(dissenting). I believe that this cause should be remanded to the circuit court for a determination of whether the Commissioner of Revenue properly exercised the discretion given him under § 335 to disallow the amended combined returns. In all other respects I agree with the majority opinion. The majority decline to remand on grounds that at the trial court the department admitted the Donovan Construction Group was a unitary business and was entitled and required to file its tax returns on a combined basis.
I believe the majority read too much into the Attorney General’s admission on the motion for summary judgment that plaintiffs were a unitary business required to file their tax returns on a three-factor unitary basis. I read that admission as conceding that prima facie plaintiffs are a unified business and, as such, should submit their returns on a combined basis. But I don’t read the admission as going so far as to eliminate or negate the *29commissioner’s broad discretion under § 335 to refuse to accept the returns if good cause should exist to reject the returns. I don’t believe the commissioner ever intended to abdicate that statutory responsibility. Yet that is precisely what the majority must assume in order to hold that the Court is foreclosed from remanding the issue back to the trial court for a hearing on the merits.
Further, the question of whether the commissioner properly exercised his § 335 discretion turns on whether the Donovan Construction Group was in fact "a unified business enterprise”. Whether it was such, or not, is a question of fact. Where questions of fact exist, summary judgment is generally inappropriate. Croton v Gillis, 104 Mich App 104; 304 NW2d 820 (1981). Summary judgment is inappropriate unless it appears that it is impossible for the claim to be supported by evidence at trial. Ceplin v Bastian-Blessing Division of Golconda Corp, 90 Mich App 527; 282 NW2d 380 (1979). Therefore, I believe that the trial court erred, though understandably so, in granting summary judgment.
The Ingham Circuit Court issued its opinion on October 14, 1981, and judgment was entered November 12, 1981. On February 1, 1982, the opinion in Clarke-Gravely Corp v Dep’t of Treasury, 412 Mich 484; 315 NW2d 517 (1982), was issued. The ASARCO, Inc v Idaho State Tax Comm, — US —; 102 S Ct 3103; 73 L Ed 2d 787 (1982), and FW Woolworth Co v Taxation & Revenue Dep’t of New Mexico, 458 US 354; 102 S Ct 3128; 73 L Ed 2d 819 (1982), opinions were released June 29, 1982. It was not until those opinions were released that the department had reason to believe that, if there was not a certainty at least a strong possibility existed, the Donovan Group was not a unitary *30business, which under the broad discretionary power given the commissioner by Clarke-Gravely might be precluded from filing a combined return. At oral argument on appeal, the assistant attorney general representing the department frankly stated that, had he known at the trial court level as much as he now knows by reason of ASARCOWoolworth, he never would have stipulated that plaintiffs were a unitary business or were entitled to file a combined return.
While I am not convinced that ASARCO and Woolworth change the law as drastically as the Attorney General contends, I am persuaded that a genuine issue of fact exists as to whether plaintiffs are a unitary enterprise whose combined tax returns must be accepted by the commissioner. This case is too important to the state and to the multistate operated business potentially affected thereby to make a decision without remanding to the trial court for an evidentiary hearing.
Under these circumstances, fundamental fairness and current case law authorize a remand. The fact that an appellate court only examines points that have been properly preserved at trial does not limit the court’s power to prevent fundamental injustice. Morris v Radley, 306 Mich 689, 699; 11 NW2d 291 (1943). Where a motion to dismiss has been granted on authority of the applicable law as it then existed and after appeal is taken and briefs filed on appeal a subsequent decision is announced changing the former prevailing law "fairness suggests remand, rather than reversal, in order that the trial judge may reconsider”. Grist v Upjohn Co, 362 Mich 470, 472; 107 NW2d 763 (1961). Likewise, in Pierce v Riley, 16 Mich App 419; 168 NW2d 309 (1969), where a contrary decision was announced by the Supreme *31Court after the trial court found in favor of defendants, this Court said:
"In view of the importance of the issue presented by this case to the state as a whole, and the peculiar timing of this case in relation to both Thompson cases [Thompson v Enz, 2 Mich App 404; 140 NW2d 563 (1966), rev’d 379 Mich 667; 154 NW2d 473 (1967)], we remand the case to the trial court for reconsideration in light of Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967); with both parties being given the right to present additional evidence as to reasonableness factors not pleaded or presented at the prior hearing.” 16 Mich App 422.
Similarly, in Clarke-Gravely, supra, after the Supreme Court decided that the commissioner had broad discretionary powers to permit or require combined reporting, to decide whether certain criteria have been met, and to request additional information before making such determination, the Supreme Court remanded the case to the Commissioner of Revenue for the exercise of such discretion. The broad powers conferred upon this Court by GCR 1963, 820.1(7) authorize this Court to issue any order which ought to have been given or made.