Distro 10 - Tax Tribunal - Petitioners Response for Motion for Partial Reconsideration - 9.10.25.pdf
Distro 10 Inc, Petitioner Vs. City Of Warren, Respondent · 25-001898-TT
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1 STATE OF MICHIGAN MICHIGAN TAX TRIBUNAL DISTRO 10, INC., Petitioner, v Docket No. 25-001898 Parcel No. 12-99-02-217-200 CITY OF WARREN, Respondent. __________________________________________________________________________/ ALAN SHAMOUN (P76992) LAURA M. HALLAHAN (P42101) JAMILA J. GARMO (P85952) SETH A. O’LOUGHLIN (P80257) Attorneys for Petitioner KELSEA M. MELCHER (P85821) 21445 Hoover Road, Suite 101 HALLAHAN & ASSOCIATES, P.C. Warren, MI 48089 Attorneys for Respondent (248)808-5222 1750 S. Telegraph Road, Suite 202 Bloomfield Hills, MI 48302 (248)731-3089 __________________________________________________________________________/ PETITIONER’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION FOR PARTIAL RECONSIDERATION NOW COMES Petitioner, DISTRO 10, INC., by and through counsel, Alan Shamoun and Jamila J. Garmo, and for its Response in Opposition to Respondent’s Motion for Partial Reconsideration, states: I. INTRODUCTION 1. Petitioner received the March Board of Review (“BOR”) notice dated March 20, 2025, which stated that Petitioner had until May 31, 2025 to file its appeal with the Michigan Tax Tribunal for the Eligible Manufacturing Personal Property (“EMPP”).1 2. Petitioner’s reliance on the notice from the March BOR led the Petitioner to believe that it had until the due date stated in the notice and satisfied this requirement by filing one day prior, on May 30, 2025.2 1 Docket Entry No. 2 at Exhibit D. 2 Id.
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2 3. On July 30, 2025, the Tribunal issued an Order Holding Petitioner in Default for an underpayment of the filing fees (which was timely cured and default was set-aside) and identified that Petitioner’s filing was not timely filed within the 35 days from the date in which the March BOR Notice was sent.3 4. The Tribunal determined that dismissal of the Petition was “not appropriate at this time…[since] the BOR decision incorrectly states or implies that the appeal of commercial property was required to be filed with the Tribunal by May 31 and does not reference the more specific EMPP appeal deadline under statute”.4 5. Respondent filed a Motion for Reconsideration that Petitioner, first, did not receive constitutionally sufficient notice of the filing deadline and, second, that the dismissal of the Petition was not appropriate at this time.5 II. LEGAL STANDARD 6. MCR 2.119(F)(3) explicitly prohibits rehearing when the motion “merely presents the same issues ruled on…either expressly or by reasonable implication.” The moving party must show both (1) a palpable error, and (2) that correction would compel a different outcome.6 7. A “palpable error” is defined as an error which is “easily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.”7 III. NO NEW ISSUES PRESENTED BY RESPONDENT 8. Respondent’s motion offers no new issues and no showing of palpable error, it fails at the threshold. On this procedural ground alone, the Tribunal should deny reconsideration without revisiting the merits. 9. Respondent’s Motion for Reconsideration misapplies the Sixarp ruling by misstating key facts and selectively reading Sixarp while ignoring its preservation of the due process exception applied here. 3 See MCL 211.9m(2)(c). 4 Docket Entry No. 8. 5 Docket Entry No. 11. 6 Luckow v. Luckow, 291 Mich App 417, 426 (2011). 7 Id.
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3 IV. NO PRESENCE OF PALPABLE ERROR 10. The Tribunal correctly found the March 20, 2025 BOR Notice failed to meet constitutional due process standards and the specific statutory requirements in MCL 211.9m and MCL 211.9n. 11. The BOR Notice had an affirmative misstatement of the deadline stating that the Petitioner “Must file its petition no later than May 31”, unlike in Sixarp, where the notice was incomplete but not affirmatively false.8 This language is categorical, directive, and inconsistent with the statutory 35day requirement. 12. The notice omitted any reference to the specific EMPP appeal deadline in MCL 211.9m(2)(c). By substituting a “May 31” date with no statutory tie in, the City stripped the notice of the context necessary for a taxpayer to calculate a 35day deadline. 13. Respondent improperly argues that Petitioner’s prior filing of Form 5278 proves “actual knowledge” of statutory deadlines. But Michigan courts have never held that a taxpayer’s prior statutory compliance waives the government’s obligation to provide accurate, case specific appeal instructions.9 V. MISCHARACTERIZATIONS AND OMISSIONS IN RESPONDENT’S MOTION 14. Respondent’s Motion treats Sixarp as eliminating all equitable relief in jurisdictional cases. In reality, Sixarp recognized that due process violations can warrant waiving statutory protest requirements. The Tribunal applied that narrow, recognized exception here.10 15. Respondent’s Motion ignores the distinction between “incomplete” and “affirmatively misleading”. In Sixarp, the Supreme Court emphasized the taxpayer had actual, timely Board meeting information from a separate assessment notice, and no official document misstated the deadline and they did not time file the notice to the Board prior to their final meeting.11 In this matter, the timely filed its appeal to the BOR and followed the BOR Notice for the applicable 8 Docket Entry No. 2 at Exhibit D. 9 See Sidun v Wayne Co. Treasurer, 481 Mich 503, 509 (2008) (“Notice must be reasonably calculated…under all the circumstances”). 10 Docket Entry No. 8. 11 Sixarp, LLC v. Twp of Byron, ____ Mich ____; ____ NW3d ___ (2025).
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4 deadline dates for appeal, although the date stated was incorrect which led to the issue before the Tribunal. 16. In Sixarp, the government’s notice was silent on the Tribunal’s statutory deadline which is an omission that, while incomplete, did not affirmatively contradict the law12. In this matter, by contrast, the Respondent’s BOR Notice did more than omit; it misinformed. It told the Petitioner, in unequivocal terms, that the appeal “must” be filed by May 31; a date that was weeks beyond the statutory 35 day limit. That is not a passive gap in information; it is an active misstatement by the Respondent. Due process does not permit the Respondent to mislead a taxpayer into forfeiting a property right and then invoke that forfeiture as a jurisdictional bar. 17. The Respondent’s assertion that the Tribunal “has no authority” to consider due process is overbroad. While the Tribunal lacks general equitable powers, it must assess constitutional adequacy of a BOR notice to determine whether jurisdictional requirements were satisfied.13 18. Petitioner filed its petition to the Tribunal within the date given, and that enforcing the statutory date despite misleading notice would penalize reliance on the Respondent’s own representation. Due process forbids this.14 VI. APPLICATION OF LAW TO FACTS 19. Under the flexible standard for tax related due process15, the analysis turns on whether the notice, “taken as a whole,” was reasonably calculated to inform. The record shows that: (1) there was a single written notice with an incorrect deadline; (2) there was no secondary correction of the filing deadline; (3) there was reasonable reliance by petitioner meeting the only stated deadline in the BOR Notice which negates any willful noncompliance. 20. These are the exceptional circumstances Parkview and Burnside deem sufficient to bypass strict jurisdictional bars. 12 Id. 13 Highland-Howell Dev Co, LLC v Marion Twp, 478 Mich 932 (2007). 14 Mullane v Central Hanover Bank, 339 US 306. 15 Lo Oil Co v Dep’t of Treasury, 267 Mich App 19 (2005).
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5 VII. CONCLUSION 21. Because the Respondent’s motion offers no new law, no new facts, and no showing of palpable error, reconsideration fails on its face. Further, because the notice here was not merely incomplete but affirmatively misleading, due process forbids using it to bar this appeal. The Tribunal should deny the motion and allow this case to proceed on the merits. 22. The Tribunal’s July 30, 2025 finding of constitutionally deficient notice is supported by statute, precedent, and the record. The narrow due process exception to MCL 205.735a(3) was correctly applied. WHEREFORE, Petitioner respectfully requests that the Tribunal: A. DENY Respondent’s Motion for Partial Reconsideration in its entirety; and B. Grant such other relief as is just and appropriate. Respectfully submitted, /s/ Alan Shamoun ALAN SHAMOUN (P76992) JAMILA J. GARMO (P85952) Attorneys for Petitioner 21445 Hoover Road, Suite 101 Warren, MI 48089 Dated: September 10, 2025 (248)808-5222
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6 PROOF OF MAILING On the date below, I sent by electronic mail a copy of the foregoing Petitioner’s Response in Opposition to Respondent’s Motion for Partial Reconsideration to: Laura M. Hallahan – lhallahan@hallahanlaw.com Seth A. O’Loughlin - soloughlin@hallahanlaw.com Kelsey M. Melcher – kmelcher@hallahanlaw.com I declare that the statement above is true to the best of my information, knowledge, and belief. /s/ Alan Shamoun Dated: September 10, 2025 Alan Shamoun (P76992)