Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan
Opinion Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman ____________________________________________________________________________________________________________________________
FILED JULY 3, 2001
TIG INSURANCE COMPANY, INC.,
Plaintiff-Appellee,
v No. 115915
REVENUE DIVISION, DEPARTMENT OF TREASURY, STATE OF MICHIGAN,
Defendant-Appellant. ________________________________
TIG PREMIER INSURANCE COMPANY, INC.,
v No. 115916
Defendant-Appellant. ________________________________ BEFORE THE ENTIRE BENCH CAVANAGH, J.
These consolidated cases require us to decide whether a
1988 amendment of the Michigan Insurance Code’s retaliatory
tax, MCL 500.476a, deprived plaintiffs TIG Insurance Company
and TIG Premier Insurance Company of equal protection of the
laws under US Const, Am XIV and Const 1963, art 1, § 2, or
violated the Uniformity of Taxation Clause of Const 1963, art
9, § 3. Absent an imposition on a fundamental right or a
suspect class, tax legislation is reviewed to determine
whether its classifications bear a rational relation to a
legitimate state purpose. We conclude that the 1988
amendments of the retaliatory tax, which changed the tax
calculation, are rationally related to the legitimate state
purpose of promoting the interstate business of domestic
insurers, the same legitimate purpose behind the retaliatory
tax itself. Thus, the amendments of the retaliatory tax do
not violate equal protection, and also do not violate the
Uniformity of Taxation Clause. Accordingly, the judgment of
the Court of Appeals is reversed.
I
This case involves the retaliatory tax that Michigan
imposes on foreign insurers doing business in Michigan. Under
the retaliatory tax, when an insurer’s state of incorporation
imposes a larger aggregate tax burden on a Michigan insurer
doing business in that state than Michigan imposes on a
company from that state doing business in Michigan, the
foreign insurer must pay Michigan a tax equal to the
difference in the aggregate tax burdens. See MCL 500.476a.
Thus, to compute the retaliatory tax due from a foreign
insurer, if any, Michigan tallies all the taxes, fines,
penalties, and other burdens it otherwise imposes on the
foreign insurer doing business in Michigan. Michigan then
tallies the burden a hypothetical Michigan insurer would pay
to that insurer’s home state were the hypothetical Michigan
insurer doing the same amount of business there. If the other
state’s total burden on the hypothetical Michigan insurer
doing the same amount of business in that state would be
larger than the burden Michigan imposed on the foreign
insurer, the actual burden Michigan imposes is subtracted from
the other state’s burden on the hypothetical insurer, and the
difference is the retaliatory tax the foreign insurer owes
Michigan. These taxes have been common in insurance taxation
since the nineteenth century, see Western & Southern Life Ins
Co v State Bd of Equalization, 451 US 648, 668; 101 S Ct 2070;
68 L Ed 2d 514 (1981), and Michigan has had a form of a
retaliatory tax since 1871. See 1871 PA 80, § 4 (adding what
was then § 28 to the insurance code).
Until 1987, the retaliatory tax was one of two taxes
imposed on foreign insurers. The other was the premiums tax,
MCL 500.440, repealed by 1987 PA 261, which taxed a percentage
of the insurers’ business. However, in 1987, the Court of
Appeals held that the premiums tax violated equal protection,
and struck it as unconstitutional. See Penn Mut Life Ins Co
v Dep’t of Licensing & Reg, 162 Mich App 123, 130-133; 412
NW2d 668 (1987). After the Court of Appeals decision in Penn
Mutual, which was not appealed to this Court, the Legislature
revised the Michigan Insurance Code tax provisions by
repealing the premiums tax, subjecting foreign insurers
instead to the Single Business Tax, MCL 208.1 et seq., and
repealing and reenacting the retaliatory tax. See 1987 PA
261, 262. The new retaliatory tax, MCL 500.476a, mirrored the
prior retaliatory tax. However, the revision added subsection
(2), stating that “[T]he purpose of this section is to promote
the interstate business of domestic insurers by deterring
other states from enacting discriminatory or excessive taxes.”
In 1988, actual revenue from insurance taxes was below
the level of projected revenue the Legislature had relied upon
in enacting 1987 PA 261 and 262. One of the reasons that
revenue was lower than expected was that foreign insurers were
including assessments paid to private insurance associations
and facilities, such as the Worker’s Compensation Placement
Facility, among their Michigan burdens when calculating their
retaliatory taxes. When these assessments were included in
the foreign insurers’ Michigan burden, their Michigan burden
grew larger, and any differences between the Michigan burden
and the burden the insurers’ home states imposed shrank. The
result was less retaliatory tax revenue.
After these facts were clear, the Legislature enacted
1988 PA 349. This provision did not affect the retaliatory
tax’s scope. Instead, it only changed the method of
calculating the tax by providing that payments to private
insurance associations and facilities are not counted as part
of the Michigan burden when calculating retaliatory taxes.
The resulting statute provides:
(5) Any premium or assessment levied by an
association or facility, or any premium or
assessment of a similar association or facility
formed under a law in force outside this state, is
not a burden or special burden for purposes of a
calculation under section 476a, and any premium or
assessment paid to an association or facility shall
not be included in determining the aggregate amount
a foreign insurer pays to the commissioner under
section 476a.
(6) As used in this section, “association or
facility” means an association of insurers created
under this act and any other association or
facility formed under this act as a non-profit
organization of insurer members, including, but not
limited to, the following:
(a) The Michigan worker’s compensation
placement facility created under [MCL 500.2301 et
seq.]
(b) The Michigan basic property insurance
association created under [MCL 500.2901 et seq.]
(c) The catastrophic claims association
created under [MCL 500.3101 et seq.]
(d) The Michigan automobile insurance
placement facility created under [MCL 500.3301 et
(e) The Michigan life and health insurance
placement facility created under [MCL 500.7701 et
(f) The property and casualty guaranty
association created under [MCL 500.7901 et seq.]
[MCL 500.134(5), (6).][1]
Hence, payments to these and other similar facilities are not
part of the Michigan burden on foreign insurers, and such
payments required by other states cannot be considered part of
those states’ burden when calculating retaliatory taxes.
The dispute in this case originally involved plaintiffs’
retaliatory tax returns for 1990, 1991, and 1996. In those
years, plaintiffs had made payments to the Worker’s
Compensation Placement Facility, the Basic Property Insurance
Association, and the Automobile Insurance Placement Facility.
Subsections 134(5) and (6), however, required plaintiffs to
exclude those payments from their Michigan burdens when
calculating the retaliatory tax they owed. Plaintiffs
initially excluded these payments from their Michigan burden
1 The Michigan Assigned Claims Facility created under MCL
500.3171 was subsequently added to the statute as subsection
6(g). See 1990 PA 256.
and fully paid their retaliatory tax for each year. Later,
though, they filed amended returns that included these
payments in their Michigan burdens, claiming that requiring
them to exclude the payments violated the Equal Protection
Clauses of the state and federal constitutions, as well as the
Uniformity of Taxation Clause of the Michigan Constitution.
Plaintiffs, therefore, sought a refund of the alleged
unconstitutional overcharge. Defendant, however, denied
refunds for all three years.
Plaintiffs appealed the denial of refunds to the Michigan
Court of Claims, which consolidated their cases. The Court of
Claims held that MCL 500.134(5) violates equal protection
because it was enacted to raise revenue rather than to deter
other states from imposing discriminatory or excessive taxes
on Michigan insurers doing business in those other states.
Also, the court held that plaintiffs’ 1990 and 1991 claims
were time-barred by MCL 205.27a(6). The court, therefore,
ordered defendant to pay plaintiffs refunds consistent with
their amended 1996 retaliatory tax returns.
Both parties appealed, and the Court of Appeals affirmed.
That Court believed that when the Legislature revised the
retaliatory tax in 1987, the Legislature did not intend to
change the definition of “burden,” and later did so only
because revenues did not meet expectations. Thus, the Court
concluded that equal protection was violated because it was
“abundantly clear that 1988 PA 349 was enacted as a stop-gap
measure to raise funds in response to a projected shortfall in
insurance tax revenues. This is not a valid reason for
discriminating against foreign insurers.” 237 Mich App 219,
230; 602 NW2d 839 (1999). The Court of Appeals also affirmed
the Court of Claims conclusion that plaintiffs’ 1990 and 1991
claims were time-barred, leaving plaintiffs with a judgment
for refunds for 1996. Defendant appealed the Court of Appeals
conclusion that 1988 PA 349 violates equal protection, we
granted leave, 463 Mich 905 (2000), and we now reverse.
II
The United States Supreme Court addressed the
constitutionality of retaliatory taxes in Western & Southern
Life Ins Co v State Bd of Equalization, supra. In that case,
California had adopted a retaliatory tax similar to
Michigan’s, and an Ohio corporation challenged its
constitutionality. The Supreme Court noted that several
provisions of the constitution generally limit states’ ability
to regulate foreign corporations, but under the Commerce
Clause, US Const, art 1, § 8, Congress has delegated insurance
regulation to the states, see 15 USC 1011 et seq., and the
privileges and immunities clause, US Const, art 4, § 2, does
not apply to corporations, see Hemphill v Orloff, 277 US 537,
548-550; 48 S Ct 577; 72 L Ed 978 (1928), leaving only the
Equal Protection Clause as a basis for the challenge. Western
& Southern at 656. After reviewing its prior decisions, the
Court concluded that a state’s authority to treat foreign
corporations differently than domestic corporations should be
upheld if the different treatment bears a rational relation to
a legitimate state purpose. California’s retaliatory tax, the
Court held, had the legitimate state purpose of promoting
domestic insurers in other states by discouraging other states
from excessively taxing domestic insurers. The tax was
reasonably related to that purpose because the California
Legislature could have believed that the tax would “induce
other States to lower the burdens on California insurers in
order to spare their domestic insurers the cost of the
retaliatory tax in California.” Id. at 672. Thus, the
Supreme Court confirmed that retaliatory taxes do not violate
equal protection, and do not violate the constitution.
In light of Western & Southern, the general
constitutionality of Michigan’s retaliatory tax is clear. The
question in this case surrounds 1988 PA 349. That amendment
of Michigan’s retaliatory tax did not change the
classification plan drawn by Michigan’s retaliatory tax.
Rather, it only changed the calculation method of a foreign
insurer’s Michigan burden by providing that payments to
certain private insurance associations and facilities are not
included in the burden. Whether the amendment violates the
state or federal Equal Protection Clauses, which are
coextensive, see Armco Steel v Dep’t of Treasury, 419 Mich
582, 591; 358 NW2d 839 (1984), or Michigan’s Uniformity of
Taxation Clause, which is not discernably different from equal
protection in cases involving tax statutes, see id. at 592,
presents a question of law. We review questions of law de
novo. See Tolksdorf v Griffith, 464 Mich 1; ___ NW2d ___
(2001).
As Western & Southern declared, rational basis review
applies in challenges of retaliatory taxes. “Rational basis
review does not test the wisdom, need, or appropriateness of
the legislation, or whether the classification is made with
‘mathematical nicety,’ or even whether it results in some
inequity when put into practice.” Crego v Coleman, 463 Mich
248, 260; 615 NW2d 218 (2000). Rather, it tests only whether
the legislation is reasonably related to a legitimate
governmental purpose. The legislation will pass
“constitutional muster if the legislative judgment is
supported by any set of facts, either known or which could
reasonably be assumed, even if such facts may be debatable.”
Id. at 259-260. To prevail under this standard, a party
challenging a statute must overcome the presumption that the
statute is constitutional. Thoman v Lansing, 315 Mich 566,
576; 24 NW2d 213 (1946). Thus, to have the legislation
stricken, the challenger would have to show that the
legislation is based “solely on reasons totally unrelated to
the pursuit of the State’s goals,” Clements v Fashing, 457 US
957, 963; 102 S Ct 2836; 73 L Ed 2d 508 (1982), or, in other
words, the challenger must “negative every conceivable basis
which might support” the legislation. Lehnhauser v Lake Shore
Auto Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351
(1973).
In this case, plaintiffs claim that Michigan has exceeded
its authority to treat foreign corporations differently than
domestic corporations because the different treatment does not
bear a rational relation to a legitimate state purpose. This
is so, plaintiffs claim, because 1988 PA 349, which excluded
certain payments from plaintiffs’ Michigan burdens for
retaliatory tax calculations, converted the retaliatory tax
from a tax intended to discourage other states from imposing
excessive levels of taxation on Michigan insurers to a tax
designed to raise revenue at the expense of foreign insurers.
Thus, plaintiffs argue that the 1988 amendment of the
retaliatory tax cannot be constitutional.
Initially, we emphasize that Michigan’s retaliatory tax
has never, either before or after the 1988 amendment, treated
foreign insurers as a single class. Rather, the subset of
foreign insurers that must pay Michigan any retaliatory tax is
actually determined by the laws of other states.
Specifically, the subset is determined by the laws of those
states that impose more onerous burdens on Michigan insurers
than Michigan imposes on insurers from those states. The
Supreme Court made this same observation about the retaliatory
tax it held constitutionally permissible in Western &
Southern, stating that “[t]he retaliatory tax is not imposed
on foreign corporations qua foreign corporations, as would be
expected were the purpose of the tax to raise revenue from
noncitizens; rather, it is imposed only on corporations whose
home States impose more onerous burdens on California insurers
than California otherwise would impose on those corporations.”
Western & Southern at 670, n 23.
Absent a change in the legislative classification, we
cannot agree with plaintiffs’ claim that a 1988 amendment
converted the retaliatory tax into a tax designed to raise
revenue from foreign insurers. Rather, the selective
imposition of the tax on only those insurers incorporated in
states that tax Michigan insurers more heavily than Michigan
taxes them indicates that the purpose of the legislation is to
pressure those states to relieve the tax burden on Michigan
insurers doing business in those states. This is the precise
purpose the Legislature stated for adopting the retaliatory
tax, see MCL 500.476a(2), and the same purpose the Supreme
Court found “not difficult to discern” in Western & Southern
at 668. Further, in Western & Southern, the Supreme Court
held, without discussing the means a state may adopt to
calculate the retaliatory tax, that states are reasonable to
suppose that a retaliatory tax will induce other states to
lower their insurance tax rates. Id. at 672. Even with the
change in the method of calculation of the burden of
Michigan’s retaliatory tax, the tax remains rationally related
to this legitimate purpose, and plaintiffs cannot prevail.
However, even presuming that 1988 PA 349 can somehow be
viewed separately from Michigan’s retaliatory tax structure,
the Legislature could have rationally decided to exclude
payments to certain insurance associations and facilities from
Michigan’s retaliatory tax burden. The three facilities in
this case, the Worker’s Compensation Placement Facility, the
Automobile Insurance Placement Facility, and the Basic
Property Insurance Association, exist to provide insurance
coverage to insureds that may be unable to “procure the
insurance through ordinary methods.” MCL 500.2301(a); see
also MCL 500.3301(a) and MCL 500.2925 (describing eligibility
for Basic Property Insurance). Because high risk or otherwise
uninsurable insureds are provided for outside the normal
insurance market, insurers doing business in Michigan need not
bear the risks of insuring them, at least arguably benefitting
such insurers. The Legislature could have believed that if it
did not require payments to these facilities not to be
excluded from the retaliatory tax burden, other states would
not be discouraged from establishing similar facilities to
grant the same benefit to insurers doing business in those
states, including Michigan insurers. Indeed, if another state
had facilities and associations that paralleled the facilities
and associations mentioned in MCL 500.134, then any
retaliatory tax that insurers from the other state may owe
Michigan would not be affected by 1988 PA 349 at all.2 Again,
then, the Legislature could have had the permissible purpose
of promoting domestic insurers abroad, the same purpose it
stated in the retaliatory tax legislation. Because it is at
least debatable that excluding payments to such facilities
from Michigan’s retaliatory tax burden would encourage other
states to establish such facilities, the 1988 amendment is
rationally related to a legitimate purpose, and is not
constitutionally infirm.
Plaintiffs maintain, however, that the 1988 amendment
conflicts with the Supreme Court’s decision in Western &
Southern because it was designed entirely “to generate revenue
at the expense of out-of-state insurers.” As we have
explained, the tax does not affect foreign insurers as a
single class. Further, though, plaintiffs overlook the
presumption of constitutionality, and cannot account for the
legitimate bases of the legislation. Instead, plaintiffs seek
one possible illegitimate basis for the legislation.
Plaintiffs’ approach conflicts with Supreme Court precedent
because they have not shown that the legislation rests “solely
on reasons totally unrelated to the pursuit of the State’s
2 We note that several other states similarly exclude
payments to special associations and facilities from their
retaliatory tax burdens. See, e.g., Conn Gen Stat, 12-211;
215 Ill Comp Stat, 5/444.1(2).
goals . . . .” Clements at 963. Because there is at least
one conceivable rational basis that might support the
legislation, plaintiffs have not “negative[d] every
conceivable basis which might support” it, and cannot prevail.
Lehnhauser at 364.
In response, plaintiffs have argued that they need not
negate every conceivable basis for the legislation. This is
because, they claim, in equal protection cases, the Court
“need not . . . accept at face value assertions of legislative
purposes, when an examination of the legislative scheme and
its history demonstrates that the asserted purpose could not
have been a goal of the legislation.” Weinberger v
Weisenfeld, 420 US 636, 648, n 16; 95 S Ct 1225; 43 L Ed 2d
514 (1975). However, as discussed, an examination of the
legislative scheme in this case indicates that the asserted
purpose could well have been the goal of the legislation. For
plaintiffs to prevail, they must negate every conceivable
basis of the legislation. Because plaintiffs have not, they
cannot prevail.
Finally, plaintiffs attempt to distinguish this case from
Western & Southern by arguing that the tax revenue generated
in that case was “relatively modest,” see Western & Southern
at 669, but under the amendment, Michigan’s retaliatory tax
immodestly generates over a third of Michigan’s insurance tax
revenue. As a preliminary point, the fact that the
retaliatory tax raises revenue does not prove that raising
revenue was the state’s goal in adopting the tax. On rational
basis review, this Court only considers whether the
legislation is reasonably related to a legitimate purpose, and
does not test for “some inequity when [the legislation is] put
into practice.” Crego at 260. But further, though the
Western & Southern Court’s statement strikes us simply as an
observation and not, as plaintiffs contend, as the linchpin of
the Court’s analysis, even if it is an important point, this
case is distinguishable. Michigan’s retaliatory tax may
generate a third of Michigan’s insurance tax revenue, but the
Supreme Court did not state that the retaliatory tax it
approved raised a relatively modest amount of insurance tax
revenue, just that it raised a modest amount of revenue. The
joint appendix shows that although Michigan raised
approximately $67 million annually in retaliatory taxes for
the years 1991 through 1995, for example, when compared with
Michigan’s overall tax revenue for that period, which ranged
from $10.5 billion to $17.2 billion annually, see Michigan
Dep’t of Treasury, Annual Report of the State Treasurer
(1996), p 25, retaliatory tax revenue is certainly “relatively
modest.” Thus, even if retaliatory tax revenue must be
modest, as compared with Michigan’s overall tax revenue,
retaliatory tax revenue is not immodestly large, and
plaintiffs again have not shown Michigan’s retaliatory tax or
1998 PA 349 to be unconstitutional. Again, plaintiffs cannot
prevail.
III
In conclusion, neither Michigan’s retaliatory tax nor the
1988 amendment of that tax violates the state or federal
constitutions, which are coextensive in their equal protection
provisions. The retaliatory tax, and the amendments of it,
are rationally related to the legitimate governmental purpose
of promoting Michigan insurers in other states. Because the
tax and its amendment do not violate equal protection, they
also do not violate the Michigan Constitution’s Uniformity of
Taxation Clause, which is not discernibly different from the
Equal Protection Clause when the constitutionality of a tax
statute is being reviewed. Plaintiffs have not carried their
considerable burden, and the judgment of the Court of Appeals
is reversed.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred with CAVANAGH , J.
S T A T E O F M I C H I G A N
SUPREME COURT
REVENUE DIVISION, DEPARTMENT OF TREASURY, STATE OF MICHIGAN, Defendant-Appellant. ____________________________________ TIG PREMIER INSURANCE COMPANY, INC., Plaintiff-Appellee,
v No. 115916 REVENUE DIVISION, DEPARTMENT OF TREASURY, STATE OF MICHIGAN, Defendant-Appellant. ____________________________________ KELLY, J. (concurring). While I agree with the conclusion reached by the
majority, I write separately to state my disagreement with
certain of the reasoning it employs. Whereas the majority
articulates what would be legitimate purposes for adoption of
the amendment, it completely ignores the evidence presented by
plaintiffs. This evidence throws into doubt whether the
Legislature's actual purpose was legitimate, as it has to be
in order to conform with precedent from the United States
Supreme Court.
The states cannot impose more onerous taxes or other
burdens on foreign corporations than on domestic corporations,
unless they bear a rational relation to a legitimate state
purpose. Western & Southern Life Ins Co v State Bd of
Equalization, 451 US 648, 667-668; 101 S Ct 2070; 68 L Ed 2d
514 (1981). A retaliatory tax act, like that in question,
makes of foreign corporations a special classification of
taxpayers.
In evaluating the constitutionality of a challenged
classification, we must consider two separate issues. First,
whether the statute in question advances a legitimate purpose
and, second, whether, in passing it, the Legislature
reasonably could have believed that the classification would
promote that purpose. Id. at 668. Only after a legitimate
purpose is ascertained does a rational relationship between
the classification and purpose become relevant. See
Metropolitan Life Ins Co v Ward, 470 US 869, 881; 105 S Ct
1676; 84 L Ed 2d 751 (1985).
While this two-step inquiry does not require that the
Legislature articulate its purpose in forming the challenged
classification, it does require that a conceivable or
reasonable purpose exist. Nordlinger v Hahn, 505 US 1, 15;
112 S Ct 2326; 120 L Ed 2d 1 (1992). The United States
Supreme Court rejected the proposition that promotion of
domestic industry is always a legitimate purpose, reasoning
that it "eviscerate[s] the Equal Protection Clause."
Metropolitan Life, supra at 882. The Court stated that, if
this proposition were accepted, any discriminatory tax would
be upheld if it could be shown that it was reasonably
"intended to benefit domestic business." Id.
This appears to be the rationale used by the majority in
upholding the amendment at issue. The majority does not
discuss the evidence presented by plaintiffs or how this
evidence is insufficient to overcome the presumption of the
amendment's constitutionality. Rather, it concludes that the
purpose of the amendment may have been the same as the purpose
stated in the underlying retaliatory tax act. That was to
promote domestic insurers abroad, a permissible purpose.
It seems unlikely that was the Legislature's purpose
because, as stated by the majority, the amendment appeared
when the Legislature discovered that retaliatory tax revenue
was far less than expected. See slip op at p 4. If
sufficient evidence had been presented by plaintiffs that the
purpose was to cover the shortfall, the legitimate purposes
opined by the majority would not necessarily carry the day.
Therefore, this Court should state explicitly that the
rational basis test, while deferential, does not ensure that
all taxation legislation will pass constitutional muster. In
this case, plaintiffs presented evidence that employees from
the Department of Management and Budget and the Department of
Treasury advocated the amendment for a purpose that was
impermissible. This evidence does not overcome the
presumption of constitutionality because it does not
explicitly demonstrate that the "classification is a hostile
and oppressive discrimination." Lehnhausen v Lake Shore Auto
Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351
(1973). But this is not to say that, in another case, the
burden in overcoming the presumption of constitutionality
cannot be met.
In failing to address this fact, it appears that the
majority would uphold any classification, regardless of
evidence demonstrating an actual improper purpose for it. The
majority's scant treatment of the evidence presented seems to
eliminate any possibility of future litigants demonstrating an
improper purpose for a challenged classification. It reduces
the test for evaluating the constitutionality of a
classification to no more than abstract judicial imaginings
with little or no apparent basis in fact. Moreover, it
elevates a plaintiff's burden of proof to insurmountable
heights. Such reasoning is contrary to the United States
Supreme Court precedent of Western & Southern Life and
Metropolitan Life.