                           STATE OF MICHIGAN

                            COURT OF APPEALS



ARBOR CROSSINGS APT LLC, ARBOR                                        UNPUBLISHED
CROSSINGS KEARNEY TIC LLC, and READ                                   October 26, 2017
PROPERTY GROUP,

               Petitioners-Appellants,


v                                                                     No. 334318
                                                                      Tax Tribunal
TOWNSHIP OF MUSKEGON,                                                 LC No. 16-003125-TT

               Respondent-Appellee.


Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

         Petitioners appeal as of right the order of the Tax Tribunal dismissing their tax petition as
untimely. This case arises from a dispute over what type of postage mark establishes the date of
filing for a petition filed with the Tax Tribunal. Pursuant to MCL 205.735a(6), a petitioner must
file “a written petition on or before May 31 of the tax year involved” to invoke the relevant
jurisdiction of the Tax Tribunal. Petitioner sent an envelope to the Tax Tribunal that bore a
meter postmark dated May 31, 2016, and a United States Postal Service (USPS) postmark dated
June 1, 2016. The Tax Tribunal held that only the USPS postmark was the official date of filing.
We affirm.

        We review de novo the Tax Tribunal’s interpretation of statutes. Wexford Med Group v
City of Cadillac, 474 Mich 192, 202; 713 NW2d 734 (2006). The Tax Tribunal’s decision to
“dismiss a petition for failure to comply with its rules or orders” is reviewed for an abuse of
discretion. Prof Plaza, LLC v City of Detroit, 250 Mich App 473, 475; 647 NW2d 529 (2002).
An abuse of discretion occurs when a decision falls outside the range of reasonable and
principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

       The timeliness of a filing with the Tax Tribunal is determined by MCL 205.735a(7),
which provides as follows:

       A petition is considered filed on or before the expiration of the time period
       provided in this section or by law if 1 or more of the following occur:



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               (a) The petition is postmarked by the United States postal service on or
       before the expiration of that time period.

              (b) The petition is delivered in person on or before the expiration of that
       time period.

               (c) The petition is given to a designated delivery service for delivery on or
       before the expiration of that time period and the petition is delivered by that
       designated delivery service or, if the petition is not delivered by that designated
       delivery service, the petitioner establishes that the petition was given to that
       designated delivery service for delivery on or before the expiration of that time
       period.

The Tax Tribunal has interpreted MCL 205.735a(7) to mean that “[s]ubmissions by mail are
considered filed on the date indicated by the U.S. postal service postmark on the envelope
containing the submissions.” Mich Admin Code R 792.10219(5), TTR 219(5). Here, there is no
dispute that petitioners attempted to file their petition through the USPS pursuant to MCL
205.735a(7)(a). Therefore, the dispute in this case is whether the Tax Tribunal properly
interpreted MCL 205.735a(7)(a) in finding that petitioners’ petition was untimely.

        We generally defer to interpretations given by the Tax Tribunal to statutes it is delegated
to administer, but in the event of a conflict between a statute and an administrative rule, the
statute prevails. Grimm v Treasury Dep’t, 291 Mich App 140, 145; 810 NW2d 65 (2010); Grass
Lake Improvement Bd v Dep’t of Environmental Quality, 316 Mich App 356, 366; 891 NW2d
884 (2016). Clear and unambiguous language in a statute establishes the intent of the
Legislature, which this Court then effectuates as written. Lash v City of Traverse City, 479 Mich
180, 187; 735 NW2d 628 (2007). “Terms used in a statute must be given their plain and
ordinary meaning, and it is appropriate to consult a dictionary for definitions.” EldenBrady v
City of Albion, 294 Mich App 251, 254-255; 816 NW2d 449 (2011). We “may read nothing into
an unambiguous statute that is not within the manifest intent of the Legislature as derived from
the words of the statute itself.” Snead v John Carlo, Inc, 294 Mich App 343, 355; 813 NW2d
294 (2011).

        The operative language of the statute is “postmarked by the United States postal service.”
Thus, the statute unambiguously treats “postmarked” as a verb, or in other words, an action
undertaken by the USPS. Petitioners rely on treating the word as a noun, which would
impermissibly rewrite the statute to read something in effect, “bearing a postmark from the
United States postal service.” Although perhaps a subtle distinction, we are not permitted to
deviate from what the Legislature actually wrote. “Postmark,” when used as a verb, means “to
put a postmark on.” Merriam-Webster’s Collegiate Dictionary (11th ed). Consequently, the
statute unambiguously requires the postmark to have been applied “by the United States postal
service.”

       We conclude that it was not, and petitioners do not appear to seriously contend that it was
so applied. A postage meter is “a device or system of components a customer uses to print
evidence that postage required for mailing has been paid.” Mailing Standards of the United
States Postal Service, Domestic Mail Manual (DMM), § 604.4.1.1. Postage meters imprint

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postage under license of the USPS, DMM § 604.4.2, and are regulated by the USPS to ensure
they are properly used, DMM §§ 604.4.4, 705.19.0. Thus, the petition in this case could not
have literally been “postmarked” by the USPS because it was postmarked by petitioners. At
best, the petition was postmarked under license of the USPS. The statute unambiguously
mandates that only petitions that are “postmarked by the United States postal service” fall within
the provisions of MCL 205.735a(7)(a).

         “It is a well-known principle that the Legislature is presumed to be aware of, and thus to
have considered the effect on, all existing statutes when enacting new laws.” Walen v Dep’t of
Corr, 443 Mich 240, 248; 505 NW2d 519 (1993). Further, “[w]hen the Legislature enacts laws,
it is presumed to know the rules of statutory construction and therefore its use or omission of
language is generally presumed to be intentional.” Carson City Hosp v Dep’t of Community
Health, 253 Mich App 444, 447-448; 656 NW2d 366 (2002). Thus, the Legislature is presumed
to have been aware of the laws allowing for the use of postage meters to send mail through the
USPS, see Walen, 443 Mich at 248, yet it used the phrase “postmarked by the United States
postal service” in MCL 205.735a(7)(a), thereby intentionally excluding mail postmarked by
postage meters under license of the USPS, see Carson City Hosp, 253 Mich App at 447-448.
Moreover, to interpret MCL 205.735a(7)(a) as permitting mail postmarked by postage meters
would render the phrase “by the United States postal service” surplusage and, therefore, not give
full effect to the Legislature’s intent. See Jesperson v Auto Club Ins Ass’n, 499 Mich 29, 37; 878
NW2d 799 (2016).

         Petitioner cites several cases from other jurisdictions for the proposition that meter
postmarks have been considered postmarks by the USPS, but none of those authorities held that a
meter postmark constituted a postmark by the USPS. We hold that the Tax Tribunal did not err
in its interpretation of MCL 205.735a(7)(a) because, by its clear language, MCL 205.735a(7)(a)
requires that the petition be postmarked by the United States postal service. Accordingly, the
tribunal did not abuse its discretion by denying petitioners’ petition for lack of jurisdiction
because only the USPS postmark, and not the meter postmark, on the petition was relevant to its
filing date under MCL 205.735a(7)(a), and the USPS postmark was dated after the filing
deadline in MCL 205.735a(6).

        Petitioners finally argue that the Tax Tribunal’s interpretation of MCL 205.735a(7)(a)
would violate the Equal Protection Clauses of the United States and Michigan Constitutions; US
Const, Am XIV and Const 1963, art 1, §2; by creating two classes of people and unjustifiably
treating them in a disparate manner. Although petitioner raises this issue for the first time on
appeal, the Tax Tribunal would not have had the power to address it, so it is proper for us to
consider it. Electronic Data Sys Corp v Twp of Flint, 253 Mich App 538, 549; 656 NW2d 215
(2002). The two classes to which petitioner refers are people who do and do not use postage
meters. This is not the sort of “largely innate” considered protected or otherwise subject to
heightened scrutiny under the Equal Protection Clause. Crego v Coleman, 463 Mich 248, 258-
261; 615 NW2d 218 (2000). Petitioner must therefore establish that the requirement is
“‘arbitrary and wholly unrelated in a rational way to the objective of the statute.” Electronic
Data Sys Corp, 253 Mich App at 552 (quotation omitted).

       The purpose of the filing requirements in MCL 205.735a is to invoke the jurisdiction of
the Tax Tribunal, and the purpose of MCL 205.735a(7) in particular is “to provide a record of

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the date of mailing, because mailing is the event that invokes the jurisdiction of the Tax Tribunal,
and to prevent stale claims.” Electronic Data Sys Corp, 253 Mich App at 549-550. Regulating
how to invoke the Tax Tribunal’s jurisdiction is a legitimate government interest. Id. at 553.
Requiring an official postmark by the USPS, and not allowing meter postmarks, rationally relates
to this purpose because meter postmarks are susceptible to biases that USPS postmarks are not,
and USPS postmarks are inherently more reliable than meter postmarks. Moreover, a petitioner
that sends a petition using metered mail is, in fact, different from a person that does not use
metered mail, and “those things which are different in fact or opinion [are not required] to be
treated in law as though they were the same.” Electronic Data Sys Corp, 253 Mich App at 551
(alteration in original; citation and quotation marks omitted). Accordingly, because MCL
205.735a(7)(a), as interpreted by the Tax Tribunal, was rationally related to a legitimate
government purpose, petitioners’ Equal Protection claim fails.

       Affirmed.

                                                             /s/ Stephen L. Borrello
                                                             /s/ William B. Murphy
                                                             /s/ Amy Ronayne Krause




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