Opinion
No. 7 October Term 1971, Docket No. 53,057.
Decided December 21, 1971.
Appeal from Court of Appeals, Division 2, Lesinski, C.J., and Danhof and Snow, JJ., affirming Court of Claims, William J. Beer, J. Submitted October 6, 1971. (No. 7 October Term 1971, Docket No. 53,057.) Decided December 21, 1971.
25 Mich. App. 522 reversed.
Complaint by Brunswick Corporation against the State and the Department of Treasury for refund of part of annual franchise fee. Judgment for plaintiff. Defendants appealed to the Court of Appeals. Affirmed. Defendants appeal. Reversed.
Miller, Canfield, Paddock Stone (by Richard B. Gushee), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William D. Dexter and Ronald D. Gregg, Assistant Attorneys General, for defendants.
Convinced that our four-man majority as it stood last fall was wrong ( National-Standard Company v. Department of Treasury, 384 Mich. 184) and that our former view of statutory "surplus" was eminently right, I agree with Judge QUINN when he wrote, for Division 2 ( United Airlines, Inc., v. Department of Treasury, 29 Mich. App. 242, 247):
The cases are cited and reviewed in the opinion below, 25 Mich. App. 522.
"Plaintiff's second attack on the computation of its 1967 franchise fee relates to `reserve for deferred federal income taxes'. Plaintiff does not include this item in surplus. Defendant insists it shall be included in surplus. In National-Standard Company v. Department of Treasury (1970), 384 Mich. 184, a majority of the Supreme Court has finally laid to rest this long-controverted issue. For the purpose of computing the Michigan franchise fee, `reserve for deferred federal income taxes' is included in surplus, except in the case of public utilities." (Appeal to the Supreme Court dismissed November 9, 1971 for want of a substantial Federal question; 40 LW 3210.)
This means that my vote must be cast to reverse. So cast.
T.M. KAVANAGH, C.J., and ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred with BLACK, J.