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: SERVITTO, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

BOONSTRA, 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 appeal 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 permitted the 

parties to file supplemental briefs 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 1 Apex Laboratories Int’l, Inc v Detroit, unpublished opinion per curiam of the Michigan Court 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).
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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 further proceedings.

I. GENERAL LEGAL PRINCIPLES

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 “some 

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 Brady, 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 taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, 

and (4) is fairly related to the services the state 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 

Clause and the Commerce Clause.” Wayfair, ___ US at ___; citing National Bellas 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 Quill, the “physical 

presence rule” applied to both Due Process and Commerce Clauses 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 state 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 distinct” 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 of 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.
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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 having a physical presence in the state, noting that a foreign corporation 

may be subject to a state’s in personam 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 Clause 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 Clause, 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 nonetheless satisfies the due process ‘minimum contacts’ test, then that corporation also 

meets the Commerce Clause ‘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 

Commerce 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 furthered 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 

businesses 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 at 2092. Justice Kennedy, 

writing for the majority and joined by Justices Thomas, Ginsburg, Alito, and Gorsuch,

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 (ROBERTS, C.J.,

dissenting). The dissenting Justices would have 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 (ROBERTS, C.J., dissenting).
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the development of Commerce Clause jurisprudence through Quill, found that the physical 

presence rule did not reflect the “economic reality” 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 1076. 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 presence 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 at 2093. The Court in Wayfair noted that its

Commerce Clause jurisprudence had generally “eschewed formalism” and moved toward a 

“case-by-case analysis of purposes and effects,” while the physical presence rule of Quill treated 

“economically identical actors 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 “modern ecommerce” 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 2099. 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 substantial 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.
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II. ANALYSIS

We conclude that, under the circumstances of this case, remand is required 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 assessment 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 

presence 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 Quill 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 many 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, Bellas 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 parties did discuss these arguments in their supplemental briefs, 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 therefore vacate the Tribunal’s decision and remand for further proceedings 

consistent with this opinion. We do not retain jurisdiction.

/s/ Mark T. Boonstra

/s/ Deborah A. Servitto

/s/ Amy Ronayne Krause