WORLD BOOK, INC., Plaintiff-Appellee,
v.
DEPARTMENT OF TREASURY and State of Michigan, Defendants-Appellants.
Docket No. 184804.
Court of Appeals of Michigan.
Submitted September 16, 1996, at Lansing. Decided March 7, 1997, at 9:15 a.m. Released for Publication May 22, 1997.Howard & Howard Attorneys, P.C. by Patrick R. Van Tiflin, Michele L. Halloran and Kim D. Crooks, Lansing, for plaintiff-appellee.
*83 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Ross H. Bishop, Assistant Attorney General, for defendants-appellants.
Before MacKENZIE, P.J., and JANSEN and T.R. THOMAS[*], JJ.
PER CURIAM.
Defendants appeal as of right from an order granting summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10). We reverse.
Plaintiff is a Delaware corporation with its principal office in Illinois. It markets encyclopedias and other educational materials to customers in Michigan through the use of door-to-door salespersons. After the orders and security deposits are taken, the orders are sent to Illinois to be approved by plaintiff. Once approved, the merchandise is withdrawn from inventory located in Illinois and shipped to the Michigan customer by common carrier.
The Department of Treasury ruled that plaintiff's transactions involving Michigan customers are taxable under Michigan's use tax act, M.C.L. § 205.91 et seq.; M.S.A. § 7.555(1) et seq. Plaintiff contended, and the court of claims agreed, that its sales to Michigan customers come within Michigan's General Sales Tax Act, M.C.L. § 205.51 et seq.; M.S.A. § 7.521 et seq. The significance of the distinction is that the sales tax act includes a provision allowing bad debts to be deducted from the gross proceeds used to calculate sales tax liability, M.C.L. § 204.54i; M.S.A. § 7.525(9). The use tax act does not contain such a provision.
The sales tax is a tax imposed upon sellers for the privilege of engaging in the business of making sales of tangible personal property at retail within this state. Terco, Inc. v. Dep't of Treasury, 127 Mich.App. 220, 225-226, 339 N.W.2d 17 (1983). The seller is obligated to pay the tax due and bears the direct legal incidence of the general sales tax act. Combustion Engineering, Inc. v. Dep't of Treasury, 216 Mich.App. 465, 467, 549 N.W.2d 364 (1996). Although the tax is ordinarily passed on to the purchaser at retail, the seller is not obligated to do so. Id. The use tax, on the other hand, is an excise tax imposed for the "privilege of using, storing, or consuming tangible personal property in this state." M.C.L. § 205.93(1); M.S.A. § 7.555(3)(1). The legal incidence of the use tax falls upon the consumer or purchaser. Terco, supra, at p. 226, 339 N.W.2d 17. Although the use tax is levied on the consumer, the seller is responsible for collection of the tax. Sharper Image Corp. v. Dep't of Treasury, 216 Mich.App. 698, 700 fn. 1, 550 N.W.2d 596 (1996); M.C.L. § 205.95(a); M.S.A. § 7.555(5)(a), and M.C.L. § 205.97; M.S.A. § 7.555(7).
The sales tax and use tax provisions are complementary and supplementary. Elias Brothers Restaurants, Inc. v. Treasury Dep't, 452 Mich. 144, 153, 549 N.W.2d 837 (1996). Thus, generally, property on which a consumer has paid the use tax is not subject to the imposition of the sales tax on the seller. Id., n. 19. Similarly, the use tax provisions except property acquired in a transaction on which a sales tax has been paid in this state or another state. Id.
Where interstate transactions are involved, only the state in which the retail sale is consummated can charge a sales tax on the transaction. Gainey Transportation Service, Inc. v. Dep't of Treasury, 209 Mich.App. 504, 509, 531 N.W.2d 774 (1995). Defendants contend that plaintiff's sale of encyclopedias to Michigan residents takes place in Illinois, so that the transaction is not subject to the Michigan sales tax. They argue that, instead, the buyers' use of the materials in Michigan subjects the purchasers to taxation under the use tax act. We agree.
The court of claims held that, to determine whether an interstate retail sale is subject to the Michigan sales tax, the test is whether there is "sufficient local activity, irrespective of where a sale is consummated." However, the question of "sufficient local activity" is relevant to the issue whether Michigan has a substantial enough connection with a transaction or activity for it constitutionally to impose any taxa point not in dispute in *84 this case. See, e.g., Gainey, supra (discussing the sales tax) and Kellogg Co. v. Dep't of Treasury, 204 Mich.App. 489, 516 N.W.2d 108 (1994) (discussing the use tax). See also Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960). Asking whether there is "sufficient local activity" does not answer the question whether the sales tax should be imposed, as opposed to the use tax.
Because the sales tax is a tax imposed upon sellers for the privilege of selling personal property at retail within this state, Terco, supra, the appropriate test for determining whether a retail sale took place in this state for purposes of the General Tax Act is whether the sale was consummated within this state. This is consistent with the act's definition of a taxable "sale at retail": "a transaction by which the ownership of tangible personal property is transferred for consideration." M.C.L. § 205.51(1)(b); M.S.A. § 7.521(1)(b). It is also consistent with Montgomery Ward & Co., Inc. v. Fry, 277 Mich. 260, 269 N.W. 166 (1936), J.B. Simpson, Inc. v. O'Hara, 277 Mich. 55, 268 N.W. 809 (1936), Ashton Power Wrecker Equipment Co. v. Dep't of Revenue, 332 Mich. 432, 52 N.W.2d 174 (1952), and McLeod v. J.E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304 (1944).[1]
In this case, plaintiff solicits orders from customers by independent contractors in Michigan. The application, however, is approved outside the State of Michigan. In J.B. Simpson, supra, at p. 59, 268 N.W. 809, the Court stated:
The orders are taken in Michigan and forwarded to Illinois for acceptance. If accepted they are filled with the understanding that title passes to the purchaser immediately upon delivery of the goods to the carrier. The sale is not completed until the order is accepted and if not accepted there is no sale.
Both by the language of the statute and the terms of the order, the parties contemplate that the title to the clothing passes in the State of Illinois when delivery is made to the carrier in Chicago. Such a sale is not made in Michigan but in Illinois and being interstate commerce cannot be taxed by the State of Michigan.
There is nothing in the record specifically stating when title passes when World Book sells its materials to Michigan residents. However, generally, where there is no explicit agreement, title passes when the seller completes delivery, which in this case would be in Illinois where plaintiff delivers its encyclopedias to the common carrier. M.C.L. § 440.2401(2); M.S.A. § 19.2401(2). Thus, sales are consummated outside the State of Michigan and Michigan may not impose a sales tax on the transaction. Gainey, supra. Instead, the use tax is applicable to the buyer's purchase and use of the product in Michigan.
In its opinion, the court of claims suggested that it agreed with plaintiff that if, as we have concluded, the use tax applied to Michigan purchasers of plaintiff's materials, then the absence of a bad debt provision in the use tax act to mirror the bad debt provision in the sales tax act would result in a violation of the Commerce Clause. Although the court of claims did not squarely address the proposition, we note our disagreement with it. See Don McCullagh, Inc. v. Dep't of Revenue, 354 Mich. 413, 93 N.W.2d 252 (1958). It must also be borne in mind that the use tax is a tax on a purchaser's use and enjoyment of personal property. Terco, supra. It is based on the retail price paid by the buyer. Sharper Image, supra. A seller's bad debts simply have no relevance to the purchaser, and the price of an object has no bad debt component. Therefore, the remedy plaintiff would have us impose to cure *85 the asserted violationengraft a bad debt provision on the use taxis not plausible.
Reversed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Furthermore, in our view, it is not inconsistent with Scripto, supra, or Beitzel v. Dep't of Revenue, 2 Mich.App. 311, 139 N.W.2d 780 (1966), since those cases concerned the separate question whether the taxing state had a substantial enough connection with the transaction to constitutionally impose a tax. As previously noted, it is undisputed in this case that Michigan has sufficient connections with the transactions at issue here to impose a tax. The question here is whether Michigan should impose a sales tax versus a use tax, not whether it can impose any tax at all.