities,” Trinova, 433 Mich. at 157, 445 N.W.2d 428 (quotation marks and citation omitted). Fairness, in part, requires that the “choice of factors used in the formula ‘must actually reflect a reasonable sense of how [the business activity] is generated.’ ” Id. at 158, 445 N.W.2d 428, quoting Container Corp. of America, 463 U.S. at 169, 103 S.Ct. 2933 (alteration in original). An apportionment formula will be struck “if the taxpayer can prove by clear and cogent evidence that the income attributed to the State is in fact out of all appropriate proportions to the business transacted ․ in that State, or has led to a grossly distorted result.” Container Corp. of America, 463 U.S. at 170, 103 S.Ct. 2933 (quotation marks and citations omitted).

The Michigan Legislature recognized the conundrum of allocating income to the state and, consistent with Supreme Court precedent, provided for alternate apportionment under MCL 208.1309 for situations in which the statutory formula resulted in a tax that was not fair. That provision governs the procedural and substantive requirements for seeking alternate apportionment and provides:

(1) If the apportionment provisions of this act do not fairly represent the extent of the taxpayer's business activity in this state, the taxpayer may petition for or the treasurer may require the following, with respect to all or a portion of the taxpayer's business activity, if reasonable:

(a) Separate accounting.

(b) The inclusion of 1 or more additional or alternative factors that will fairly represent the taxpayer's business activity in this state.

(c) The use of any other method to effectuate an equitable allocation and apportionment of the taxpayer's tax base.

(2) An alternate method may be used only if it is approved by the department.

(3) The apportionment provisions of this act shall be rebuttably presumed to fairly represent the business activity attributed to the taxpayer in this state, taken as a whole and without a separate examination of the specific elements of either tax base unless it can be demonstrated that the business activity attributed to the taxpayer in this state is out of all appropriate proportion to the actual business activity transacted in this state and leads to a grossly distorted result or would operate unconstitutionally to tax the extraterritorial activity of the taxpayer.

(4) The filing of a return or an amended return is not considered a petition for the purposes of subsection (1).

Plaintiff presented clear and cogent evidence that the statutory formula, as applied, attributed business activity to Michigan “out of all appropriate proportion to the actual business activity transacted in this state,” MCL 208.1309(3), and led to a grossly distorted result, and also operated to unconstitutionally tax extraterritorial activity. See also Hans Rees’ Sons, Inc. v. North Carolina, 283 U.S. 123, 135; 51 S. Ct. 385; 75 L. Ed. 879 (1931). Our basis for this conclusion is, unlike many other aspects of this case, fairly straightforward. The value of the business and its assets was built up over many years and attributable to activity in many states. Indeed, much of the activity and assets involved in the Sale never had any connection to Michigan. However, the Sale occurred during a period (the Short Year) in which an unusually large percentage of the business activity took place in Michigan. Then, with the application of the statutory formula, an unreasonably large portion of the Sale was attributed to Michigan and taxed under the MBT. Simply put, the apportionment formula is unconstitutional as applied to MLI under the circumstances of this case.

To rebut the presumption that the statutory apportionment formula is fair, a taxpayer must show by “clear and cogent evidence,” Trinova Corp., 433 Mich. at 158, 445 N.W.2d 428, that (1) “the business activity attributed to the taxpayer in this state is out of all appropriate proportion to the actual business activity transacted in this state and leads to a grossly distorted result,” or alternatively, (2) the apportionment formula “would operate unconstitutionally to tax the extraterritorial activity of the taxpayer,” MCL 208.1309(3).

A state may not tax more than its fair share of interstate commerce, and to be valid, a tax imposed on a business that conducts taxable activities both within and outside a state's borders must be apportioned to the activities within the state. See ASARCO, Inc. v. Idaho State Tax Comm., 458 U.S. 307, 315, 102 S. Ct. 3103, 73 L. Ed. 2d 787 (1982). However, the profitability of such modern business organizations—which take advantage of functional integration, centralization of management, and economies of scale across state borders—is tied to the business as a whole, which makes it misleading to characterize business income as having a single isolated source. Mobil Oil Corp. v. Comm'r of Taxes of Vermont, 445 U.S. 425, 438, 100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980). Exact precision in apportionment, therefore, is not required, a general approximation is permitted, and a formula that incidentally taxes some out-of-state business activity is constitutionally permissible. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 272, 98 S. Ct. 2340, 57 L. Ed. 2d 197 (1978). Yet, while the United States Supreme Court has not required use of a particular formula, it has required that such an apportionment formula be fair. Container Corp. of America, 463 U.S. at 164, 169, 103 S.Ct. 2933. An apportionment formula is valid if it does not operate to unreasonably and arbitrarily attribute to the taxing state a “percentage of income out of all appropriate proportion to the business transacted by the [taxpayer] in that State.” Hans Rees’ Sons, Inc., 283 U.S. at 135, 51 S.Ct. 385. Stated differently, a formula that has a palpably disproportionate result that patently taxes out-of-state activity will be nullified. See Int'l Harvester Co. v. Evatt, 329 U.S. 416, 422-423, 67 S. Ct. 444, 91 L. Ed. 390 (1947).

The difficulty with these general principles is their application. In discerning whether impermissible distortion has occurred, courts are swayed by numerous factors unique to each case, making it nearly impossible to discern any set of general rules as to when impermissible distortion occurs. A review of pertinent caselaw demonstrates this point, but it will also aid in determining whether distortion occurred in this case.

In Hans Rees’ Sons, the United States Supreme Court struck down a one-factor apportionment formula that was based on ownership of tangible property. Hans Rees’ Sons, 283 U.S. at 128-129, 135-136, 51 S.Ct. 385. The taxpayer was in the business of manufacturing leather for wholesale and retail, with warehouses in New York and its manufacturing plant in North Carolina. Id. at 126-127, 51 S. Ct. 385. The evidence showed that no more than 21% of the taxpayer's income could be properly attributed to the taxing state, but that between 66% and 85% of the taxpayer's total income had been attributed to the state. Id. at 128, 134-135, 51 S. Ct. 385. The Supreme Court struck down the one-factor formula's application to that taxpayer because, although fair on its face, it operated “so as to reach profits which are in no just sense attributable to transactions within its jurisdiction” and unreasonably and arbitrarily attributed profits to North Carolina that were “out of all appropriate proportion to the business transacted by the [taxpayer] in that State.” Id. at 134-136, 51 S. Ct. 385.

In Container Corp. of America, the Supreme Court upheld a three-factor apportionment formula, which used an averaged ratio of payroll, property, and sales to apportion in-state activity and rejected evidence intended to show systematic distortion. Container Corp. of America, 463 U.S. at 170, 181-182, 103 S.Ct. 2933. Mainly, the taxpayer asserted that the formula failed to consider that the taxpayer's foreign subsidiaries were significantly more profitable and consequently distorted the true allocation of income. Id. at 181, 103 S. Ct. 2933. The Court found that this argument was based on “geographical accounting,” which fails to account for contributions that result from the operation of a multistate business as a whole, and that the three-factor formula had gained wide approval because “payroll, property, and sales appear in combination to reflect a very large share of the activities by which value is generated.” Id. at 183, 103 S.Ct. 2933. Further, the taxpayer had failed to demonstrate a substantial margin of error in the three-factor apportionment formula; the difference between the formula used and that advocated by the taxpayer resulted in an increase of only 14%, which the Court noted fell far short of the 250% increase in Hans Rees’ Sons. Id. at 183-184, 103 S.Ct. 2933.

The Michigan Supreme Court, in Trinova Corp. v. Dep't of Treasury, also considered whether application of the three-factor apportionment formula of Michigan's now-repealed Single Business Tax Act (SBTA), formerly MCL 208.1 et seq., was constitutional. Trinova, 433 Mich. at 144-147, 445 N.W.2d 428. The SBTA, which was the predecessor of the MBTA, imposed a value-added tax on business activity in the state; the taxpayer's tax base was allocated to Michigan by multiplying the total tax base by the ratio of Michigan sales, Michigan wages, and Michigan property to which the tax rate then applied. Id. at 150-153, 445 N.W.2d 428. The Court rejected the contention that compensation 40 times greater than actuality and depreciation 1000 times greater than actual depreciation was evidence of an unfair apportionment “out of all appropriate proportion” to the taxpayer's actual business transactions in Michigan. Id. at 163-164, 445 N.W.2d 428. In so concluding, the Court made clear that it could not “ignore the integrated nature of formulary apportionment,” which is better suited to take account of a unitary enterprise's business activity, and consequently rejected geographical accounting, which fails to account for contributions to business activity as a result of functional integration. Id. at 162, 445 N.W.2d 428. According to the Court, the fact that the plaintiff could show that its apportioned compensation and depreciation were not accurate did not demonstrate distortion given that the taxpayer's apportioned tax base was almost $20 million, or approximately 9% of its total tax base, and that it had sales of nearly $104 million in Michigan. Id. at 164, 445 N.W.2d 428.

Well before Trinova, however, the Michigan Supreme Court struck down application of a formula that imposed a corporate franchise tax that burdened interstate commerce. Panhandle Eastern Pipe Line Co. v. Corp. & Securities Comm., 346 Mich. 50, 56, 77 N.W.2d 249 (1956). In that case, the taxpayer was a Delaware corporation engaged in the business of distributing natural gas through pipelines it owned, including pipelines in Michigan. Id. at 52, 77 N.W.2d 249. The taxpayer had 7% of its pipeline mileage in Michigan, 5% of its total property in Michigan, about 3.5% of its payroll in Michigan, and 2% of its operating expenses in Michigan, and its Michigan sales were around 6%. Id. at 56, 77 N.W.2d 249. In calculating the tax, the tax commission had included 50% of the taxpayer's interstate receipts. Id. In striking down that formula as an arbitrary and “unjust burden upon interstate commerce,” the Court simply concluded, “In our opinion it is clear that the formula used by the commission includes receipts from a business not related to plaintiff's intrastate business ․” Id.

We conclude that this is an exceptional case in which the taxpayer has met its burden of providing clear and cogent evidence that the business activity attributed to it “is out of all appropriate proportion to the actual business activity transacted in this state and [has led] to a grossly distorted result.” MCL 208.1309(3). The statutory formula as applied, which includes 100% of the gain on the Sale in MLI's preapportioned tax base, includes income from the Sale that is not related to MLI's Michigan business activities. Application of the statutory formula results in an allocation of 70% of the gain on the Sale to Michigan, meaning approximately $38 million is attributed to MLI's business activity in the state of Michigan. While some of MLI's value can undoubtedly—and should undoubtedly—be attributed to its business activity in Michigan, the undisputed history of MLI's sales in the state is that those sales averaged around 7% of its total sales. This demonstrates that most of the value inherent in MLI stemmed not from its activity in Michigan during the Short Year or even over previous years but from intangible assets built up in multiple other states over time. To impose a tax on 70% of the gain of the Sale is not commensurate with the “protection, opportunities and benefits” that Michigan conferred on MLI because the majority of the activities making up MLI's fair market value at the time of the Sale had occurred outside Michigan's borders. See Wisconsin v. J.C. Penney Co., 311 U.S. 435, 444, 61 S. Ct. 246, 85 L. Ed. 267 (1940). Again, by relying upon the Short Year and its unusual concentration of activity in Michigan, an unconstitutional distortion is created.

Application of the statutory formula in this case runs afoul of the Due Process and Commerce Clauses, incorporated in the statute, because it does not fairly determine the portion of income from the Sale that is reasonably attributed to in-state activities. Fairness, in part, requires that the choice of “factors used in the apportionment formula must actually reflect a reasonable sense of how [the business activity] is generated.” Container Corp. of America, 463 U.S. at 169, 103 S.Ct. 2933. Looking only at the Short Year does not actually and reasonably reflect how the income from the Sale was generated. As in Hans Rees’ Sons, the statutory formula when applied in this case operates “so as to reach profits which are in no just sense attributable to transactions within its jurisdiction.” Hans Rees’ Sons, 283 U.S. at 134, 51 S.Ct. 385.

Additionally, both the Court of Claims and the Department rely on Trinova to support the Department's apportionment. But Trinova involved the SBTA's three-factor apportionment formula. The Trinova Court effectively held that showing a distortion as to a single factor after the ratios are averaged did not impeach the basic premise of the three-factor formula, given that the business was to be viewed as a whole and that the averaged ratios actually reflected a reasonable sense of how the taxpayer's business activity was generated. Trinova is not helpful to the Department's position; that the Court accepted a distortion of up to 1000 times greater than actuality is immaterial to this case in which the three-factor apportionment formula is not at issue. Rather, the MBT uses a single factor: sales. And, unlike the three-factor formula in Trinova, MLI's Michigan sales alone do not reasonably reflect how the gain on the Sale was generated. Trinova is inapposite.

We should briefly address the argument that plaintiff did not follow the statute's procedural requirements by petitioning for alternate apportionment before filing its MBT return. Instead, it filed its return using an alternate apportionment method that included the Sale in the sales-factor denominator, and only after the Department's audit removing the Sale to the tax base did MLI ask for an alternate accounting. The Department, however, entertained MLI's request at the informal level and, while pointing out the procedural irregularity in the Court of Claims, the Department did not argue that the request should be denied for failure to strictly comply with the statutory directive. The Department also did not ask for such relief before this Court. Consequently, to the extent that the Department raises this argument, it should be considered to have waived the issue of procedural irregularity or to otherwise have impliedly consented to try the substantive issue of whether the tax is distortive absent compliance with the statute's procedural requirements. See Fraser Twp. v. Haney (On Remand), 331 Mich.App. 96, 98–99, 951 N.W.2d 97 (2020) (indicating that when a party fails to object to an issue that has been raised and the court subsequently addresses the issue absent objection, the issue is tried by implied consent). Moreover, as discussed above, if an alternate formula is not applied, the constitutional defect cannot be cured.

The Legislature anticipated that use of the statutory formula could result in constitutional defects in particular cases, and therefore it provided for the possibility of an alternate apportionment under MCL 208.1309. Reading this section as a whole, if a taxpayer believes the apportionment provisions unfairly represent the extent of the taxpayer's business activity in the state, the taxpayer must (1) petition to propose a “reasonable” alternative method of apportionment, which may be used only if approved by the Department; and (2) rebut the presumption that the statutory apportionment formula fairly represents the taxpayer's business activity in the state. We, however, decline plaintiff's request that we ascertain the alternate method to be employed. The statute clearly directs that this must be settled between the parties; that is, the method must ultimately be approved by the Department.

Accordingly, this matter must be returned to the Department for the determination of the appropriate alternate method to be used. We encourage the parties to engage in a good-faith collaboration to arrive at such a method. Ultimately, just as the Department may not rely on the statutory formula in this case, neither can it insist on an alternate method that does not cure the constitutional defect by continuing to attribute out-of-state revenue to Michigan. And if plaintiff believes that the method ultimately adopted by the Department is constitutionally flawed, it may renew its challenges.

The trial court's decision is reversed, and the tax assessment and penalty in this case are vacated. The matter is remanded for the parties to determine an alternate method of apportionment. We do not retain jurisdiction. No costs, neither party having prevailed in full.

Per Curiam.

Tukel, P.J., and Sawyer and Riordan, JJ., concurred.

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