Appeal Is Timely Filed Using A Designated Delivery Service
In Grimm v. Department of Treasury, Michigan Court of Appeals, No. 293457, December 16, 2010, the Michigan Court of Appeals held that an appeal filed by a corporate officer for a final assessment of personal income withholding taxes was timely filed when the appeal was delivered to a designated delivery service within 35 days, as required by statute. The applicable statute allows taxpayers to invoke the Tax Tribunal's jurisdiction by filing a written petition within 35 days after a final determination. A petition is timely filed if it is given to a designated delivery service for delivery on or before the expiration of that time period and the petition is delivered by the designated delivery service. Reasoning that the petition does not need to be delivered by the deadline date, the court determined that the petition was timely even though the Tax Tribunal did not receive it until 36 days after the final determination.
The lower court also ordered dismissal because the taxpayer did not identify the assessment numbers being appealed within 21 days. When considering the sanction of dismissal, the trial court should have carefully considered the factors involved and all available options to decide what sanction was just and proper in the context of the case. The court reasoned that the Department of Treasury was not prejudiced and it could determine the assessment numbers corresponding to the tax periods. Furthermore, the taxpayer did not have a history of refusing to abide by court orders or deliberately delaying proceedings. Accordingly, the sanction of dismissal was an abuse of discretion.