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### STATE OF MICHIGAN

COURT OF APPEALS

KAREN SPRANGER,

Petitioner-Appellant, UNPUBLISHED March 12, 2015

v No. 319273 Michigan Tax Tribunal CITY OF WARREN, LC No. 00-449782

Respondent-Appellee.

Before: J ANSEN , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

.

Plaintiff appeals as of right a n order denying her a Principal Residence Exemption (PRE) for the 2012 tax year in this resi dential property tax action. We affirm.

Petitioner owns residential pr operty located at 7520 Hudson, i n respondent City of Warren. Petitioner filed a PRE affidavit on December 16, 2011, claiming that she had lived at the subject address since 2001, an d respondent initially grante d her an exemption for the 2012 tax year. However, on February 6, 2013, respondent ultimately denied petitioner’s request for a PRE for 2012, finding that she did not occupy the property. Pe titioner timely appealed that denial to the Michiga n Tax Tribunal (MTT).

After a hearing, the MTT referee issued a proposed opinion and judgment dated September 13, 2013, which recommended that the subject property not be entitled to a PRE under MCL 211.7cc. The referee found that water usage is consi dered a reliable and reasonable indicator for determining occupancy of a residence and noted th at water records for the property showed that the minimum chargeable amount of water was never ex ceeded from January 2008 through June 2012. The referee found petitioner’s explanation that she conserves water and uses
alternative water sources to be unpersuasive. The referee also found that petitioner failed to submit utility bills or other reliable evidence to support her contention that she had occupied the subject property as her principal residence.

Petitioner filed exceptions to the referee’s proposed opinion, arguing that there was evidence that neighbors saw her residing in the home, that all of her personal property was in the residence, that the absence of water usage was due to a dispute concerning the city’s metering protocol, and that she had provi ded corroborative testimony of other utilities used in the home. The tribunal judge considered pe titioner’s exceptions but noted that exceptions are limited to evidence submitted before or at the hearing and that he would n ot consider new evidence. On-2- November 6, 2013, the tribunal judg e adopted the referee’s prop osed opinion and entered a final opinion and judgment finding that p etitioner had failed to prov e by a preponderance of the evidence that she was entitled to an exemption. Petitioner now appeals that final opinion and judgment.

As stated in Briggs Tax Serv, LLC v Detroit Pub Sch , 485 Mich 69, 75; 780 NW2d 753 (2010):

The standard of review of Tax Tribunal cases is multifaceted. If fraud is not claimed, this Court reviews the Tax Tribunal’s decision for misapplication of the law or adoption of a wrong pr inciple. We deem the Tax Trib unal’s factual findings conclusive if they are supported by “competent, materi al, and substantial evidence on the whole record.” But when statutory interpretati on is involved, this
Court reviews the Tax Tribuna l’s decision de novo. [Citations omitted.]

A petitioner must establish enti tlement to a statutory exemptio n by a preponderance of the
evidence. ProMed Healthcare v City of Kalamazoo

, 249 Mich App 490, 495; 644 NW2d 47 (2002).

The entitlement to a PRE is governed by statute. MCL 211.7cc( 1) provides that “[a] principal residence is exempt from the tax levied by a local sc hool district for school operating purposes . . . .” MCL 211.7dd(c) defines a “[p]rincipal reside nce” as “the 1 place where an owner of the property has his or her true, fixed, and permanent home to which, whenever absent,
he or she intends to return and that shall continue as a princi pal residence until another principal residence is established. . . .” A property owner claiming a P RE is required to file an affidavit with the local taxing authority attesting that the property is owned and occupied as a principal residence. MCL 211.7cc(2).

Petitioner argues that the reco rd supported a finding that 752 0 Hudson was her primary
residence and thus she was enti tled to a PRE. However, petitio ner failed to provide competent, material, and substantial evidence to prove by a preponderance of the evidence that she actually occupied 7520 Hudson as her one true, fixed, and permanent home for the period at issue as required to receive a PRE.

In James F Roberts v Twp of West Bloomfield , unpublished opinion per curiam of the Court of Appeals, issued May 10, 2012 (Docket No. 303098), slip op at 1, the petitioner, James Roberts, owned residential property that he used as rental prop erty. After his tenants vacated the subject property, Roberts sought to claim the property as his p rincipal residence and sought a

PRE. Id . In arguing against a PRE, the respondent township relied on photographic evidence that showed that the residence’s yard had not been cleaned, tha t the residence lacked window treatments, and that there was a “paucity of furnishings.” Id . at 2. “Most importantly, the respondent established that Roberts did not utilize water or se wage services from September 2007 through May 2009.” Id . at 4. The Court reasoned:

On appeal, Roberts contends that “[t]here are a myriad number o f reasons why someone occupying a residence may not use water, including, but not limited to, bottled drinking water, showerin g at a health club, not waterin g grass, not-3- cooking, etc.” We find Roberts’ claim patently ridiculous. It is incredible that a person could live in a home for 20 months without using the bat hroom facilities or turning on the kitchen sink, let alone the myriad other reasons a residential
customer must utilize wate r and sewage services. [ Id . at 5.]

Finally, while the Court acknowledged that Roberts presented do cuments that usually help to indicate residency (such as his driver’s license, voter registr ation card, and tax returns listing the subject property as his address), those documents were deemed i nadequate in light of the other evidence presented that indicate d that no one, including Robert s, occupied the subject property.

Id

.

The Roberts ruling is instructive here. While an unpublished opinion does not provide binding precedent, it can be used as persuasive analysis. See In re Application of Indiana Michigan Power Co , 275 Mich App 369, 380; 738 NW2d 289 (2007); see also Tomiak v
Hamtramck School District , 426 Mich 678, 698-699; 397 NW2d 770 (1986). Petitioner attem pts to distinguish Roberts from her case because her property was never rented to tenants and had indications of occupancy such a s the presence of personal posse ssions and lawn maintenance. However, the “most important[]” d etermining factor of occupancy set forth in Roberts was water and sewer usage, Roberts , unpub op at 4, and petitioner here had extremely little water usage at the subject property and no proof of an alternative water sourc e or a reasonable explanation about the lack of water usage. P etitioner’s claim that she “li ve[s] a spartan existence” and her arguments relating to the installation of a “smart meter” 1 failed to counter the inference of a lack of occupancy due to lack of water usage.

We note that, although respondent did primarily rely on petiti oner’s lack of water usage in denying the PRE, it also pres ented evidence that petitioner only registered to vote in respondent city on July 6, 2011, and the registration showed he r as having moved to the city from an address in Clinton Township. This information was pert inent to petitioner’s credibility because petitioner had previously claimed to have lived at the subject property during the period she was registered to vote in Clinton Township. With regard to petitioner’s “rewards” cards purportedly listing the subject pr operty as her address, we not e that copies of the cards were not made part of the record, the cr iteria for supplying an address were not submitted, and the dates of issuance were not supplied. Thus, those cards did nothing to e stablish petitioner’s occupancy of the subject property, and none of petitioner’s remaining eviden ce proved by a preponderance of the evidence that she actually occupied 7520 Hudson as her one true, fixed, and permanent home for the period at issue as required to receive a PRE. The MTT’s decision was based on competent, material, and subst antial record evidence,
and thus the MTT acted within its authority when denying the PR E.

1 Petitioner’s water was turned off because she objected to the installation of a “smart water meter” by respondent. We note that this shutoff did not occur until the autumn of 2012, after the observed usage of very small amounts of water.-4- Affirmed.

/s/ Kathleen Jansen
/s/ Patrick M. Meter /s/ Jane M. Beckering