If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.



### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

APEX LABORATORIES INTERNATIONAL INC.,

Petitioner

- Appellee, FOR PUBLICATION January 2, 2020 9:00 a.m.

v No. 338218 Tax Tribunal CITY OF DETROIT, LC No. 16

- 000724

- TT

Respondent

- Appellant.

ON REMAND

Before: S ERVITTO , P .J., and R ONAYNE K RAUSE and B OONSTRA , JJ.

B OONSTRA , J

. In our previous opinion, this Court affirmed the Michigan Tax Tribunal ’s (the Tribunal) order granting petitioner Apex Laboratories International, Inc ’s (Apex) motion for summary disposition and denying respondent City of Detroit ’s (Detroit) motion for summary disposition

. 1 Detroit applied to our Supreme Court for leave to ap peal the May 17, 2018 decision of this Court . In lieu of granting leave to appeal, the Supreme Court vacated this Court’s previous opinion and remanded the case back to this Court for “reconsideration in light of S Dakota v Wayfair, Inc

, ___ US ___; 138 S Ct 2080, 2099; 201 L Ed 2d 403 (2018), which overruled Quill Corp v North Dakota ex rel Heitkamp , 504 US 298; 112 S Ct 1904; 119 L Ed 2d 91 (1992).” Apex Laboratories Int’l, Inc v Detroit , 503 Mich 1034; 927 NW2d 243 (2019). We permitte d the parties to file supplemental brief s on remand. 2 We now reconsider the instant case as our

1 Apex Laboratories Int’l, Inc v Detroit , unpublished opinion per curiam of the Michigan Court of Appeals, issued May 17, 2018 (Docket No. 338218) . The facts of the case are provided in that opinion; for brevity’s sake we will not repeat them here.

2 See Apex Laboratories Int’l, Inc v Detroit , order of the Michigan Court of Appeals, entered June 28, 2019 (Docket No. 338218).- 2

- Supreme Court has directed , and determine that a further remand to the Tribunal is required. We therefore vacate the decision of the Tribunal and remand for f urther proceedings.

I. GENERAL LEGAL PRINCI PLES

The case before us involves the ability of a taxing entity to impose a tax on the person, property, or transaction it seeks to tax. More specifically, it concerns the ability of a taxing entity to impose an income tax on a non

- resident corporation. Challenges such as Apex’s implicate both the Due Process and Commerce Clauses of the United States Constitution. See US Const Am V; Const, art I, § 8, cl 3. To survive a due process challenge, there must be “ so me definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax .” Wayfair , ___ US at ___ ; quoting Miller Brothers Co v Maryland , 347 US 340, 344

- 345; 74 S Ct 535; 98 L Ed 744 (1954). A “closely related” parallel to this requirement for challenges under the Commerce Clause is that there must be a “substantial nexus” between the taxing entity and the person, property or transaction being taxed. Wayfair , ___ US at ___; quoting Complete Auto Transit, Inc v B rady , 430 US 274, 279; 97 S Ct 1076; 51 L Ed 2d (1977).

A tax on a foreign corporation “ that withstands a due process challenge will not necessarily withstand a Commerce Clause challenge .” Gillette Co v Dep’t of Treasury , 198 Mich App 303, 312; 597 NW2d 595 (1993), quoting Quill

, 504 US at 306. The Complete Auto test for whether a tax is permissible under the Commerce Clause provides that the tax is constitutionally permissible as long as it (1) applies to an activity with a substantial nexus with the ta xing s tate, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services the s tate provides

. Complete Auto , 430 US at 279; see also Gillette , 198 Mich App at 313

- 314.

Before its decision in Quill , the United States Supreme Court had held that a foreign corporation that lacked a physical presence in the taxing state, but only sold products by mail order, “ lacked the requisite minimum contacts with the State required by both the Due Process Cla use and the Commerce Clause .” Wayfair , ___ US at ___; citing National Bella s Hess, Inc v Dep’t of Revenue of Illinois , 386 US 753, 754

- 755; 87 S Ct 1389; 18 L Ed 2d 505 (1967)

, overruled by Wayfair , ___ US at ___; 138 S Ct 2099 . In other words, before Qu ill , the “physical presence rule” applied to both Due Process and Commerce Clause s challenges to taxes levied against a foreign corporation.

A. QUILL

In Quill , the United States Supreme Court reexamined the physical presence rule in the context of a stat e attempting to require an out

- of

- state mail

- order seller to collect and remit use tax on goods purchased for use within North Dakota. Quill , 504 US at 301. The Quill Court described the Due Process Clause and the Commerce Clause as “analytically distinc t” despite the “closely related” language of Complete Auto

, noting that the two Clauses “reflect different constitutional concerns” and that a state may

, “consistent with the Due Process Clause, have the authority to tax a particular taxpayer, imposition o f the tax may nonetheless violate the Commerce Clause.” Id

. at 305. The Quill Court therefore elected to treat the application of the physical presence rule differently under each Clause.- 3

- With regard to the Due Process Clause, the Quill Court concluded that the “definite link” and “minimum connection” between a state and a foreign corporation could be satisfied without the foreign corporation hav ing a physical presence in the state, noting that a foreign corporation may be subject to a state’s in persona m jurisdiction without the requirement of a physical presence in the state if it “purposefully avails itself of the benefits of an economic market in the forum State.” Id

. at 307, citing Burger King Corp v Rudzewicz , 471 US 462; 105 S Ct 2174; 85 L Ed 2d 528 (1985). The Quill Court therefore concluded that

[t] he requirements of due process are met irrespective of a corporation's lack of physical presence in the taxing State. Thus, to the extent that our decisions have indicated that the Due Process Claus e requires physical presence in a State for the imposition of duty to collect a use tax, we overrule those holdings as superseded by developments in the law of due process. [ Id

. at 308.]

However, with regard to challenges brought under the Commerce Claus e, the Quill Court opted to retain the physical presence requirement for a finding of a “substantial nexus

, ” rejecting North Dakota’s contention that if “ a mail

- order house that lacks a physical presence in the taxing State nonethe less satisfies the due pr ocess ‘minimum contacts’ test, then that corporation also meets the Commerce Claus e ‘substantial nexus’ test. ” Id

. at 312. The Quill Court reasoned that, in contrast to the Due Process Clause’s concern with “fairness for the individual defendant,” the Co mmerce Clause and the substantial nexus requirement were informed by “ structural concerns about the effects of state regulation on the national economy. ” Id

. at 313. The Quill Court found that the bright

- line physical presence rule of Bellas Hess further ed the goal of avoiding undue burdens on interstate commerce by creating a “discrete realms of commercial activity that is free from interstate taxation.” Id

. at 315. While the Quill Court noted that the Bellas Hess rule “appears artificial at its edges” it concluded that “[t]his artificiality is more than offset by the benefits of a clear rule ” such as clearly establishing the “boundaries of legitimate state authority” to impose taxes, encouraging “settle expectations” and “foster[ing] investment by bus inesses and individuals. Id

. at 315

- 316

. The Quill Court therefore declined to overrule the physical presence rule of Bellas Hess in the context of challenges to taxation of foreign corporations brought under the Commerce Clause. Id

. at 318.

B. WAYFAIR

In Wayfair , the United States Supreme Court considered the constitutionality of a South Dakota Act providing for the collection of sales taxes from certain remote sellers who lacked a physical presence in South Dakota. Wayfair , ___ US at ___ , 138 S Ct a t 2092

. Justice K ennedy, writing for the majority and joined by Justices Thomas, Ginsburg, Alito, and Gor su ch

, 3 reviewed

3 Although Chief Justice Roberts authored a dissenting opinion joined by Justices Breyer, Sotomayor, and Kagan, the dissent agreed that “ Bellas Hess was wrongly decided, for many of the reasons given by the Court.” Wayfair , ___ US at ___; 138 S Ct at 2101 ( R OBERTS , C.J., dissenting). The dissent ing Justices would ha ve adhered to the doctrine of stare decisis and left it to Congress to decide the “important question of current economic policy” implicated by the

case. Id

. at

___ ; 138 S Ct at 2101 ( R OBERTS , C.J., dissenting).- 4

- the development of Commerce Clause jurisprudence through Quill , found that the physical presence rule did not reflect the “economic re ality” of 21st century internet sellers

, and resulted in “significant revenue losses to the States.” Id

. at ___, 138 S Ct at 2092. The Court in Wayfair concluded that

Quill is flawed on its own terms. First, the physical presence rule is not a necessary interpretation of the requirement that a state tax must be “applied to an activity with a substantial nexus with the taxing State.” Complete Auto , 430 US, at 279, 97 S Ct 10 76. Second, Quill creates rather than resolves market distortions. And third, Quill imposes the sort of arbitrary, formalistic distinction that the Court ’ s modern Commerce Clause precedents disavow. [ Id

. at ___, 138 S Ct at 2092.]

Unlike in Quill , the Court in Wayfair did not believe that the different standards of the Due Process and Commerce Clauses compelled a different result when analyzing the physical presence rule, stating that “[t] he reasons given in Quill for rejecting the physical presen ce rule for due process purposes apply as well to the question whether physical presence is a requisite for an out

- of

- state seller's liability to remit sales taxes. Physical presence is not necessary to create a substantial nexus. ” Id

. at ___, 138 S Ct a t 2093. The Court in Wayfair noted that its Commerce Clause jurisprudence had general ly “eschewed formalism” and moved toward a “case

- by

- case analysis of purposes and effects,” while the physical presence rule of Quill treated “economically identical acto rs differently, and for arbitrary reasons.” Id

. at ___, 138 S Ct at 2093 . The Court in Wayfair reasoned that the artificial nature of the physical presence rule had only grown more apparent since Quill was decided in light of the dramatic growth of “mode rn e

commerce” that can utilize “targeted advertising,” “instant access to most consumers via any internet

- enabled device,” and “a virtual showroom . . . with greater opportunities for consumer and seller interaction than might be possible for local stores .” Id

. at ___, 138 S Ct at 2095. In the face of these economic realities, the Wayfair Court concluded that it “should not maintain a rule that ignores these substantial virtual connections to the State.” Id

. at 2095. 4

The Wayfair Court overruled Quill and Bellas Hess

. Id

. at ___, 138 S Ct at 209 9. In the absence of the physical presence rule, the Court in Wayfair stated that “ the first prong of the Complete Auto test simply asks whether the tax applies to an activity with a substantial nexus with the taxing State. ” Id

. at ___; 138 S Ct at 2099, citing Complete Auto

, 430 US , at 279

. A substantial nexus is established when a foreign seller ‘avails itself of the su bstantial privilege of carrying on business ’ in that jurisdiction.” Id

. , citing Polar Tankers, Inc v City of Valdez

, 557 U.S. 1, 11, 129 S Ct 2277, 174 L.Ed.2d 1 (2009).

4 The Court in Wayfair further concluded that stare decisis did not bar reconsideration of Quill and Bellas Hess . See Wayfair , ___ US at ___

- ___; 138 S Ct 2096

- 2099

.- 5

- II. ANALYSIS

We conclude that, under the circumstances of this case, remand is requ ired for the Tribunal to address the impact of Wayfair and the overruling of Quill and Bellas Hess , and, if necessary, to address Apex’s alternative arguments. As we noted in our previous opinion , the parties and the Tribunal “did not specifically address the application of the Due Process or Commerce Clauses to Detroit’s assessment of income tax to Apex; nonetheless, the majority of the parties’ arguments, and the Tribunal’s decision, centered on whether Apex had a “nexus” with Detroit such that the asses sment of income tax against it was constitutionally valid.” 5 The Tribunal, in reaching its decision, repeatedly stated that it based its holding on Apex’s lack of physical presence in Detroit, stating, for example: “Plainly, there must be some physical
pr esence established in order for [Apex] to be subjected to tax” and “[Detroit] must show ‘some minimum connection’ or physical presence . . .” and “[b]oth parties agree that physical presence is a key component in establishing nexus[.]” The parties and the Tribunal relied on as persuasive the definition of “physical presence” found in the Michigan Income Tax Act, MCL 206.621(2)(b); however, the Tribunal’s analysis of Apex’s physical presence was based on the applicability of the physical presence rule in Qu ill to the question before it. And the Tribunal’s ultimate conclusion that Apex lacked a “nexus” with Detroit at least suggests that the conclusion was based on Commerce Clause analysis.

We believe that the most prudent course of action is to vacate the Tribunal’s decision and
to remand for further proceedings to allow the parties to focus their arguments concerning Wayfair

, Quill , and the Due Process and Commerce Clauses, and to allow the Tribunal to make a ruling in the first instance. We are an error

- correcting Court, see W.A. Foote Mem Hosp v Mich Assigned Claims Plan , 321 Mich App 159, 181; 909 NW2d 38 (2017), vacated in part on other grounds ___ Mich ___ (2019), and our review of Tribunal decisions is constitutionally and precedentially limited in m any respects. See Briggs Tax Svc

, LLC v Detroit Public Schools , 485 Mich 69, 75; 780 NW2d 753 (2010). Therefore, while we can determine from the existing record that the Tribunal’s previous decision was based on “adoption of a wrong principle” in light of the United States Supreme Court’s repudiation of Quill

, Bella s Hess , and the physical presence rule, see Briggs Tax Svc , 485 Mich at 75, we conclude that we are not compelled by Wayfair or our Supreme Court’s order to reverse the Tribunal so as hold that Apex does owe the challenged taxes , nor do we believe that it to be appropriate for us to do so . This is especially true because the Tribunal declined to consider several alternative arguments from Apex in the event that the Tribunal were to resolve the constitutional question in Detroit’s favor. Although the parti es did discuss these arguments in their supplemental brief s , we do not believe we are the appropriate forum for these arguments to be initially decided. See Autodie, LLC v City of Grand Rapids , 305 Mich App 423, 430

- 431; 852 NW2d 650 (2014) (declining to reach issues on appeal that the Tribunal did not address below and noting that this Court had “neither the benefit of a decision by the . . . Tax Tribunal nor sufficient briefing by the parties.”).

5 See Apex , unpub op at 4.- 6

- We there fore vacate the Tribunal’s decision and remand fo r further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Mark T. Boonstra /s/ Deborah A. Servitto /s/ Amy Ronayne Krause