DAVIS
v.
DEPARTMENT OF TREASURY
Docket No. 62236.
Michigan Court of Appeals.
Decided February 1, 1983.Paul S. Davis, in propria persona.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Curtis G. Beck, Assistants Attorney General, for respondent.
Before: D.E. HOLBROOK, JR., P.J., and J.H. GILLIS and M.E. DODGE,[*] JJ.
PER CURIAM.
Petitioner appeals as of right from a January 11, 1982, judgment of the Michigan Tax Tribunal affirming the denial of petitioner's claim for an intangibles tax refund.
Petitioner timely paid his intangibles taxes for the years 1976, 1977, and 1978. In November, 1979, the Michigan Department of Treasury issued a notice of intent to assess an additional intangibles tax of $118.40 for the years 1976 and 1978. Petitioner paid the tax under protest and requested a hearing. A hearing was held before a Department of Treasury hearing officer who, by decision and order dated November 21, 1980, denied petitioner's claim for an intangibles tax refund.
Petitioner then petitioned the Tax Tribunal for review of the department's denial of his refund *225 claim, alleging that the intangibles tax act, MCL 205.131 et seq.; MSA 7.556(1) et seq., was unconstitutional in several respects or, in the alternative, that the November, 1979, assessment was improper.
On December 10, 1981, the Tax Tribunal's hearing officer issued a proposed judgment recommending affirmance of the department's denial of the refund claim. Petitioner filed exceptions and, on January 11, 1982, the tribunal adopted the findings of fact and conclusions of law of the proposed judgment. Petitioner appeals as of right.
Petitioner first argues that the intangibles tax act taken in conjunction with the Income Tax Act of 1967, MCL 206.1 et seq.; MSA 7.557(101) et seq., results in a graduated income tax in violation of Const 1963, art 9, § 7. The argument lacks merit. The intangibles tax is a specific tax on the privilege of ownership of intangible personal property. The fact that income is used as a partial basis for measuring the intangibles tax does not make it an income tax. Shivel v Kent County Treasurer, 295 Mich. 10, 19; 294 N.W. 78 (1940). See also Shapero v Dep't of Revenue, 322 Mich. 124; 33 NW2d 729 (1948). Since the intangibles tax does not constitute an income tax, there is no violation of Const 1963, art 9, § 7.
With regard to petitioner's second argument, we adopt the following analysis of the Tax Tribunal hearing officer:
"Petitioner next argues that since the new constitution removed intangible property from the general property tax, removed the reference to `specific' taxes, and the reference to a nongraduated income tax, it `is clear that the intent of the new constitution was to replace the intangible property tax with an income tax'. * * *
*226 "Petitioner is correct that the reference in § 4 of the 1908 Constitution has not been reinserted in the new constitution (`The legislature may by law impose specific taxes, which shall be uniform upon the classes upon which they operate') and that the new constitution provides for `the uniform general ad valorem taxation of real and tangible personal property not exempt by law'. Thus, the new constitution specifically speaks only of tangible property.
"But, as the Convention comments point out: `This is a revision of Sections 3, 4, 7 and 8, Article X, of the present [1908] Constitution. The first sentence preserves the uniformity clause of Sec 3, Article X, except as it presently applies to intangible personal property for which ad valorem taxation has proved unworkable.' Thus, the drafters of the 1963 Constitution, in realization of the fact that the Intangibles tax act had been passed in 1939 removed the phrase `except on property paying specific taxes' and provided for the uniformity provision to apply to the ad valorem property taxation of tangible real and personal property. Thus, the problems with excepting specific taxes was solved.
"As the Convention comment goes on to state, `The last sentence of the section replaces Sec 4, of present Article X. The uninformative designation of "specific" taxes has been dropped.'
"What art 9, § 3 of the 1963 Constitution accomplished was to provide for uniform general ad valorem taxation, not to exceed 50% of true cash value and to provide that `every tax other than the general ad valorem property tax shall be uniform upon the class or classes upon which it operates'. Thus, any other tax, such as the intangibles tax, the single business tax, etc., must be uniform upon the class or classes upon which it operates. The amendment to the prior constitutional provisions did not imply that the intangible property tax was to be replaced with an income tax but rather that the intangibles tax did not fit into the ad valorem property tax category. Thus, the intangibles tax act has not been replaced, but coexists with the Michigan income tax." (Emphasis in original.)
Petitioner's contention that the Income Tax Act *227 and the intangibles tax act result in double taxation and violate § 3(b)(13) of the intangibles tax act is rejected. The intangibles tax is a specific tax against the ownership of intangible property whereas the income tax is an assessment upon the income of a person and not upon any particular property from which that income is derived. Thus, the double taxation issue need not be addressed. See Shivel, supra, p 19; Stockler v Dep't of Treasury, 75 Mich. App. 640, 652; 255 NW2d 718 (1977), lv den 402 Mich. 802 (1977).
Petitioner next asserts that MCL 205.133(b)(12); MSA 7.556(3)(b)(12), which provides an exemption from the intangibles tax for property used in a business activity if the income from such property is considered in computing the single business tax, violates the uniformity requirement and the equal protection clause, rendering the intangibles tax act invalid.
The exemption provides:
"(b) The following shall be exempt from the tax imposed by this act:
* * *
"(12) Intangible personal property owned by or comprising the assets of a person or business enterprise engaged in business activity as defined by section 3 of Act No. 228 of the Public Acts of 1975, as amended, being section 208.3 of the Michigan Compiled Laws, if, were income received from such intangible personal property, it would be considered even if deducted or excluded, in determining the amount, even if zero or negative, of business income as defined by section 3 of that act."
Petitioner contends that the exemption discriminates against the owners of intangible property who are not engaged in business activities and *228 violates Const 1963, art 9, § 3, which requires that a tax be uniform as to the class upon which it operates. We do not agree. Section 3(b)(12) does not exempt a person from intangibles tax liability simply because he engages in a business activity. Rather, the provision states that the intangibles tax does not apply to certain intangible personal property if income from such property is used in computation of business income for purposes of the single business tax.
Statutes are presumed to be constitutional. Stockler, supra, p 644. The Supreme Court has held that, in the face of an equal protection challenge, tax statutes may discriminate among classifications of properties, businesses, trades, callings, or occupations so long as the discrimination is not arbitrary but is based upon a reasonable distinction, or if any state of facts can reasonably be conceived to sustain it. Covert Twp Assessor v State Tax Comm, 407 Mich. 561, 597; 287 NW2d 895 (1980). In the present case, no equal protection violation exists since the statute reasonably exempts property from taxation under the intangibles tax where the income from that property is includable in computation of the single business tax.
Moreover, we find no violation of the constitutional requirement that a tax be uniform as to the class or classes upon which it operates. The Legislature's creation of tax exemptions does not violate that constitutional requirement.
Finally, petitioner argues that the November, 1979, intangibles tax assessment constitutes taxation based on receipts of return of capital rather than income, and was therefore improper. We do not agree.
The distributions in dispute are cash dividends received by petitioner on securities of four utility *229 companies. The dividends exposed petitioner to no federal income tax liability. Petitioner argues that the dividends received constitute a return of capital which is not income for federal income tax purposes and therefore the distribution should not be considered income for computing the intangibles tax.
However, the intangibles tax act does not rely on the federal income tax code's definition of income. Rather, the act provides its own definition of income which states, in part:
"`Income' includes: (1) interest received upon intangible personal property; (2) dividends and other distributions, whether in the form of cash or property, to the extent that they represent the yield of intangible personal property * * * (3) all other earnings or yield of intangible personal property regardless of the name by which designated. For the purpose of computing tax imposed under this act, the gross income, including taxes, charges and other deductions which may be made therefrom, shall be the basis upon which the tax shall be measured." MCL 205.131(d); MSA 7.556(1)(d).
The remainder of the above-quoted section provides an exception which is not applicable to the present facts.
The definition of income provided in 1979 AC, R 205.219(1) contains similar language providing that a dividend paid in cash is income except to the extent that it represents a return of capital in liquidation. In the present case, it is apparent that the distributions received by petitioner did not represent a return of capital in liquidation.
We conclude that the definition of income found in the intangibles tax act and the administrative rules clearly includes dividends of the type involved in the instant case.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.