Talamore for Three Trust v. Cascade Township ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
TALAMORE FOR THREE TRUST, by Trustee UNPUBLISHED
MATTHEW J. CREHAN, July 14, 2016
Petitioner-Appellant,
v No. 327010
Michigan Tax Tribunal
CASCADE TOWNSHIP, LC No. 14-007826-TT
Respondent-Appellee.
Before: OWENS, P.J., and BORRELLO and O’BRIEN, JJ.
PER CURIAM.
Petitioner appeals as of right an order of the Michigan Tax Tribunal (MTT), which
affirmed respondent’s denial of a principal residence exemption (PRE) for residential property
located in Cascade Township for the tax year 2014. For the reasons set forth in this opinion, we
affirm.
I. FACTS
The Talamore for Three Trust became an owner of a condominium located at Talamore
Court in Cascade Township, Kent County, Michigan, on January 15, 2014. On July 21, 2014,
petitioner, as trustee of the trust and co-owner of the property, averred in an affidavit submitted
to respondent that the property became his principal residence on March 31, 2014. In reliance on
petitioner’s affidavit, respondent qualified the property for a PRE on July 22, 2014. Respondent
mailed a copy of petitioner’s revised tax bill to the Talamore property, but it was returned as
undeliverable. This caused respondent to question whether the property was actually occupied.
On July 23, 2014, respondent’s assessor Roger McCarty visited the property. He saw that it was
unoccupied at that time, a sign in the window stated that the plumbing was winterized, the back
windows were covered, and a neighbor told him that he had not seen anyone living at the
property for several years. Respondent sent petitioner a letter on July 30, 2014, requesting
certain documents to prove that he resided at the Talamore property. A copy of this letter was
sent to the Talamore property and returned as undeliverable. Respondent never received any of
the documents it requested from petitioner. Respondent denied petitioner a PRE on the
Talamore property on September 4, 2014, and petitioner appealed to the MTT. On February 12,
2015, the MTT found that the Talamore property was not petitioner’s principal residence in 2014
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and ordered that the Talamore property was not entitled to a PRE for the tax year 2014. This
appeal ensued.
II. ANALYSIS
Our review of decisions of the MTT is limited. Mt Pleasant v State Tax Comm, 477
Mich 50, 53; 729 NW2d 833 (2007). The MTT’s “factual findings are final if they are supported
by competent, material, and substantial evidence on the whole record. If facts are not disputed
and fraud is not alleged, our review is limited to whether the Tax Tribunal made an error of law
or adopted a wrong principle.” Mich Props, LLC v Meridian Twp, 491 Mich 518, 527-528; 817
NW2d 548 (2012). To the extent that an appeal from a decision of the MTT requires this Court
to construe a statutory provision, our review is de novo. Moshier v Whitewater Twp, 277 Mich
App 403, 407; 745 NW2d 523 (2007). “[S]tatutes exempting persons or property from taxation
must be narrowly construed in favor of the taxing authority.” Liberty Hill Housing Corp v
Livonia, 480 Mich 44, 49; 746 NW2d 282 (2008).
Pursuant to the General Property Tax Act (GPTA), MCL 211.1 et seq., real property is
“[a]ll land within” Michigan, MCL 211.2(1)(a), and all real property “shall be subject to
taxation[,]” MCL 211.1. However, the GPTA provides a “principal residence exemption, also
known as the ‘homestead exemption,’ [which] is governed by [MCL 211.7cc and MCL
211.7dd].” EldenBrady v Albion, 294 Mich App 251, 256; 816 NW2d 449 (2011). Specifically,
[a] principal residence is exempt from the tax levied by a local school district for
school operating purposes to the extent provided under section 1211 of the revised
school code [establishing the money a school district may levy for operating
purposes], if an owner of that principal residence claims an exemption as
provided in this section. [MCL 211.7cc(1) (citation omitted).]
An owner may claim a PRE
by filing an affidavit on or before May 1 for taxes levied before January 1, 2012
or, for taxes levied after December 31, 2011, on or before June 1 for the
immediately succeeding summer tax levy and all subsequent tax levies or on or
before November 1 for the immediately succeeding winter tax levy and all
subsequent tax levies with the local tax collecting unit in which the property is
located. The affidavit shall state that the property is owned and occupied as a
principal residence by that owner of the property on the date that the affidavit is
signed. [MCL 211.7cc(2).]
A principal residence is “the [one] place where an owner of the property has his or her true,
fixed, and permanent home to which, whenever absent, he or she intends to return and that shall
continue as a principal residence until another principal residence is established.” MCL
211.7dd(c).1
1
We note that there is no dispute that petitioner was an “owner” for purposes of MCL 211.7cc.
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In support of petitioner’s argument that the property was his principal residence for 2014,
petitioner submitted a February 20, 2014 rental agreement for a trailer; a February 20, 2014 bill
of lading indicating that a trailer was delivered to petitioner in Muskegon; an unaddressed April
9, 2014 receipt indicating that a battery was delivered to petitioner’s “condo”; an unaddressed
April 16, 2014 energy bill receipt; several copies of envelopes dated August 2014 and later,
addressed to petitioner at the Talamore property; two unaddressed letters from Watermark Club
Homes Association2 dated October and November 2014; two cards to petitioner welcoming him
to his new home, one dated May 5, 2014, and the other not dated; a December 21, 2014 Comcast
bill for Internet service at the Talamore property but addressed to petitioner at 6757 Cascade
Road; a January 9, 2015 bill for repairs to a boiler at the Talamore property; a water bill for the
Talamore property stating that the balance began on January 23, 2015; and a January 26, 2015
bill from a heating and cooling company addressed to petitioner at the Talamore property.
Furthermore, petitioner testified at the February 4, 2015 hearing that he began moving his
belongings into the Talamore property on February 20, 2014, and that he finished doing so on
May 31, 2014.
In contrast, respondent submitted evidence that McCarty visited the Talamore property
on July 23, 2014, and discovered that there was a sign on the window stating that the plumbing
was winterized, that the back windows were papered over, and that a neighbor of the property
stated that he had not seen anyone living at the property for several years. McCarty saw that
electricity was not being used at the property. Petitioner admitted at the February 4, 2015
hearing that on July 29, 2014, he went to the property and removed the sign stating that the
plumbing was winterized. In a July 30, 2014 email, respondent’s treasurer stated to McCarty
that neighbors of the Talamore property reported that no one had lived there for three years.
Respondent’s revised tax bill and July 30, 2014 letter to petitioner addressed to the Talamore
property were returned as undeliverable. An October 24, 2014 letter from Grand Rapids stated
that water at the Talamore property had been shut off since July 11, 2013. In response, petitioner
testified that the water was turned off because the plumbing needed repairs. He further testified
that when he slept at the Talamore property, he brought bottled water. He also testified,
however, that “he slept elsewhere for the most part[.]”
We conclude that the MTT’s finding that the Talamore property was not petitioner’s
principal residence in 2014 was “supported by competent, material, and substantial evidence on
the whole record.” Mich Props, LLC, 491 Mich at 527. Petitioner’s February 2014 documents
show only that he rented a trailer, which was delivered to Muskegon. His April 2014 receipts
were unaddressed. Although petitioner presented copies of envelopes addressed to him at the
Talamore property, he testified that August 2014 mail to the Talamore property was unopened
and that he directed the local post office not to deliver mail to the Talamore property. Indeed,
respondent’s 2014 tax bill and July 30, 2014 letter addressed to the Talamore property were
returned as undeliverable. The Watermark letters were unaddressed, as were the cards
welcoming petitioner to his new home. Although the December 21, 2014 Comcast bill indicated
that there was Internet service at the Talamore property, the bill was addressed to petitioner at
2
Watermark was a condominium association of which the Talamore property was a part.
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6757 Cascade Road. Petitioner even testified before the MTT that “he slept elsewhere for the
most part[.]” Contrary to petitioner’s argument that his absence from the Talamore property in
2014 was merely temporary, there was no evidence to support that the Talamore property was his
principal residence in 2014. MCL 211.7dd(c). See also Drew v Cass Co, 299 Mich App 495,
496-497; 830 NW2d 832 (2013).
Petitioner argues that his mere intent to use the property as his principal residence—as
shown by the fact that he moved his furniture into the property in the beginning of 2014 and that
he answered the door of the property in his bathrobe on December 31, 2014—proved that the
property was his principal residence in 2014. However, a principal residence is not merely the
place where an owner intends to reside; rather, the plain language of MCL 211.7dd(c) states that
a principal residence is “the one place where an owner of the property has his or her true, fixed,
and permanent home . . . .” MCL 211.7dd(c) (emphasis added). See Lafarge Midwest, Inc v
Detroit, 290 Mich App 240, 246; 801 NW2d 629 (2010). In other words, a principal residence is
where a person actually lives permanently, not where one merely intends to live permanently.
The “intent” portion of the definition of a principal residence refers to the “inten[t] to return[,]”
MCL 211.7dd(c), not the intent to make the property a principal residence. Therefore, intent
alone is insufficient to render a property a principal residence; rather, the owner of the property
must actually live at the property such that the property is the owner’s “true, fixed, and
permanent home . . . .” MCL 211.7dd(c). See also Lafarge Midwest, Inc, 290 Mich App at 246;
Livonia, 480 Mich at 49.
Petitioner’s unpreserved argument that the MTT should not have considered evidence of
statements of neighbors regarding the Talamore property being vacant fails as a matter of law.
In a proceeding before the MTT, “[t]he rules of evidence must be followed as far as practicable,
but the tribunal ‘may admit and give probative effect to evidence of a type commonly relied
upon by reasonably prudent men in the conduct of their affairs.’” Georgetown Place Co-op v
City of Taylor, 226 Mich App 33, 52; 572 NW2d 232 (1997), quoting MCL 205.746(1).
Although evidence of the neighbors’ statements does appear to constitute hearsay, it was
“evidence of a type commonly relied upon by reasonably prudent men in the conduct of their
affairs” because the neighbors lived close to the Talamore property and, therefore, they were
likely to have knowledge as to whether that property was occupied. Georgetown Place Co-op,
226 Mich App at 52. Petitioner has not established plain error. Richard v Schneiderman &
Sherman, PC (On Remand), 297 Mich App 271, 273; 824 NW2d 573 (2012).
Petitioner also argues that rescinding the PRE on the Talamore property violated his right
to uniform taxation under Article 9, § 3, of the Michigan Constitution. Petitioner did not raise
this argument before the MTT and it is not properly before this Court. Polkton Charter Twp v
Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Furthermore, petitioner cites no
evidence to support that respondent failed to tax him “‘by a uniform rule;’ that is, by one and the
same, unvarying standard[,]” in violation of Article 9, § 3. WPW Acquisition Co v Troy, 250
Mich App 287, 304; 646 NW2d 487 (2002) (quotation marks omitted). Petitioner has also
offered no explanation in support of his argument that the MTT abused its discretion by denying
his motion for reconsideration, and has abandoned the argument. See Houghton ex rel Johnson v
Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003). Insofar as petitioner’s argument is
based on his allegation that his constitutional right to uniform taxation was violated, as discussed
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above, he has offered no evidence to support this claim. WPW Acquisition Co, 250 Mich App at
304.
Affirmed.
/s/ Donald S. Owens
/s/ Stephen L. Borrello
/s/ Colleen A. O'Brien
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