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### STATE OF MICHIGAN

COURT OF APPEALS

CONSUMERS ENERGY COMPANY, f/k/a CONSUMERS POWER CO,

Plaintiff-Appellant, UNPUBLISHED October 16, 2014

v No. 316038 Court of Claims DEPARTMENT OF TREASURY, STATE OF MICHIGAN, LC No. 10-69-MT

Defendant-Appellee.

CONSUMERS ENERGY COMPANY, f/k/a CONSUMERS POWER CO,

Plaintiff-Appellee,

v No. 316131 Court of Claims DEPARTMENT OF TREASURY, LC No. 10-69-MT

Defendant-Appellant.

Before: S AAD , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

. In these consolidated cases, both plaintiff a nd defendant appeal the ruling of the Court of Claims on whether plaintiff’s electrical distribution equipmen t and natural-gas distribution equipment are subject to the industrial-pro cessing exemption to the use tax under MCL 205.94 o

. For the reasons stated below, we affirm in part and reverse in part, and remand for proceedings consistent with this opinion. We note at the outset that the recent decision of our Court in-2- Detroit Edison Co v Dep’t of Treasury 1 provides the basis and rationale for the major part of this opinion.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Consumers Energy (“Consumers”) is a utility company that provides natural gas and electricity to business and resi dential customers. To facilitate the safe distribution and use of these commodities, Consumers owns and operate s transmission lines, substations, compressor stations, and transformers (“di stribution equipment”) throughout th e state. This distribution equipment transmits electricity and natural gas fro m generation plants to the customer’s home or business. It also modifies the electricity and na tural gas generated at the plants to make them usable and safe for business and residential customers.

As part of its natural-ga s operations, Consumers provides an appliance-service plan (“ASP”) for its natural-gas customers. Under the ASP, a customer pays a flat fee in their annual or monthly gas bill as a form of insurance in the event that their natural-gas-using appliances break down and require repairs. Consumers, or a third-party contractor, will then make the repairs. The third-party contract ors are responsible for purchasing th e tools, materials, parts, and supplies they need for their repair jobs. Consumers then reimburses the third- party contractor for its work and expenses (including sales and use taxes paid on the necessary repair equipment by the contractors).

Defendant Department of Treasury (“Treasury ”) conducted an audit of Consumers for the period from October 1, 1997 to Dece mber 31, 2004. It determined that Consumers’ electrical and natural gas distribution equipment, and the A SP repair-related items, were subject to the Use Tax per MCL 205.91, et seq . After an informal conference with Consumers in June 2006, in which Treasury offered a detailed explanation of its determinations, Treasury levied tax on the distribution-related equipment 2 of $21,219,510. Consumers paid this amount, plus $13,403,971 in interest, under protest on July 30, 2010, and br ought these actions in the Court of Claims.

At trial, Consumers moved for summary disposition under MCR 2.116(C)(10). It presented exhaustive expert evidence that, as orig inally generated, electricity and natural gas are neither safe nor usable, and that both are modified considerably by its distribution equipment as they are transported to customers’ homes and busin esses. Because the distribution infrastructure converts electricity and natural gas from a form that is unsafe and unusable to one that is both safe and usable, Consumers argued that the equi pment is subject to the industrial-processing exemption to the Use Tax under MCL 205.94 o . It also asserted that it did not purchase, store, or use any of the equipment used by the third-party contractors as part of the ASP program, and that the contractors had paid sales tax on the eq uipment when they pu rchased it—precluding application of the use tax under MCL 205.94(1).

1 303 Mich App 612; 844 NW2d 198 (2014), lv gtd ___ Mich ___ (Docket No. 148753).

2 To be clear, this case involves a Use Tax le vied on Consumers’ electrical and natural-gas distribution equipment— not the electricity or natural gas itself.-3- Treasury responded by stating that Consumers’ electrical distribution equipment does not qualify for the industrial-processing exempti on because Consumers’ equipment was actually transporting “electrical ener gy”—not “electricity.” Though Tr easury agreed that “tangible personal property” involved in the distribution of “electricity” was not subject to the Use Tax as part of the industrial-processing exemption under MCL 205.94 o , it argued that “tangible personal property” involved in the dist ribution of “electrical energy” had been subject to the tax for many years, pursuant to an administ rative rule, Michigan Administra tive Code Rule 205.115, and that this rule did not contradict MCL 205.94 o . Furthermore, Treasury argued, the Legislature’s separation of electricity regulati on into distinct stages (genera tion, transmission, and distribution) in 141 PA 2000 and 390 PA 2000 mandated that equipment used in the transmission and distribution of electricity—i.e., equipment outside of the generation plants—was subject to the Use Tax.

On the issue of Consumers’ natural-gas distribution equipment, Treasury questioned whether the equipment actually modified the natural gas at all, as opposed to simply transporting it in an unmodified state from the power plant to the customers’ home or business. Treasury further claimed that Consumers owed use tax on the repair-related items purchased by third-party contractors under the ASP plans, because Consumers “purchased” the repair-related items by reimbursing the third-party cont ractor for their cost.

The Court of Claims held that: (1) Consum ers’ electrical distribut ion equipment was not eligible for the industrial-processing exemption because of Michigan Administrative Code Rules 205.90 and 205.115; and (2) Consumers’ natural-gas di stribution equipment was eligible for the industrial-processing exemption because it modified and changed the nature of the natural gas, and made it safe for customer use. The court al so ruled that Consumers could not be liable for Use Tax levied on repair-related items purchased by third-party contractor s under the ASP plans. Accordingly, it granted: (1) Treasury’s motion for summary disposition per MCR 2.116(I)(2) as to the electricity-related issues; and (2) Cons umers’ motion for summar y disposition per MCR 2.116(C)(10) as to the natural-gas related issues. Both sides appealed the ruling to our Court, 3 and make the same arguments on appeal.

II. STANDARD OF REVIEW

A. MOTIONS FOR SUMMARY DISPOSITION

“This Court reviews de novo a ruling by the Court of Claims on a motion for summary disposition in a case involving [the Use Tax Act]. Issues relating to the construction of the [Use Tax Act] are likewise review ed de novo on appeal.” Detroit Edison Co v Dep’t of Treasury , 303 Mich App 612, 619; 844 NW2d 198 (2014) (interna l citations omitted), lv gtd ___ Mich ___ (Docket No. 148753).

3 Our Court consolidated the app eals for administrative reasons. Consumers Energy v Dep’t of Treasury , unpublished order of the Court of A ppeals, May 30, 2013 (Docket Nos. 316038; 316131).-4- “In reviewing a motion under MCR 2.116(C)(10), we review the evidence submitted by the parties in a light most favorable to the nonmoving party to determ ine whether there is a genuine issue of material fact.” Gray v Chrostowski , 298 Mich App 769, 774; 828 NW2d 435 (2012). “A genuine issue of mate rial fact exists when the reco rd leaves open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief , 274 Mich App 307, 317; 732 NW2d 164 (2006). “Where the proffered evidence fa ils to establish a ge nuine issue regarding any material fact, the moving party is entit led to judgment as a matter of law.” Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999).

B. STATUTORY INTERPRETATION

A court’s “goal in interpreting a statute is to give effect to the Le gislature’s intent.” Malpass v Dep’t of Treasury , 494 Mich 237, 248–249; 833 NW 2d 272 (2013) (citations omitted). “When ascertaining the Legislature’s in tent, a reviewing court should focus first on the plain language of the statute in question, and wh en the language of the statute is unambiguous, it must be enforced as written.” Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543, 560, 837 NW2d 244 (2013) (citation omitted). Though they are entitled to “respectful consideration” 4 and should not be overruled without “cogent reasons,” 5 agency interpretations of a statute “are not binding on courts and cannot conf lict with the plain meaning of the statute.” In re Complaint of Rovas Against SBC Mich , 482 Mich 90, 117–118; 754 NW2d 259 (2008).

“Tax exemptions under the [Use Tax Act] an d in general are disfavored, and the burden of proving an entitlement to an exemption is on the party claiming the right to the exemption.” Detroit Edison Co , 303 Mich App at 620. Furthermore, exemptions are “strictly construed against the taxpayer.” Guardian Industries Corp v Dep’t of Treasury , 243 Mich App 244, 249; 621 NW2d 450 (2000). This is because taxes are inte nded to apply to all re levant taxpayers, and tax exemptions confer a special status th at is the “antithesis of tax equality.” Id . Tax exemptions are not inferred from statutory language. Menard Inc v Dep’t of Treasury , 302 Mich App 467, 474; 838 NW2d 736 (2013).

III. ANALYSIS

A. ELECTRICAL DISTRIBUTION EQUIPMENT

The Use Tax levies a tax on “every person” 6 in Michigan for “the privilege of using, storing, or consuming tangible person al property in this state at a ra te equal to 6% of the price of

4 In re Complaint of Rovas Against SBC Mich , 482 Mich 90, 103–104; 754 NW2d 259 (2008).

5 Id

. 6 Under the Act, “ ‘[p]erson’ m eans an individual, firm, partners hip, joint venture, association, social club, fraternal organizati on, municipal or privat e corporation whether or not organized for profit, company, limited liability company, estate, tr ust, receiver, trustee, syndicate, the United States, this state, county, or an y other group or combination acti ng as a unit, and the plural as-5- property or services specified in [MCL 205.93a or 205.93b].” MCL 205.93(1). Under the statute, “tangible pers onal property” means:

personal property that can be seen, weighed, measured, felt , or touched or that is in any other manner perceptible to the sens es and includes electricity, water, gas, steam, and prewritten comput er software. [MCL 205.92(k).] 7

There are a number of exemptions to th e Use Tax, and, among other things, it does not apply to “property so ld after March 30, 1999” 8 that “an industrial processor” 9 uses or consumes “in industrial pro cessing.” MCL 205.94 o (1)(a). “Industrial proc essing” is defined as:

well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.” MCL 205.92(a).

7 Our Court’s observations on the legi slative background of MCL 205.92(k) in Detroit Edison apply in the same ma nner to these cases: . . . pursuant to 2004 PA 172 [which adde d new language to the definition of “tangible personal property”] , the Legislature separate ly provided that “in the same manner as tangible personal property is taxed under [the UTA],” a use tax is imposed on, “[t]he transmission and di stribution of electr icity, whether the electricity is purchased from the delivering utility or from anot her provider, if the sale is made to the consumer or user of the electricity for consumption or use rather than for resale.” MCL 205.93a(1)(e). . . . Furthe r, it is clear that the Legislature was focused on the taxation of electricity and its transmission and distribution, not the “industria l processing” exemption. [ Detroit Edison , 303 Mich App at 625 n 5 (emphasis added).]

8 There are two versions of the industrial-processing exemption that apply to the time period relevant to this suit. From October 1, 1997 to March 30, 1999, the older version of the industrial-processing exemption, MCL 205.94(g)( i ), was in force. From March 30, 1999 onward, the industrial-processing exem ption is contained in MCL 205.94 o . Though the parties essentially agreed at the informal conference in 2006 to apply MCL 205.94 o to the entire time period at issue, it is the Court, not the part ies, that determines what law applies when.
Here, however, the distinction between the two statut es is of little import, and our analysis of the industrial-processing exemption is the same un der either version of the law. MCL 205.94(g)( i ) defined “industrial processor” in a similar way to MCL 205.94 o (7)(a):
As used in this subdivision, “indus trial processor” means a person who transforms, alters, or modifies tangible personal property by changing the form, composition, or character of the property fo r ultimate sale at retail or sale to another industrial processor to be furthe r processed for ultimate sale at retail. [MCL 205.94(g)( i ); see also Elias Bros Restaurants, Inc v Dep’t of Treasury , 452 Mich 144, 149; 549 NW2d 837 (1999).]

Again, the electrical and natural-gas distributio n equipment on which the Use Tax was levied was used by Consumers to “transform[], alter[], or modify[] tangible personal property”—i.e.,-6- the activity of converting or conditioni ng tangible personal property by changing the form, composition, quality, combinati on, or character of the property for ultimate sale at retail or for use in the manufacturing of a product to be ultimately sold at retail or affixed to and made a structural part of real estate located in another state. Industrial processing begins when tangible personal property begins movement from raw materials st orage to begin industrial processing and ends when finished goods first come to re st in finished goods inventory storage. [MCL 205.94 o (7)(a).]

The definition of “industrial processing” th us makes the meaning of “tangible personal property” doubly important for purposes of inte rpreting the industrial-processing exemption under MCL 205.94 o

. 10 First, the Use Tax is only levied on “tangible personal property.” MCL 205.93(1). Second, the industrial- processing exemption can onl y be granted to “tangible personal property” that is engaged in the “conve rting or conditioning” of “tangible personal property.” MCL 205.94 o (7)(a).

As noted, the term “tangible personal prope rty” includes “electri city.” MCL 205.92(k). Therefore, if an “industrial processo r” uses its distribution equipment 11 to change “the form, composition, quality, combination, or character” of electricity before it reaches the consumer, the distribution equipment is involve d in industrial processing, and t hus exempt from the Use Tax under MCL 205.94 o

. Detroit Edison , 303 Mich App at 627.

Here, it is undisputed that Consumers is an “i ndustrial processor.” It is also undisputed that its electrical distribu tion equipment is “tangible personal prope rty,” in that it “can be seen . . . felt, or touched.” MCL 205.92(k). Consumer s presented exhaustive evidence at trial 12

— evidence that Treasury did not effectively cont est—that its electrical distribution equipment changes “the form, compositi on, quality, combination, or ch aracter” of electricity before it

electricity and natural gas. Accordingly, and fo r the reasons stated in the body of our opinion, Consumers’ electrical and natural-gas distributi on equipment is also exempt from the Use Tax under the older version of the industr ial-processing exemption, MCL 205.94(g)( i ).

9 MCL 205.94 o (7)(b) defines “industrial processor” as: a “person who performs the activity of converting or conditioning tangible personal propert y for ultimate sale at retail or use in the manufacturing of a product to be ultimately sold at retail or affixed to and made a structural part of real estate located in another state.”

10 See Detroit Edison , 303 Mich App at 625 n 4.

11 If the industrial processor’s distribution e quipment was not “tangibl e personal property,” it would not be liable for the Use Tax exemption under MCL 205.94 o . However, it is hard to imagine distribution equipment that woul d not be “tangible personal property.”

12 See also Detroit Edison , 303 Mich App at 615–619 for further information on how electrical distribution equipment modifies and makes electricity safe for home and business use.-7- reaches its customers for use. Consumers’ electrical distribution equipment 13 is thus entitled to exemption from the Use Tax under the indus trial-processing exemption in MCL 205.94 o

. Detroit Edison , 303 Mich App at 627.

Treasury’s arguments to the contrary—na mely, that: (1) 141 PA 2000 and 390 PA 2000 mandate that equipment used in the transmission and distribution of electri city is subject to the Use Tax; and (2) tangible persona l property used in the distribut ion of “electrical energy,” as opposed to tangible personal property used in the distribution of “el ectricity,” is subject to the Use Tax under Michigan Administrative Code Rules 205.90 and 205.115—wer e flatly rejected by our Court in Detroit Edison . This is because Treasury conf lated the taxation of electricity with the taxation of electrical distribution equipment, 14 and its proffered interpretation of MCL 205.94 o contravened the plain meaning of the Use Ta x Act. As our Court stated: “[t]he terms ‘form, composition, quality, combin ation, or character,’ MCL 205.94 o (7)(a), are sufficiently broad and expansive to encompass voltage and curre nt changes in electricity as it travels through the transmission and distribution system.” Detroit Edison , 303 Mich App at 628. Furthermore, as in Detroit Edison :
[W]e have a situation in which machinery and equipment are conc urrently used in a unified system for pur poses of both distribution and industrial processing. In such a situation, the caselaw is clear th at the “industrial processing” exemption applies to the machinery and equipment in full. [ Id . at 630 (emphasis in original).]

Likewise, the administrative rule that Treas ury claimed gave it license to levy the Use Tax on Consumers’ electrical distribution eq uipment, R 205.115, “conflicts with the [Use Tax Act] and the industrial-proce ssing exemption,” a fact that makes the rule “invalid and unenforceable.” Detroit Edison , 303 Mich App at 632.

Consumers is therefore entitled to the indus trial-processing exemption to the Use Tax for its electrical distribut ion equipment under MCL 205.94 o

.
B. NATURAL-GAS DI STRIBUTION EQUIPMENT

The above analysis applies with equal fo rce to Consumers’ na tural-gas distribution equipment. In addition to “electricity,” the definition of “tangible personal property” also includes “gas.” MCL 205.92(k). Accordingly, under MCL 205.94 o , “tangible personal property” used by an industrial pr ocessor in the industr ial processing of natu ral gas is exempt from the Use Tax.

13 To repeat: this case involves a Use Tax le vied on Consumers’ electrical and natural gas distribution infrastructure— not the electricity or natural gas itself. See also Detroit Edison , 303 Mich App at 623 n 3.

14 See n 6, supra.-8- Once again, it is undisputed that Consumers is an “industrial processo r.” It is also undisputed that its natural-gas di stribution equipment is “tangible personal property,” in that it “can be seen . . . felt, or touched.” MCL 205.92( k). Consumers presented extensive evidence at trial that its natural-gas distribution equi pment changes “the form, composition, quality, combination, or character” of natural gas before it reaches its customers fo r use. Treasury failed to provide comparable evidence that Cons umers’ natural-gas distribution equipment did not change “the form, composition, quality, combinati on, or character” of natural gas before it reaches customers for use. Instead, it merely a sserted that the equipment does not modify the character of the natural gas being transported. 15 Consumers’ natural-ga s distribution equipment is thus entitled to exemption from the Use Tax under the industrial-processing exemption in MCL 205.94 o

. As the Court of Claims observed, Treasury’ s arguments to the contrary are unavailing. The case on which Treasury relies involved tax levied on equipmen t that “obviously did not . . . change . . . the character of the product handled by plaintiff,” which sought to exempt this equipment from the Use Tax. Bay Bottled Gas Co v Mich Dep’t of Revenue , 344 Mich 326, 329; 74 NW2d 37 (1955). The exact opposite is true here—as noted, Consumers’ natural-gas distribution equipment obviously did “change the character” of the natural gas Consumers sold to its customers, by making the gas safe and usable for them. The Court of Claims thus correctly held that Consumers’ natural-gas distribution eq uipment is entitled to exemption from the Use Tax under MCL 205.94 o

.
C. THE ASP PROGRAM

The Court of Claims was similarly correct in its holding on the ASP program. Treasury has offered no convincing explanation of why Consumers should be made to pay Use Tax on repair-related items that are purchased (presu mably with sales tax in cluded) by third-party contractors. Because Consumers di d not “us[e], stor[e], or consum [e]” the repair-related items, it cannot be liable for Use Tax on those items. MCL 205.93(1). Moreover, if the third-party contractors paid sales tax on the repair-related items—and we have no reas on to doubt that they did, nor did Treasury provide a ny evidence to the contrary —the Use Tax Act bars any assessment of the Use Tax on those items becau se sales tax has alre ady been paid. MCL 205.94(1). The Court of Claims therefore correctly held that Consumers is not liable for Use Tax on the repair-related items purchased by third-pa rty contractors as part of the ASP program.

IV. CONCLUSION

Accordingly, we hold that: (1) Consumers’ electrical distribution equipment and naturalgas distribution equipment ar e entitled to exemption from the Use Tax under MCL 205.94 o ; and (2) Consumers cannot be liable for Use Tax le vied on repair-related items purchased by thirdparty contractors under the ASP plans. The ruling of the Court of Claims is therefore affirmed in

15 “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims.” Houghton ex rel Johnson v Keller , 256 Mich App 336, 339; 662 NW2d 854 (2003).-9- part and reversed in part, and remanded for proceed ings consistent with th is opinion. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded.

/s/ Henry William Saad /s/ Peter D. O’Connell /s/ Christopher M. Murray