The Michigan authorities are crystal clear: the tax deficiency for which the responsible corporate officers are derivatively liable under Mich. Comp. Laws § 205.27a(5) is the same tax deficiency that was assessed against the corporate entity and for which the corporate entity was primarily liable. See Livingstone, 456 N.W.2d at 688–89, 695 (rejecting the theory that corporate officer liability for unpaid corporate tax is a “separate and distinct” liability from the corporation's liability for the unpaid tax); Keith v. Dep't of Treasury, 165 Mich.App. 105, 418 N.W.2d 691, 693 (1987) (noting that the responsible corporate officer statutes permit Treasury “to hold an individual personally liable for a corporation's tax liability”). That is why the tax deficiency does not need to be assessed against the individual corporate officers.
Then it must show either (1) that this officer has control over the making of the corporation's tax returns and payments of taxes; or (2) that this officer supervises the making of the corporation's tax returns and payments of taxes; or (3) that this officer is charged with the responsibility for making the corporation's returns and payments of taxes to the state. [See also Keith v Treasury Dep't, 165 Mich. App. 105, 108; 418 N.W.2d 691 (1987).]
Alleged error concerning the notice of intent could have been pursued through the Tax Tribunal. See Keith v Dep't of Treasury, 165 Mich App 105, 109; 418 NW2d 691 (1987) ("A defect in formal notice does not violate due process if notice was in fact given."). Similarly, final assessments Q270184 and Q866873 were both for 2007 single business taxes.
Our review of the Tax Tribunal's decision is limited to determining whether the decision is authorized by law and is supported by competent, material, and substantial evidence on the whole record. Keith v Dep't of Treasury, 165 Mich. App. 105, 107; 418 N.W.2d 691 (1987); Peterson v Dep't of Treasury, 145 Mich. App. 445, 449; 377 N.W.2d 887 (1985). The authority to impose liability on a corporate officer for unpaid sales tax is found in MCL 205.65(2); MSA 7.536(2), which provides in pertinent part:
In order to hold an individual personally liable for a corporation's tax liability, the Department of Treasury must show that the individual is an officer of the corporation and that he had control over the preparation of the corporation's tax returns and the payment of taxes, or that the individual supervised the preparation of the corporation's tax returns and payment of taxes or that the individual was charged with the responsibility for preparation of the corporation's tax returns and payment of taxes. Keith v Dep't of Treasury, 165 Mich. App. 105, 108; 418 N.W.2d 691 (1987). It is incumbent upon the Tax Tribunal to make findings of fact and conclusions of law. Granader v Southfield Twp, 145 Mich. App. 585, 588-589; 377 N.W.2d 893 (1985).
PER CURIAM. Petitioner Lee G. Keith appeals as of right from a Michigan Tax Tribunal decision following this Court's remand in Keith v Dep't of Treasury, 165 Mich. App. 105; 418 N.W.2d 691 (1987). The Tax Tribunal concluded that Keith's bankrupt corporation had been given adequate notice of a sales tax assessment.
Our conclusion that the officer may only raise the defenses available to the corporation is reinforced by this Court's decision when the responsible corporate officer found liable by the Tax Tribunal in Metro GMC Truck Center, Inc, supra, appealed to this Court. Keith v Dep't of Treasury, 165 Mich. App. 105; 418 N.W.2d 691 (1987). On appeal, Keith, the former vice-president, secretary and general sales manager of the corporation, argued, inter alia, that he had not received proper notice of the final assessment of unpaid taxes against the corporation.
Other state courts which have addressed the issue have reached similar conclusions. In Keith v. Department of Treasury (1987), 165 Mich. App. 105, 418 N.W.2d 691, the Michigan Court of Appeals held that notice to the corporation was notice to the responsible officer. The court reasoned that
Only those officers who have control over the preparing of the corporation's tax returns and the payment of taxes or supervise the preparing of the returns or the payment of taxes, or who are charged with the responsibility of preparing the returns or paying the taxes may be held personally liable for the corporation's unpaid tax liability. See Keith v. Treasury Dep't, 165 Mich.App. 105, 108, 418 N.W.2d 691 (1987). K.S.A. 79-3643 pertains to any individual who is responsible for the collection or payment of sales tax.
Statutory language determines a corporate officer's criminal liability for the corporation's failure to file a return or to pay taxes. See Keith v. Department of Treasury, 165 Mich. App. 105, 418 N.W.2d 691 (1987). The meaning of a statute is a question of law which is reviewable de novo on appeal.