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Old 07-27-05, 11:02 am
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Is Additional Tax Unconstitutional? COA #255311


I received this Court of Appeals notice today.

Although the original decision was upheld, it was due to the statute of limitations and not because the tax imposed was constitutional.

The interesting issues about this is:

Is it constitutional for our City Leaders to impose a 1% Admin fee on the Sidewalk program?

Is it constitutional for our City Leaders to continue to charge the 1% Admin fee to collect our real estate taxes?

An overview of the case:
http://courtofappeals.mijud.net/dig...ml/25531121.htm

Quote:
Summary Disposition - Review - Standard

A trial court's grant of summary disposition is reviewed de novo.


The definiation of de novo (legal term) as stated in the summary disposition is:

de novo definition – starting all over; trying a matter anew, as though it was being tried for the first time.

Constitutional Law - Headlee Amendment - Enforcement - Limitations Period - Claim - Accrual - Indirect Tax - Franchise Fee - Consumer

A tax imposed on a retailer, but assessed by the retailer against the consumer, is a direct tax on the retailer. A person may challenge the validity of an indirect tax under the Headlee Amendment to the Michigan Constitution, but must do so within one year of the imposition of the direct tax regardless of when it was collected from the plaintiff. In this case, the defendant city imposed a franchise fee on a cable television provider pursuant to an agreement with the provider dated July 10, 2001. In subsequent bills sent to customers, the provider itemized the franchise fee expense. The plaintiff, a customer of the provider, paid the bill, including the portion designated as allocated to the franchise fee, and then brought suit, asserting that the imposition of the fee constituted a new tax made without voter approval as required by the Headlee Amendment. The defendant moved for summary disposition, arguing that the claim, asserted more than one year after the fee was imposed on the cable television provider, was untimely. The plaintiff argued that the timeliness of her claim should be ascertained by reference to the date on which she received the bill. However, the bill was not the imposition of a tax; rather, the tax was imposed on the cable provider on July 10, 2001. Under the circumstances, the plaintiff's claim was untimely, and the trial court properly granted summary disposition for the defendant.


Const 1963, Art 9 Sec 31, MCL 600.308a(3)


The actual Opinion:
http://courtofappeals.mijud.net/doc..._255311.OPN.PDF

Your thoughts?

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Old 09-06-05, 4:00 pm
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Re: Is Additional Tax Unconstitutional? COA #255311


Let's discuss....


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