Allegheny Ludlum v. Treasury

Full title: ALLEGHENY LUDLUM CORPORATION v DEPARTMENT OF TREASURY

Court: Michigan Court of Appeals

Date published: Nov 22, 1994

207 Mich. App. 604 (Mich. Ct. App. 1994)

525 N.W.2d 512

Opinion

Docket No. 146570.

Submitted August 2, 1994, at Lansing.

Decided November 22, 1994, at 9:10 A.M.

Howard Howard (by Patrick R. Van Tiflin and Michele L. Halloran), for the plaintiff.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Russell E. Prins and Terry P. Gomoll, Assistant Attorneys General, for the defendant.

Before: MICHAEL J. KELLY, P.J., and CAVANAGH and M.J. SHAMO,^_ JJ.

_ Recorder's Court judge, sitting on the Court of Appeals by assignment.

PER CURIAM.

Plaintiff filed a complaint seeking a refund of single business taxes, MCL 208.1 et seq.; MSA 7.558(1) et seq., that were paid for the years 1988 and 1989, alleging that application of the statutory apportionment formula resulted in the attribution of business activity in Michigan that was disproportionate to plaintiff's actual activity in the state. The trial court granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(8). Plaintiff now appeals as of right. We affirm.

Summary disposition was properly granted in favor of defendant. Plaintiff's conclusory statements, unsupported by allegations of fact, were not sufficient to state a cause of action. Koebke v LaBuda, 339 Mich. 569, 573; 64 N.W.2d 914 (1954); Kramer v Dearborn Heights, 197 Mich. App. 723, 725; 496 N.W.2d 301 (1993). In any event, summary disposition was appropriate because value added is not subject to geographic ascertainment. Trinova Corp v Michigan Dep't of Treasury, 498 U.S. 358; 111 S Ct 818; 112 L Ed 2d 884 (1991). From a review of the record, it is clear the trial court applied the correct standard of review.

Plaintiff claims the trial court erred in not allowing it to file a second amended complaint. Assuming this claim was properly preserved for appellate review, People v Evola, 202 Mich. App. 178, 180; 507 N.W.2d 815 (1993); Michigan Mutual Ins Co v American Community Mutual Ins Co, 165 Mich. App. 269, 277; 418 N.W.2d 455 (1987), the court's denial of the request to file the amended complaint was proper because the record indicates that any amendment would have been futile. Trinova Corp, supra; McNees v Cedar Springs Stamping Co, 184 Mich. App. 101, 103; 457 N.W.2d 68 (1990).

Affirmed.