Hertz Corp and Affiliates v. Department of Treasury

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

HERTZ CORP AND AFFILIATES, UNPUBLISHED
December 22, 2022
Petitioner-Appellant,

v No. 359109
Tax Tribunal
DEPARTMENT OF TREASURY, LC No. 19-003485-TT

Respondent-Appellee.

Before: SHAPIRO, P.J., and BORRELLO and YATES, JJ.

PER CURIAM.

In this matter involving a dispute over corporate income tax, petitioner appeals as of right
the final opinion and judgment of the Michigan Tax Tribunal (MTT) denying petitioner’s motion
for summary disposition, denying petitioner’s motions for limited discovery and costs, and
granting summary disposition in favor of respondent. For the reasons set forth in this opinion, we
affirm.

I. BACKGROUND

On June 6, 2019, respondent issued petitioner a Final Bill for Taxes Due, Final Assessment
Number VA2XD3S (Final Assessment VA2XD3S). In this bill, respondent informed petitioner
that it owed $1,174,386.99, which consisted of $458,967 tax due, $532,003.45 in penalties, and
$183,416.54 in interest. The type of tax was “Corporate Income Tax,” and the taxable period was
“12/12.” According to the bill, it was assessed based on petitioner’s underpayments, late
payments, late filings, and “deficiency due per previous communication.”

In a letter from petitioner’s attorney to the State Treasurer, dated July 30, 2019, petitioner
responded to Final Assessment VA2XD3S and requested a waiver for reasonable cause for all
assessed penalties. The letter explained in relevant part:

The Taxpayer’s carryforwards of tax overpayments from the prior years
(2008-2010) has been rescinded by the Department due to a dispute over proper
Michigan business tax treatment of nonqualifying vehicle exchanges and new
investment in vehicles under IRC Section 1031 for tax years 2008 through 2010.

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 The denial of these carryforwards have caused the underpayments and not any
compliance failure on behalf of the Taxpayer. These tax years (2008-2010 and
2011) are currently pending in informal conference for determination by the
Department. Determination in favor of the taxpayer will eliminate all tax due and
thus all penalty.

* * *

The Taxpayer’s underpayment of estimated CIT [Corporate Income Tax]
returns and late payment of CIT due for the Year in Issue were both due to
confusion about the use of loss carry forward upon transition from one business tax
to another. These facts and circumstances constitute reasonable cause for purposes
of waiving the negligence penalty pursuant to Michigan Administrative Rules
205.1012 and 205.1013 and Revenue Administrative Bulletin 2005-3.

On August 2, 2019, petitioner initiated this proceeding in the MTT. In its petition,
petitioner challenged the entire deficiency assessed by respondent in Final Assessment VA2XD3S,
including interest and penalties, and petitioned for cancellation of Final Assessment VA2XD3S.
Petitioner alleged that respondent wrongfully reduced its carryforward of tax overpayments for the
2012 CIT year1 based on its wrongful elimination of petitioner’s carryforward of tax overpayments
for the years 2008, 2009, and 2010. Petitioner alleged that respondent had wrongfully denied its
“purchases from other firms” deduction and investment tax credit in a March 21, 2018 Final Audit
Determination Letter with respect to the tax years 2008, 2009, 2010 at the conclusion of
respondent’s audit of petitioner’s Michigan Business Tax (MBT) returns for those three tax years.2

According to the petition, respondent’s decision resulted in the elimination of petitioner’s
carryforwards of tax over payments for the tax years 2008, 2009, and 2010, which in turn resulted
in the reduction of petitioner’s carryforwards of tax over payments for the tax years 2011 and 2012
and increased petitioner’s tax due for those years. Based on the allegedly wrongful eliminations
of petitioner’s carryforwards of tax over payments for the tax years 2008, 2009, and 2010,
respondent issued a notice of additional tax due in the amount of $1,162,899 that also informed
petitioner that its carryforward of tax overpayments for the 2012 tax year had been reduced.
Subsequently, respondent issued the June 6, 2019 Final Assessment VA2XD3S for the 2012 CIT
year for tax due in the amount of $458,967, interest due in the amount of $183,416.54, and penalty
due in the amount of $532,003.45.

1
The petition clearly alleged that “[t]he tax year at issue is calendar year 2012.”
2
The record indicates that the corporate entities involved in this case filed MBT returns from 2008-
2011 and CIT returns beginning in 2012. It appears that the CIT, MCL 206.601 et seq., replaced
the MBT, MCL 208.1101 et seq., for the tax year 2012. See Int’l Business Machines Corp v Dep’t
of Treasury, 496 Mich 642, 648-650; 852 NW2d 865 (2014) (opinion by VIVIANO, J.) (discussing
the history of business taxation in Michigan). However, this is not an issue to be resolved or
further discussed on appeal.

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 On August 24, 2020, the parties filed a joint, stipulated motion to permit petitioner to file
a first amended petition. Petitioner sought to amend its petition because it had “discovered that an
investment tax credit taken by a company that Petitioner acquired in 2012, DTG Operations, Inc.
(DTG), for MBT tax years 2008-2011 was disallowed by Respondent, and that disallowance
impacted Petitioner’s 2012 CIT return in that DTG’s overpayments for 2008-2011, which flow to
Petitioner’s 2012 CIT return, changed.” Petitioner sought to “protest Respondent’s disallowance
of DTG’s investment tax credit to the extent it impacts Petitioner’s tax year 2012 CIT return at
issue in this case.”

The MTT granted the motion to amend. In Count I of the first amended petition, petitioner
again alleged that respondent wrongfully reduced its carryforward of tax overpayments for the
2012 CIT year based on its wrongful elimination of petitioner’s carryforward of tax overpayments
for the years 2008, 2009, and 2010. In Count II, petitioner now alleged that it had acquired DTG
in November 2012, at which time “DTG’s tax attributes began flowing to” petitioner’s returns,
and that respondent wrongfully denied DTG’s validly claimed investment tax credit for tax years
2009-2011 and thereby negatively affected the amount of overpayment credit petitioner claimed
on its 2012 CIT return to offset the tax due. Petitioner further asserted that respondent had
wrongfully denied its request to recalculate the tax due for 2012 by adjusting the overpayment
from prior tax years reported on petitioner’s 2012 CIT return to account for DTG’s validly claimed
investment tax credit for tax years 2009-2011. Petitioner claimed that its “underpayments and late
payments for the 2012 CIT Year were due, in part, to the Department’s elimination of DTG’s
investment tax credit in tax years 2009-2011, which relatedly resulted in the Department’s
reduction of Hertz’s carryforward of tax overpayments for the 2011 MBT Year and 2012 CIT
Year[.]” Petitioner sought to have Final Assessment VA2XD3S “cancelled in its entirety.”

Petitioner subsequently moved for summary disposition under MCR 2.116(C)(10).
Petitioner argued that there was no genuine issue of material fact that respondent wrongfully
disallowed a $549,750 overpayment credit that petitioner had carried forward from a prior tax
period and claimed on its 2012 CIT return. According to petitioner, this credit was from
investment tax credit that DTG properly claimed in MBT years 2009, 2010, and 2011 but that had
been improperly denied by respondent. Petitioner maintained that because DTG’s tax attributes
“flowed into” petitioner’s 2012 CIT return as a result of DTG’s November 2012 merger into
petitioner, petitioner was entitled to claim the $549,750 credit. Petitioner argued that it could
demonstrate that DTG validly claimed the investment tax credit on its MBT returns from 2009-
2011, that respondent had no basis for disallowing these credits, that DTG had provided respondent
with the requisite information on the appropriate forms and supplemental documentation to
support its claimed investment tax credit, and that petitioner’s constitutional rights to due process
and equal protection would be violated if its credit carryforward were disallowed. Petitioner
claimed that responses were made to notices received from respondent but that certain notices
regarding the credit adjustments made by respondent were either never received, or not timely
received.

Petitioner explained how it was able to claim DTG’s 2009-20011 investment tax credit on
petitioner’s 2012 CIT as follows:

For tax year 2012, DTG and its affiliates, including Dollar Thrifty, filed a
CIT Return for tax period January 1 through November 18. Hertz Global Holdings,

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 Inc. filed a 2012 CIT Return for the calendar year (ending December 31), reporting
for its affiliates, including The Hertz Corporation and DTG, given the merger on
November 19, 2012.

* * *

DTG claimed ITC [investment tax credit] on its 2009, 2010, and 2011 MBT
returns. Treasury purportedly disallowed the ITC reported for 2009, 2010, and
2011, which negatively impacts Hertz’s 2012 CIT Return by a waterfall effect. The
ITC on the 2009 MBT Return created an overpayment. The 2009 overpayment was
reported on DTG’s 2010 MBT Return as a credit carryforward; then the 2010
overpayment, which also included the 2010 ITC, was reported on DTG’s 2011
MBT Return as a credit carryforward; then the 2011 overpayment, which also
included the 2011 ITC, was reported on DTG’s 2012 short-year 2012 Return as a
$549,750 credit carryforward. DTG’s $549,750 credit carryforward for 2012 was
reported on Hertz’s 2012 CIT Return as a credit carryforward. In other words, the
2009-2011 ITC flowed into the $549,750 overpayment reported on Hertz’s 2012
CIT Return.

In support of its motion, petitioner attached the relevant tax returns filed by DTG and
petitioner. DTG’s 2009 MBT Return reflected a $287,224 overpayment to be credited forward.
DTG’s 2010 MBT Return reflected the $287,224 overpayment credited from the prior return and
a $472,600 total current overpayment to be credited forward and used as an estimate for the next
tax year. DTG’s 2011 MBT Return reflected the $472,600 overpayment credited from the prior
return and a $556,113 total current overpayment to be credited forward and used as an estimate
for the next tax year. DTG’s 2012 CIT Return for the period January 1, 2012 to November 18,
2012, reflected the $556,113 overpayment credited from the prior MBT return and a $549,750
total current overpayment to be credited forward. Finally, petitioner’s 2012 CIT Return 3 reflected
a $549,750 overpayment credited from a prior period return.

Additionally, petitioner attached evidence of interactions with respondent regarding the
adjustments to DTG’s tax returns for the tax years 2008-2012. Petitioner submitted logs that were
kept by DTG’s tax department and documented communications with various tax authorities in
2012 and 2013. In June 2012, DTG’s Senior Director of Tax Affairs, Janet Drumright,4 responded
to a June 19, 2012 notice from respondent requesting resubmission of certain documentation for
DTG’s 2009 and 2010 MBT returns. Drumright resubmitted forms for the 2009 and 2010 returns.
On August 14, 2012, DTG received an August 9, 2012 notice from respondent indicating that there
was a change to DTG’s claimed overpayment and that DTG’s claimed investment tax credit had

3
This return was actually filed in the name of Hertz Global Holdings, Inc. In its motion for
summary disposition and appellate brief, petitioner explained that it is “a subsidiary of Hertz
Global Holdings, Inc.” and that petitioner refers to itself and Hertz Global Holdings “collectively.”
For purposes of this opinion, we accept this fact as true.
4
Since 2012, Drumright had been petitioner’s Director of Tax Affairs.

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been disallowed. Drumright responded by sending “Requested” information and a letter to
respondent on October 8, 2012. On March 5, 2013, DTG received a March 1, 2013 refund
adjustment notice that, according to DTG’s log, indicated “Incomplete forms; calc error.”
Drumright responded on April 28, 2013, by providing “corrections.” Drumright averred that the
detail she provided to respondent in these communications “support[ed] DTG’s investment tax
credit claims for tax years 2009-2011.”5

Petitioner also attached its responses to respondent’s first set of discovery requests, indicating in
relevant part as follows:

4. Please admit that the Michigan Business Tax (MBT) Annual Return
Notice of Additional Tax Due addressed to DTG for the tax year ending December
31, 2009, dated October 24, 2014 (attached at Tab 1),[6] notified DTG about
adjustments Treasury made related to that tax year, including a reduction of claimed
credits.

RESPONSE: Denied.

5. Please admit Petitioner did not challenge the MBT Annual Return of
Notice of Refund Adjustment for tax year ending December 31, 2009, dated
October 24, 2014 (attached at Tab 1), on DTG’s behalf within 90 days of its
issuance.

RESPONSE: Hertz’s records reflect that it did not receive the Notice, dated
October 24, 2014, until September 30, 2015. Since the Notice was not received
within 90 days of issuance, Hertz was not able to challenge it within 90 days of
its purported “issuance.” With that said, Hertz admits Request to Admit No.
5. The Notice attached at Tab 1 states that the Department of Treasury (“the
Department”) adjusted Hertz’s “nonrefundable cr[edit]” at line 54 from
$291,753 “as filed” to $8,262 “as corrected by Treasury,” noting “corrected to
agree with total nonrefundable credits determined on Form 4568.” Prior to
this purported Notice, dated October 24, 2014, that Hertz did not timely
receive, on June 19, 2012, and again on October 8, 2012, and again on April
28, 2013, DTG sent to the Department separate Form 4570s for each company
in the group, showing the ITC credit calculation by company to supplement
its 2009 MBT Return. DTG utilized tax software called Tax Dimensions when
preparing the original 2009 MBT Return, and the software created only one
Form 4570 and an attached statement that broke out the total amounts on the
Form 4570 by company and amount, so that is what was filed with the original
2009 MBT Return. If the Department processed the separate Form 4570s sent
by DTG to supplement its 2009 MBT Return, as it should have, the

5
Although the tax logs were attached to petitioner’s motion for summary disposition, Drumright’s
affidavit was only attached to petitioner’s subsequently filed reply brief.
6
The record does not appear to contain a copy of this notice.

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 Department should not have issued any subsequent notices adjusting the total
nonrefundable credits, such as the purported Notice, dated October 24, 2014,
that Hertz did not timely receive.

6. Please admit DTG did not challenge the MBT Annual Return of Notice
of Refund Adjustment for tax year ending December 31, 2009, dated October 24,
2014 (attached at Tab 1) within 90 days of its issuance.

RESPONSE: Hertz (and DTG) did not receive the Notice, dated October 24,
2014, until September 30, 2015. As the Notice was not received within 90 days
of issuance, Hertz was not able to challenge it within 90 days of its purported
“issuance.” With that said, Hertz admits Request to Admit No. 6. By way of
further response, Hertz incorporates its Response to No. 5 above.

7. Please admit Final Assessment No. UU56223, addressed to DTG, dated
April 28, 2017 (attached at Tab 2),[7] relates to the 2009 tax year and imposed
Michigan Business Tax liability.

RESPONSE: Admitted.

8. Please admit Petitioner did not challenge Final Assessment No.
UU56223 within 90 days of its issuance.

RESPONSE: Denied.

9. Please admit DTG did not challenge Final Assessment No. UU56223
within 90 days of its issuance.

RESPONSE: Denied.

10. Please admit that the MBT Annual Return of Notice of Refund
Adjustment addressed to DTG for tax year ending December 31, 2010, dated
October 28, 2014 (attached at Tab 3),[8] notified DTG about adjustments Treasury
made related to that tax year, including a reduction of the claimed refund.

RESPONSE: Hertz neither admits nor denies Request No. 10 as, after Hertz
made reasonable inquiry, the information known or readily obtainable by
Hertz is insufficient to enable Hertz to admit or deny it.

11. Please admit Petitioner did not challenge the MBT Annual Return of
Notice of Refund Adjustment for tax year ending December 31, 2010, dated

7
The record does not appear to contain a copy of this final assessment.
8
The record does not appear to contain a copy of this notice.

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 October 28, 2014 (attached at Tab 3) on DTG’s behalf within 90 days of its
issuance.

RESPONSE: Hertz neither admits nor denies Request No. 11 as, after Hertz
made reasonable inquiry, the information known or readily obtainable by
Hertz is insufficient to enable Hertz to admit or deny it.

12. Please admit DTG did not challenge the MBT Annual Return of Notice
of Refund Adjustment for tax year ending December 31, 2010, dated October 28,
2014 (attached at Tab 3) within 90 days of its issuance.

RESPONSE: Denied.

13. Please admit that the MBT Annual Return Notice of Refund Adjustment
addressed to DTG for the tax year ending December 31, 2011, dated October 8,
2013 (attached at Tab 4),[9] notified DTG about adjustments Treasury made related
to that tax year, including a reduction of the claimed refund.

RESPONSE: Admitted.

14. Please admit Petitioner did not challenge the MBT Annual Return
Notice of Refund Adjustment for tax year ending December 31, 2011, dated
October 8, 2013 (attached at Tab 4), on DTG’s behalf within 90 days of its issuance.

RESPONSE: Hertz neither admits nor denies Request No. 14 as, after Hertz
made reasonable inquiry, the information known or readily obtainable by
Hertz is insufficient to enable Hertz to admit or deny it.

15. Please admit DTG did not challenge the MBT Annual Return Notice of
Refund Adjustment for tax year ending December 31, 2011, dated October 8, 2013
(attached at Tab 4) within 90 days of its issuance.

RESPONSE: Hertz neither admits nor denies Request No. 15 as, after Hertz
made reasonable inquiry, the information known or readily obtainable by
Hertz is insufficient to enable Hertz to admit or deny it.

* * *

Request to Admit No. 4 is denied as Hertz did not receive the Notice, dated
October 24, 2014, until September 30, 2015. As the Notice was not received by
Hertz (and DTG), the Department of Treasury did not give Hertz (and DTG) notice
of the purported adjustments reflected in the Notice until it was received on
September 30, 2015. This is supported by Hertz’s records documenting when the
Notice was received. Janet Drumright can testify to this.

9
The record does not appear to contain a copy of this notice.

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 Requests to Admit Nos. 8 and 9 are denied as DTG, on June 19, 2012, and
again on October 8, 2012, and again on April 28, 2013, sent separate Form 4570s
for each company in the group, showing the ITC credit calculation by company, to
the Department to supplement its 2009 MBT Return. If the Department processed
the separate Form 4570s sent by DTG to supplement its 2009 MBT Return, as it
should have, the Department should not have issued any subsequent notices
adjusting the total nonrefundable credits, such as the purported Notice, dated
October 24, 2014, that Hertz did not timely receive, and the purported Final
Assessment dated April 28, 2017. DTG’s submission of separate Form 4570s
served as a protest of any adjustments and/or assessments issued for MBT tax year
2009 related to the ITC credit calculation and believed any adjustments and/or
assessments – issued both prior to and after June 19, 2012 – would be resolved and
cancelled. This is supported by DTG’s tax records, including multiple logs that
reflect the June 19, 2012, October 8, 2012, and April 28, 2013 filings being sent.
Janet Drumright can testify to this.

Request to Admit No. 10 is neither admitted nor denied as Hertz’s records
do not reflect whether the Notice was received. This is supported by Hertz’s tax
records by the absence of any evidence the Notice was received within 90 days of
the date reflected on it. Janet Drumright can testify to this.

Request to Admit No. 11 is neither admitted nor denied as Hertz’s records
do not reflect whether the Notice was protested. This is supported by Hertz’s tax
records. Janet Drumright can testify to this.

Request to Admit No. 12 is denied as DTG, on June 19, 2012, sent separate
Form 4570s for each company in the group, showing the ITC credit calculation by
company, to the Department to supplement its 2010 MBT Return. If the
Department processed the separate Form 4570s sent by DTG to supplement its 2010
MBT Return, as it should have, the Department should not have issued any
subsequent notices adjusting the total nonrefundable credits, such as the purported
Notice, dated October 28, 2014. DTG’s submission of separate Form 4570s in 2012
served as a protest of any adjustments and/or assessments issued for MBT tax year
2010 related to the ITC credit calculation and believed any adjustments and/or
assessments – issued both prior to and after June 19, 2012 – would be resolved and
cancelled. This is supported by DTG’s tax records, including logs that reflect the
June 19, 2012, filing being sent. Janet Drumright can testify to this.

Requests to Admit Nos. 14 and 15 are neither admitted nor denied as Hertz’s
records do not reflect whether the Notice was protested. This is supported by
Hertz’s tax records. Janet Drumright can testify to this.

Respondent argued in opposition that summary disposition should be granted in its favor
pursuant to MCR 2.116(I)(2). First, respondent argued that petitioner’s challenge amounted to an
impermissible collateral attack on prior unchallenged tax adjustments from closed tax years.
Respondent stated,

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 Here, there is no dispute that Treasury disallowed the investment tax credits
that DTG claimed in 2009, 2010, and 2010 [sic]. Nor does Petitioner allege that
any of those disallowances were disputed in accordance with the procedures
provided for in the Revenue Act. Therefore, MCL 205.22(4) clearly prevents
Petitioner from using this litigation as a back door to revisit those prior Treasury
decisions.

Additionally, respondent argued that even if these prior tax year decisions could be
revisited, respondent was still entitled to judgment in its favor because respondent properly
disallowed DTG’s claimed ITC in 2009, 2010, and 2011. Respondent finally argued that if the
above arguments were rejected, an evidentiary hearing was necessary to determine the correct
balance for Final Assessment VA2XD3S because this final assessment had already been modified
multiple times during the course of the litigation as a result of separate informal conference
proceedings, that were resolved in petitioner’s favor, related to respondent’s audit of petitioner’s
2008-2010 tax returns.

Respondent submitted the affidavit of Joseph D’Souza, an auditor manager employed by
respondent. D’Souza stated as follows regarding the adjustments to petitioner’s 2012 CIT Return:

3. During the 2012 tax period Petitioner was the designated member of a
unitary business group, which included several other members including Hertz
Corporation and DTG Operations Inc. (DTG).

4. On line 42 its 2012 CIT return, Petitioner claimed an “overpayment
credited from prior period return” in the amount of $549,750.

5. Treasury reduced the claimed overpayment in accordance with other
adjustments Treasury had previously made, including adjustments related to
Treasury’s 2008–2010 Michigan Business Tax (MBT) audit of Hertz Corporation,
as well as adjustments related to Treasury’s disallowance of investment tax credits
claimed by DTG during the 2009, 2010, and 2011 tax periods.

6. Treasury’s adjustments related to the 2008–2010 MBT audit of Hertz
Corporation were separately challenged by way of an informal conference assigned
docket no. 20180927, which was ultimately resolved in the taxpayer’s favor and
required Treasury to recalculate Petitioner’s 2011 MBT liability and 2012 CIT
liability in light of the outcome of that informal conference.

7. As a result of the recalculation prompted by the informal conference
proceedings to address the 2008–2010 MBT audit of Hertz Corporation, Final
Assessment No. VA2XD3S was corrected as of January 7, 2020, to reflect tax due
in the amount of $213,671.

8. Final Assessment No. VA2XD3S was further corrected as of November
20, 2020 to reflect tax due in the amount of $151,776.20; this correction was the
result of additional adjustments prompted by the resolution of informal conference
docket no. 20190703, which was initiated to address outstanding issues related to
Petitioner’s 2011 MBT tax liability, following the application of 2008–2010

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updated audit adjustments prompted by the outcome of informal conference docket
no. 20180927.

9. The remaining amount of tax due associated with Final Assessment No.
VA2XD3S, relates to Treasury’s prior year adjustments of DTG.

10. For the tax period ending December 31, 2009, Treasury made several
adjustments to DTG’s MBT return, which reduced DTG’s claimed current year
overpayment of $287,224 to $0, ultimately resulting in Petitioner incurring a tax
deficiency and related penalties and interest and the issuance of Final Assessment
No. UU56223, dated April 28, 2017, in the amount of $83,291.18. DTG fully paid
this liability on May 18, 2017.

11. For the tax period ending December 31, 2010, Treasury made several
adjustments to DTG’s MBT return, which reduced DTG’s claimed prior year
overpayment of $287,224 to $0 and reduced DTG’s claimed current year
overpayment of $472,600 to $79,372. This $393,228 reduction in DTG’s claimed
current year overpayment is attributable to its claimed prior year overpayment
reduction of $287,224 and various additional adjustments that increased its tax
liability by $106,004. These adjustments are reflected in Treasury’s MBT Annual
Return Notice of Refund Adjustment (Refund Adjustment), dated October 28,
2014.

12. For the tax period ending December 31, 2011, Treasury made several
adjustments to DTG’s MBT return, which reduced DTG’s claimed prior year
overpayment of $472,600 to $79,372 and reduced DTG’s claimed current year
overpayment of $556,113 to $82,607. This $473,506 reduction in DTG’s claimed
current year overpayment is attributable to its claimed prior year overpayment
reduction of $393,228 and various additional adjustments that increased its tax
liability by $80,278. These adjustments are reflected in Treasury’s Refund
Adjustment, dated October 29, 2014.

13. For the tax period ending November 18, 2012, Treasury made several
adjustments to DTG’s CIT return, which reduced DTG’s claimed prior year
overpayment of $556,113 to $82,607 and reduced DTG’s claimed current year
overpayment of $549,750 to $71,706. This $478,044 reduction in DTG’s claimed
current year overpayment is attributable to its claimed prior year overpayment
reduction of $473,506 and various additional adjustments that increased its tax
liability by $4,538. These adjustments are reflected in Treasury’s Refund
Adjustment, dated September 10, 2018.

14. In its 2012 CIT return, Petitioner claimed DTG’s 2012 prior year
overpayment of $549,750. Treasury adjusted this credit to $71,706 resulting in
Petitioner incurring a tax deficiency and related penalties and interest for the tax
period ending December 31, 2012. In other words, amounts assessed against
Petitioner in Final Assessment No. VA2XD3S are entirely attributable to
Treasury’s adjustments to DTG’s returns between 2009 through 2012.

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 D’Souza further averred that respondent disallowed DTG’s claimed ITC in 2009 through
2011 because DTG failed to supply the necessary level of detail on the requisite forms to show
that DTG was entitled to the claimed credit.

In its reply brief, petitioner argued that the investment tax credits claimed by DTG in 2009-
2011 that were disallowed by respondent could still be reviewed with respect to petitioner’s 2012
CIT return because the statute of limitation was still “open” for the 2012 tax year. Petitioner
maintained that the MTT could review a credit carryforward from a “closed” tax year and adjust
it with respect to the open tax year. Petitioner also argued that DTG had provided sufficient detail
to support the claimed investment tax credits for 2009-2011. Finally, in a somewhat confusing
argument, petitioner asserted that respondent’s reductions to the final assessment at issue that
occurred as this case was pending did not deprive petitioner of the right to challenge respondent’s
disallowance of the DTG credit. Petitioner concluded by stating that the primary issue involved
in its motion for summary disposition was “whether Hertz may claim the DTG credit carryforward
in 2012.”

Respondent moved to supplement its brief because respondent’s “counsel learned that
[respondent] had received supplemental documentation intended to support the credit that had been
claimed in the 2009 return.” Respondent argued, however, that this supplemental documentation
that DTG had provided in 2013 was still insufficiently detailed such that the disallowance of
DTG’s claimed investment tax credit was proper. Respondent attached to its motion the affidavit
of Marlon Carter, a Senior Departmental Analyst employed by respondent. Carter averred that
respondent had received a supplemental chart on April 29, 2013, in response to respondent’s notice
to DTG of adjustments made to DTG’s 2009 MBT return. The supplemental chart apparently
purported to describe DTG’s relevant capital investments for purposes of the claimed investment
tax credit. Carter further averred that “[b]ecause the taxpayer failed to supply the detailed
information required on the original returns or in the supplemental chart, Treasury disallowed the
claimed investment tax credit for the 2009 tax year.”

Subsequently, petitioner moved for limited discovery and costs. Petitioner argued that
respondent should be compelled to produce other supplemental documentation in its possession
that DTG had submitted to support the investment tax credits at issue. Petitioner also argued that
it was entitled to costs under MCR 1.109(E)(6) because respondent had ignored the existence of
the supplemental documents submitted by DTG to respondent despite having been put on notice
of the existence of these documents by petitioner’s pleadings in this matter.

Respondent opposed petitioner’s motions, arguing that additional discovery related to the
details surrounding respondent’s disallowance of the 2009-2011 credits was not warranted because
MCL 205.22(4) barred any reexamination of these previously unchallenged decisions. Respondent
further argued that its motion to supplement was driven by the additional evidence petitioner
provided with its reply brief and that the manner in which petitioner framed the issues in its motion
for summary disposition did not obligate respondent to have provided the supplemental chart
sooner. Accordingly, respondent maintained that it had not committed any discovery violations
entitling petitioner to an award of costs. Respondent provided another affidavit by Carter in which
Carter averred that he searched respondent’s records related to the denials of DTG’s claimed
credits for the tax years 2010-2011 and “did not locate any documentation that [he] believe[d]
would establish that the taxpayer had established entitlement to the claimed credit.” He located a

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summary chart related to the 2010 tax year that provided even less detail than the 2009
supplemental chart respondent previously submitted in this action.

The MTT granted respondent’s motion for leave to supplement. The MTT subsequently
issued a written opinion and judgment denying petitioner’s motion for summary disposition and
granting summary disposition in favor of respondent pursuant to MCR 2.116(I)(2). In its opinion,
the MTT framed the issue as follows:

In this case, there is no dispute that Final Assessment No. VA2XD3S,
involving Petitioner’s 2012 CIT Return, was timely appealed in accordance with
Section 22 and that Petitioner has properly invoked the Tribunal’s jurisdiction over
that assessment. However, the analysis regarding the Tribunal’s jurisdiction in this
case is not that simple. One component of Petitioner’s 2012 CIT Return is the
carryforward of ITCs from previous tax years. In other words, while Petitioner’s
CIT Return is for the 2012 tax year, the credit Petitioner claims on the CIT Return
was first claimed by DTG on a 2009 MBT Return and was subsequently carried
forward on DTG’s 2010 and 2011 MBT Returns. Petitioner asserts that “[a] credit
carried forward from a closed tax year may be taken in an open tax year.” The
Tribunal agrees. However, the question in this case is whether the tax returns of
the closed tax years from which the credits are carried forward may be reopened,
and the credits re-examined.

The MTT determined that DTG’s 2009, 2010, and 2011 tax assessments were final and not
reviewable because the “parties do not dispute that DTG’s 2009, 2010, and 2011 assessments were
not appealed as provided for under MCL 205.22(1).” The tribunal further concluded that
petitioner’s challenge in the instant matter constituted an impermissible collateral attack on the
underlying decisions by respondent regarding DTG’s claimed ITC in 2009, 2010, and 2011, and
that the tribunal thus would not disturb respondent’s disallowance of DTG’s ITC in 2009 through
2011. The MTT determined that it did not have jurisdiction to consider plaintiff’s constitutional
due-process and equal-protection claims, although it noted that “the Tribunal’s review is de novo
and thus Petitioner has an opportunity to be heard.” The tribunal concluded:

To summarize, because the assessments relative to DTG’s 2009, 2010, and
2011 tax years were not appealed as provided for under MCL 205.22(1), these
assessments are final and are not reviewable by the Tribunal under MCL 205.22(4).
Because this was the sole issue presented by Petitioner, the Tribunal finds that it
lacks jurisdiction in this matter. For this reason, Petitioner’s Motion for Summary
Disposition under MCR 2.116(C)(10) is denied, meaning that Petitioner’s request
that the Tribunal allow the $549,750 “overpayment credited from prior period
return” is also denied. Finally, the Tribunal finds that Respondent is entitled to
Summary Disposition as a matter of law under MCR 2.116(I)(2).

Additionally, in this same order, the MTT denied petitioner’s motions for limited discovery
and costs. This appeal followed.

II. SUMMARY DISPOSITION

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 Petitioner contends that the MTT erred in its summary disposition ruling. “Our review of
Tax Tribunal decisions, absent fraud, is limited to whether the tribunal made an error of law or
adopted a wrong principle.” Curis Big Boy, Inc v Dep’t of Treasury, 206 Mich App 139, 143; 520
NW2d 369 (1994). This Court “defer[s] to the tribunal’s interpretation of a statute that it is charged
with administering and enforcing,” Spartan Stores, Inc v Grand Rapids, 307 Mich App 565, 569;
861 NW2d 347 (2014) (quotation marks and citation omitted), but questions involving statutory
interpretation present issues of law that are reviewed de novo, id.; Fradco, Inc v Dep’t of Treasury,
495 Mich 104, 112; 845 NW2d 81 (2014).

“The tribunal’s grant or denial of a motion for summary disposition is also reviewed de
novo.” Spartan Stores, 307 Mich App at 569. “Jurisdictional questions are reviewed de novo, but
this Court must determine whether the affidavits, together with the pleadings, depositions,
admissions, and documentary evidence, demonstrate . . . [a lack of] subject matter jurisdiction.”
PIC Maintenance, Inc v Dep’t of Treasury, 293 Mich App 403, 407; 809 NW2d 669 (2011)
(quotation marks and citation omitted; ellipsis and alteration in original). Summary disposition is
proper under MCR 2.116(C)(10) if the affidavits and documentary evidence, when viewed in the
light most favorable to the nonmoving party, show that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Tyson Foods, Inc v Dep’t of
Treasury, 276 Mich App 678, 683; 741 NW2d 579 (2007). “If it appears to the court that the
opposing party, rather than the moving party, is entitled to judgment, the court may render
judgment in favor of the opposing party.” MCR 2.116(I)(2).

The MTT relied on MCL 205.22 to justify its summary disposition ruling. “A taxpayer’s
right to appeal a Department of Treasury assessment is governed by MCL 205.22 . . . .” PIC
Maintenance, 293 Mich App at 407. MCL 205.22 provides in relevant part as follows:

(1) A taxpayer aggrieved by an assessment, decision, or order of the
department may appeal the contested portion of the assessment, decision, or order
to the tax tribunal within 60 days,[10] or to the court of claims within 90 days after
the assessment, decision, or order. The uncontested portion of an assessment, order,
or decision shall be paid as a prerequisite to appeal. However, an action shall be
commenced in the court of claims within 6 months after payment of the tax or an
adverse determination of the taxpayer’s claim for refund, whichever is later, if the
payment of the tax or adverse determination of the claim for refund occurred under
the former single business tax act, 1975 PA 228, and before May 1, 1986.

* * *

10
The statute previously provided that a taxpayer could appeal to the tax tribunal within 35 days.
MCL 205.22(1), as amended by 2007 PA 194. The amended version of the statute, which is quoted
above, became effective on March 18, 2016, and did not make any other changes to the language
of the provisions quoted above. MCL 205.22, as amended by 2015 PA 79.

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 (4) The assessment, decision, or order of the department, if not appealed in
accordance with this section, is final and is not reviewable in any court by
mandamus, appeal, or other method of direct or collateral attack.

(5) An assessment is final, conclusive, and not subject to further challenge
after 90 days after the issuance of the assessment, decision, or order of the
department, and a person is not entitled to a refund of any tax, interest, or penalty
paid pursuant to an assessment unless the aggrieved person has appealed the
assessment in the manner provided by this section.

Here, in response to petitioner’s summary disposition motion, respondent submitted
evidence to the MTT indicating that respondent had reduced DTG’s claimed overpayment credits
for the tax years 2009, 2010, 2011, and 2012, and issued corresponding notices of refund
adjustment and a final assessment. There is evidence that respondent communicated these
adjustments in 2014, 2017, and 2018. Perhaps most importantly, the record evidence reflects that
respondent reduced DTG’s overpayment credit of $287,224 that DTG claimed for the 2009 tax
year to $0, which eventually led to respondent issuing an April 28, 2017 final assessment for
DTG’s resulting tax liabilities and penalties, and DTG fully paid the final assessment on May 18,
2017. As petitioner explained below, DTG’s 2009 claimed overpayment credit was the beginning
of the “waterfall” of tax overpayment credits that eventually flowed into the credit claimed by
petitioner in its 2012 CIT return that is the subject of the instant litigation.

Petitioner had initiated this proceeding in the MTT on August 2, 2019, challenging the
deficiency assessed by respondent in Final Assessment VA2XD3S. It initially appeared as though
the parties agreed below that Final Assessment VA2XD3S indicated that petitioner owed tax,
penalties, and interest as a result of adjustments respondent made to petitioner’s 2012 CIT return.
However, the basis for petitioner’s challenge to Final Assessment VA2XD3S evolved as this case
progressed.

Petitioner initially claimed that respondent had wrongfully eliminated petitioner’s
carryforward of tax overpayments for the years 2008, 2009, and 2010, following respondent’s
audit of petitioner’s MBT returns for those tax years. Interestingly, the record reflects that
petitioner was already engaged in separate informal conference proceedings with respondent to
challenge respondent’s underlying decisions about petitioner’s 2008-2011 tax returns that in turn
had affected respondent’s decision regarding petitioner’s 2012 tax return. Petitioner indicated that
if the separate challenges regarding tax years 2008-2011 were resolved in its favor, then the tax
due under Final Assessment VA2XD3S for 2012 would be eliminated. At the beginning of this
case, none of petitioner’s challenges to respondent’s decisions regarding the tax years 2008-2012
involved DTG.

However, petitioner later “discovered” that its 2012 tax return had also been impacted by
respondent’s decision to disallow an investment tax credit claimed in tax years 2008-2011 by DTG,
which petitioner had acquired in 2012. Petitioner amended its petition accordingly and, by the
time petitioner moved for summary disposition, the DTG tax credits had become the sole focus of
petitioner’s challenge.

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 That petitioner’s theory of recovery had become solely dependent on the DTG credits is
evident from petitioner’s arguments in its motion for summary disposition, which only discussed
its entitlement to claim DTG’s overpayment credits from 2009-2012 on petitioner’s 2012 CIT
return and did not discuss any other overpayment credits that had been disallowed but to which it
believed it was still entitled. More specifically, petitioner focused its summary disposition
argument on demonstrating that DTG was entitled to the overpayment credits in 2009-2012, which
in turn would mean that petitioner was entitled to the overpayment credit at issue in 2012.
Furthermore, D’Souza averred that the remaining outstanding tax due associated with Final
Assessment VA2XD3S only related to respondent’s prior year adjustments of DTG’s claimed
overpayments in 2009-2012. D’Souza further averred (1) that petitioner separately challenged
through informal conference proceedings respondent’s adjustments to petitioner’s 2012 CIT return
that stemmed from respondent’s audit of petitioner’s 2008-2010 returns and (2) that these
challenges were resolved in petitioner’s favor.

Hence, as petitioner’s challenge was framed by the time of the summary disposition
motion, the success of petitioner’s claim depended entirely on its ability to demonstrate that
respondent improperly disallowed tax overpayment credits for the tax years 2008-2012 that DTG
had claimed and that were in turn claimed by petitioner in 2012 as a result of acquiring DTG that
year. Petitioner’s sole remaining basis for challenging its 2012 assessment, which undisputedly
was itself timely, was its assertion that it was entitled to claim in 2012 the credits that had been
disallowed to DTG for the tax years 2009-2012.11

However, there is no record evidence that respondent’s prior adjustments and decisions
regarding DTG’s 2009-2012 credits were ever appealed in accordance with MCL 205.22.
Although there is evidence that DTG responded to certain notices from respondent by supplying
additional information, these responses do not constitute an “appeal” to the “tax tribunal” or “court
“of claims,” which is the statutory manner for a “taxpayer aggrieved by an assessment, decision,
or order of the department” to contest that assessment, decision, or order. MCL 205.22(1).
Moreover, DTG fully paid the April 28, 2017 final assessment issued by respondent as a result of
respondent’s decision to reduce DTG’s 2009 claimed credit to $0. Without any evidence that the
underlying decisions regarding DTG’s 2009-2012 credits were ever appealed pursuant to MCL
205.22, these decisions became final, conclusive, unreviewable in any court, and immune from
any further appeal, direct attack, or collateral attack. MCL 205.22(4) & (5).

The MTT therefore did not err by determining that there was no genuine issue of material
fact that it could not review respondent’s decisions regarding DTG’s claimed credits from prior

11
As the MTT recognized below, by the time of the summary disposition motion, the sole basis
for petitioner’s challenge was its contention that respondent wrongfully denied DTG’s claimed
ITC for the tax years 2009-2011, which in turn flowed into DTG’s 2012 CIT return and then into
petitioner’s 2012 CIT return. It appears that petitioner abandoned any other bases on which to
claim that respondent wrongfully reduced its claimed carryforward credit on its 2012 CIT return.
This assertion is further underscored by record evidence showing that petitioner’s additional
challenges to its 2012 assessment were resolved in its favor through informal conference
proceedings.

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years that had been disallowed and not properly appealed pursuant to MCL 205.22 such that they
had become final and not subject to further review or collateral attack. Curis Big Boy, 206 Mich
App at 143; Tyson Foods, 276 Mich App at 683. Because petitioner’s challenge to its 2012 CIT
return could not succeed without reversing respondent’s decisions regarding DTG’s 2009-2012
credits, and because review of those prior decisions was barred, the MTT did not err by granting
summary disposition in respondent’s favor under MCR 2.116(I)(2).

Nonetheless, petitioner argues on appeal that the MTT’s ruling was erroneous because,
essentially, there was no valid and enforceable assessment, decision, or order to appeal from under
MCL 205.22 with respect to DTG’s disallowed credits in the relevant tax years. Petitioner raises
several confusing arguments about whether notices of refund adjustments that respondent issued
can be considered “final assessments” or whether such notices actually constitute “determinations”
that do not fall within the scope of an “assessment, decision, or order of the department” that is
appealable under MCL 205.22(1). Petitioner asserts that a notice of refund adjustment is not a
“decision, or order” under MCL 205.22(1) because under MCL 205.21, respondent can only issue
a “decision and order” in the context of the informal conference process. Petitioner also questions
the enforceability of the final assessment that DTG undisputedly paid in full, based on petitioner’s
allegation that this final assessment was not timely issued. Petitioner continues to maintain that
DTG properly claimed and supported its investment tax credits in the relevant tax years, such that
respondent was incorrect to disallow the credits on the ground that DTG had provided insufficient
detail to support the credits.

Petitioner’s arguments implicate questions of statutory interpretation, the primary goal of
which “is to discern and give effect to the intent of the Legislature.” Spartan Stores, 307 Mich
App at 569 (quotation marks and citation omitted). To ascertain the Legislature’s intent, a
reviewing court focuses on the statute’s plain language and reads contested portions of a statute
“in relation to the statute as a whole.” Id. (quotation marks and citation omitted). “If the plain and
ordinary meaning of statutory language is clear, judicial construction is normally neither necessary
nor permitted.” Montgomery Ward & Co, Inc v Dep’t of Treasury, Revenue Div, 191 Mich App
674, 679; 478 NW2d 745 (1991).

“A taxpayer’s right to appeal a Department of Treasury assessment is governed by MCL
205.22 . . . .” PIC Maintenance, 293 Mich App at 407. “MCL 205.22 governs an appeal of an
assessment, decision, or order of the department . . . .” Tyson Foods, 276 Mich App at 690. “The
plain language of the statute states that taxpayers aggrieved by ‘an assessment, decision, or order’
of the Department of Treasury may appeal. MCL 205.22(1). Thus, only assessments, decisions,
or orders are appealable.” PIC Maintenance, 293 Mich App at 411-412.

However, the phrase “assessment, decision, or order” is not as narrow in scope as petitioner
contends. See Montgomery Ward, 191 Mich App at 680-681 (stating that an initial notice of intent
to levy tax is an “assessment” that “is within the purview” of MCL 205.22 and that final
assessments following an informal conference are not the only types of assessments that are
appealable under MCL 205.22). It is undisputed that respondent disallowed tax credits claimed
by DTG in tax years 2009-2012, and there is no evidence that those decisions were ever appealed
in accordance with MCL 205.22. Hence, whether those disallowances are considered assessments,
decisions, or orders, they became final and not subject to any review. MCL 205.22(4).

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 Even if any of petitioner’s arguments would have merit in the context of directly
challenging those decisions, petitioner does not cite any authority for the proposition that there is
an exception to MCL 205.22(4) based on perceived deficiencies in procedural technicalities, nor
does petitioner cite any authority for its conclusion that the disallowances were “void” by operation
of law based on the manner in which they were communicated to DTG in this case.12 “An appellant
may not merely announce his position and leave it to this Court to discover and rationalize the
basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting
authority.” Houghton v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003) (citations omitted).
“An appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.” Id. at 339-340.

Next, petitioner argues that even if respondent’s adjustments to DTG’s claimed credits in
2009-2012 are final, those adjustments may still be corrected for purposes of petitioner’s 2012 tax
return and that petitioner is entitled to claim these credits on its 2012 return under MCL 205.30(1).
Petitioner maintains that it timely challenged respondent’s decision regarding the 2012 return and
that the four-year statute of limitations in MCL 205.27a has not expired with respect to the credits
claimed in prior years because that statute does not mention “credits” and therefore only applies
to refunds and not credits. Petitioner further argues that the four-year statute of limitations in MCL
205.27a also does not apply in this case to bar reexamining DTG’s claimed credits because
adjustments to tax credits do not create a “deficiency” requiring the taxpayer to make a payment
to respondent and credits therefore do not fall within the scope of MCL 205.27a. Accordingly,
based on these foundational premises, petitioner argues that the MTT may properly apply an
overpayment credit from a closed tax year to open tax year after determining whether the credit is
valid.

MCL 205.30 provides in relevant part:

(1) The department shall credit or refund an overpayment of taxes; taxes,
penalties, and interest erroneously assessed and collected; and taxes, penalties, and
interest that are found unjustly assessed, excessive in amount, or wrongfully
collected with interest at the rate calculated under section 23 for deficiencies in tax
payments.

(2) A taxpayer who paid a tax that the taxpayer claims is not due may
petition the department for refund of the amount paid within the time period
specified as the statute of limitations in section 27a. If a tax return reflects an
overpayment or credits in excess of the tax, the declaration of that fact on the return
constitutes a claim for refund. If the department agrees the claim is valid, the
amount of overpayment, penalties, and interest shall be first applied to any known
liability as provided in section 30a, and the excess, if any, shall be refunded to the
taxpayer or credited, at the taxpayer’s request, against any current or subsequent
tax liability. Except claims for refunds, other than those made under part 1 of the

12
Whatever procedural deficiencies petitioner believes occurred with respect to the disallowance
of DTG’s tax credits, such arguments could have and should have been raised through a timely
and proper appeal of those decisions pursuant to MCL 205.22.

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income tax act of 1967, 1967 PA 281, MCL 206.1 to 206.532, that have not been
approved, denied, or adjusted within 1 year of the date received may be treated as
denied at the election of the taxpayer, and may be appealed by the taxpayer in
accordance with section 22.

(3) The department shall certify a refund to the state disbursing authority
who shall pay the amount out of the proceeds of the tax in accordance with the
accounting laws of the state. Interest at the rate calculated under section 23 for
deficiencies in tax payments regarding those refunds shall be added to the refund
commencing 45 days after the claim is filed or 45 days after the date established by
law for the filing of the return, whichever is later. Interest on refunds intercepted
and applied as provided in section 30a shall cease as of the date of interception.
Refunds for amounts of less than $1.00 shall not be paid.

MCL 205.27a provides in relevant part:

(2) A deficiency, interest, or penalty shall not be assessed after the
expiration of 4 years after the date set for the filing of the required return or after
the date the return was filed, whichever is later. The taxpayer shall not claim a
refund of any amount paid to the department after the expiration of 4 years after the
date set for the filing of the original return. A person who has failed to file a return
is liable for all taxes due for the entire period for which the person would be subject
to the taxes. If a person subject to tax fraudulently conceals any liability for the tax
or a part of the tax, or fails to notify the department of any alteration in or
modification of federal tax liability, the department, within 2 years after discovery
of the fraud or the failure to notify, shall assess the tax with penalties and interest
as provided by this act, computed from the date on which the tax liability originally
accrued. The tax, penalties, and interest are due and payable after notice and
hearing as provided by this act.

(3) The statute of limitations shall be extended for the following if the period
exceeds that described in subsection (2):

(a) The period pending a final determination of tax through audit,
conference, hearing, and litigation of liability for federal income tax and for 1 year
after that period.

(b) The period for which the taxpayer and the state treasurer have consented
to in writing that the period be extended.

(c) The period described in section 21(6) and (7) or pending the completion
of an appeal of a final assessment.

(d) A period of 90 days after a decision and order from an informal
conference, or a court order that finally resolves an appeal of a decision of the
department in a case in which a final assessment was not issued prior to appeal.

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 (4) The statute of limitations is extended only as to those items that were
the subject of the audit, conference, hearing, or litigation for federal income tax or
a tax administered by the department. As used in this subsection, “items that were
the subject of the audit” means items that share a common characteristic that were
examined by an auditor even if there was no adjustment to the tax as a result of the
examination. Items that share a common characteristic include items that are
reported on the same line on a tax return or items that are grouped by ledger,
account, or record or by class or type of asset, liability, income, or expense.

Even if petitioner were correct that MCL 205.27a somehow does not apply to tax credits,
MCL 205.22(4) still provides that if an aggrieved taxpayer does not appeal the relevant
“assessment, decision, or order of the department . . . in accordance with this section,” then the
assessment, decision, or order becomes “final and is not reviewable in any court by mandamus,
appeal, or other method of direct or collateral attack.” This Court has specifically held that MCL
205.30 and MCL 205.27a do not serve to allow collateral attacks that are otherwise prohibited
under MCL 205.22 based on the taxpayer’s failure to appeal in accordance with § 22 because § 22,
as the more specific rule, controls in a situation where a taxpayer fails to properly challenge a
decision as required under § 22. As this Court explained:

While these provisions [in MCL 205.30 and MCL 205.27a] set forth a
general time frame and the process by which a taxpayer may obtain a refund, they
do not purport to address the question of whether a refund is available when an
assessment has become final and conclusive because a taxpayer failed to challenge
the assessment in the time period set forth in MCL 205.22. That specific question
is unequivocally addressed in MCL 205.22(5) . . . Accordingly, MCL 205.22(5),
being the more specific rule, controls whether a refund is available to a taxpayer
who fails to challenge an assessment as required under MCL 205.22, and the
general four-year time period for requesting a refund as set forth in MCL 205.30
and MCL 205.27a(2) does not allow collateral attacks of final assessments. . . .
Indeed, to read the refund mechanisms in MCL 205.30 and MCL 205.27a as an
end-run around the requirements for appealing an assessment under MCL 205.22
would be to impermissibly render MCL 205.22 nugatory or, in other words, as the
Tax Tribunal aptly recognized, to construe these provisions “as a second avenue to
challenge an assessment is to ignore the prohibition against collateral attack” set
forth in MCL 205.22. [Thumb Motorsports, LLC v Dep’t of Treasury, unpublished
per curiam opinion of the Court of Appeals, issued November 17, 2016 (Docket
No. 329121), pp 5-6.]13

Essentially, petitioner’s arguments about the application of MCL 205.27a rely on a
mischaracterization of the nature of this case. Reexamination of respondent’s decisions regarding

13
We find this analysis persuasive. Although unpublished opinions are not precedentially binding,
an unpublished opinion may serve as “a guide because of the limited caselaw on the subject
matter.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 20 n 16; 672 NW2d 351
(2003).

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the disallowance of the tax credits claimed by DTG in the relevant tax years was prohibited by
operation of MCL 205.22, not the application of the statute of limitations in MCL 205.27a. Hence,
petitioner’s arguments about the statute of limitations in MCL 205.27a are not persuasive as they
fail to demonstrate that the MTT committed any error in this case. Thumb Motorsports, unpub op
at 5-6.

Petitioner next argues that the MTT erred by concluding that it did not have jurisdiction to
hear petitioner’s constitutional claim. Petitioner argues that it merely stated its argument
challenging respondent’s decision in “constitutional terms” by asserting that respondent’s refusal
to allow supplemental documentation to support DTG’s credits that were disallowed violated its
right to equal protection. See, e.g., Forest Hills Co-operative v Ann Arbor, 305 Mich App 572,
618-620; 854 NW2d 172 (2014) (stating that the MTT does not have jurisdiction to invalidate
statutes or consider constitutional matters but that “[m]erely couching a challenge to an assessment
in constitutional terms does not deprive the Tax Tribunal of its exclusive jurisdiction to consider a
claim that the assessment is arbitrary or without foundation”). As petitioner concedes, it does not
argue that any statute is unconstitutional. As such petitioner’s argument is best understood as
another attempt to revisit the propriety of respondent’s decisions to disallow DTG’s credits from
tax years 2009-2012. As fully explained above, those decisions are final and not subject to any
further review or collateral attack. MCL 205.22(4). Accordingly, petitioner’s argument does not
demonstrate an entitlement to any relief, and the MTT’s ruling in this respect is affirmed.14

We therefore affirm the MTT’s ruling granting summary disposition in favor of respondent.

III. ADDITIONAL ISSUES

Petitioner next argues that the MTT erred by denying petitioner’s motion for limited
discovery. Petitioner maintains that it was entitled to further discovery regarding documents in
respondent’s possession that DTG had provided to support its credit claims for the tax years 2009-
2012.

Discovery rulings by the MTT are reviewed for an abuse of discretion. Henderson v Dep’t
of Treasury, 307 Mich App 1, 8; 858 NW2d 733 (2014). “A trial court abuses its discretion when
it chooses an outcome falling outside the range of reasonable and principled outcomes, or when it
makes an error of law.” Thomas M Cooley Law Sch v Doe 1, 300 Mich App 245, 263; 833 NW2d
331 (2013) (citations omitted).

“It is well settled that Michigan follows an open, broad discovery policy that permits liberal
discovery of any matter, not privileged, that is relevant to the subject matter involved in the

14
To the extent the basis for the MTT’s ruling on petitioner’s arguments involving the constitution
could be understood as erroneous, this Court has often stated: “[a] trial court’s ruling may be
upheld on appeal where the right result issued, albeit for the wrong reason.” Gleason v Mich Dep’t
of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003).

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pending case.” Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616; 576 NW2d
709 (1998).

The tax tribunal rules provide that the Michigan court rules govern if an applicable tax
tribunal rule does not exist. TTR 792.10215. Under TTR 792.10243, “A party to a contested case
may serve upon another party a request to produce or permit the inspection and copying or
photographing, by or on behalf of the requesting party, of any designated documents, papers,
books, records, accounts, letters, photographs, objects, or tangible things, which are not privileged,
which come within the scope of discovery permitted by rule 2.302(B) of the Michigan court rules,
and which are in the party’s possession, custody, or control.” Pursuant to the general scope of
discovery rule in MCR 2.302(B)(1), “[p]arties may obtain discovery regarding any non-privileged
matter that is relevant to any party’s claims or defenses and proportional to the needs of the case,
taking into account all pertinent factors, including whether the burden or expense of the proposed
discovery outweighs its likely benefit, the complexity of the case, the importance of the issues at
stake in the action, the amount in controversy, and the parties’ resources and access to relevant
information.”

Here, petitioner argues that it was entitled to discovery of material pertaining to the denial
of the tax credits claimed by DTG in 2009-2012. As explained above, respondent’s decisions to
disallow those tax credits are final and not subject to further review. Accordingly, the material
petitioner sought in its motion for limited discovery was not relevant to any claims at issue in the
case and would not have provided any benefit to resolving the case. Id.; Reed Dairy Farm, 227
Mich App at 616. Thus, the tribunal did not abuse its discretion by denying petitioner’s motion.

Petitioner additionally argues that respondent’s motion to supplement, which included the
supplemental document provided by DTG, constituted an admission that respondent’s previous
filings that did not acknowledge the existence of such documents and violated MCR 1.109(E)(5)
such that respondent should be sanctioned. This Court has stated:

Although this Court’s review of a Tax Tribunal’s findings of fact and
application of law is generally quite limited, those limitations apply only to
decisions relating to valuation or allocation of taxes, which is not at issue for an
order of sanctions. This Court reviews de novo whether the Tax Tribunal properly
interpreted and applied the court rules, and this Court reviews for clear error the
Tax Tribunal’s findings underlying its application of the court rules. A finding is
clearly erroneous when, on review of the whole record, this Court is left with the
definite and firm conviction that the Tax Tribunal made a mistake. [New Covert
Generating Co, LLC v Twp of Covert, 334 Mich App 24, 89-90; 964 NW2d 378
(2020) (citations omitted).]

Under MCR 1.109(E)(5), “The signature of a person filing a document, whether or not
represented by an attorney, constitutes a certification by the signer that: (a) he or she has read the
document; (b) to the best of his or her knowledge, information, and belief formed after reasonable
inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith
argument for the extension, modification, or reversal of existing law; and (c) the document is not
interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” MCR 1.109(E)(6) provides that “[i]f a document is signed in

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violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon
the person who signed it, a represented party, or both, an appropriate sanction, which may include
an order to pay to the other party or parties the amount of the reasonable expenses incurred because
of the filing of the document, including reasonable attorney fees. The court may not assess punitive
damages.”

Here, considering the irrelevance of matters related to the denial of DTG’s 2009-2012
credits and that respondent argued in the MTT that respondent’s decisions related to DTG’s 2009-
2012 credits were not subject to any further review or collateral attack, it is difficult to understand
how respondent’s previous filings were not well grounded in fact and warranted by existing law.
MCR 1.109(E)(5). The MTT did not err by declining to award costs to petitioner. New Covert
Generating Co, 334 Mich App at 89-90.

Finally, to the extent petitioner appears raise a new issue in its reply brief about the amount
of petitioner’s outstanding tax liability, this issue is not properly before this Court and need not be
addressed because it was not included in petitioner’s statement of the questions presented. Busch
v Holmes, 256 Mich App 4, 12; 662 NW2d 64 (2003).

Affirmed.

/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
/s/ Christopher P. Yates

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