Indiana Dept. of State Revenue Gross Income Tax Division v. Lyall Elec., Inc.

• Decision Date: 28 October 1980
• Docket Number: No. 3-876-A-193,3-876-A-193
• Parties: INDIANA DEPARTMENT OF STATE REVENUE, GROSS INCOME TAX DIVISION, Defendant-Appellant, v. LYALL ELECTRIC, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 685

411 N.E.2d 685

181 Ind.App. 262

INDIANA DEPARTMENT OF STATE REVENUE, GROSS INCOME TAX DIVISION, Defendant-Appellant, v. LYALL ELECTRIC, INC., Plaintiff-Appellee.

No. 3-876-A-193.

Court of Appeals of Indiana, Third District.

Oct. 28, 1980.

Theodore L. Sendak, Atty. Gen. of Indiana, Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellant.

Miles C. Gerberding, James M. Prickett, Fort Wayne, for appellee.

GARRARD, Presiding Judge.

The Gross Income Tax Division of the State Department of Revenue appeals from the decision of the trial court that Lyall Electric, Inc. was entitled to a refund for tax it paid on receipts which should not have been included as income in its return.

Lyall is the successor to a parent corporation of a group of affiliated corporations. Its predecessor filed a consolidated return in 1969 which is the subject of this appeal. Lyall urges that it may, under IC 6-2-1-14, eliminate from its computation of gross income any income which it received from the sale of services to its affiliates. The state argues that income derived from sales of property, rentals, interest and dividends may be eliminated, but that the statute does not authorize elimination of income from sales of services.

After this suit was instituted, IC 6-2-1-14 was amended in one significant respect. It now provides that a consolidated

"... return shall include only the gross income of such members of the affiliated group as are incorporated in the state of Indiana or duly authorized to do business therein. The affiliated group will be allowed only one (1) exemption (deduction) upon a consolidated return as provided in IC 1971, 6-2-1-6. In such consolidated return there may be eliminated from the gross income only that portion which is received from transactions between such members as are incorporated in the state of Indiana or duly authorized to do business therein, and also interest, rentals and dividends paid by one (1) such corporate member to another ; Provided, however, That no such sales made, or other income earned, outside the state of Indiana may be eliminated under this section: Provided, further, That gross receipts of any member of the affiliated group which are received in distribution in connection with the dissolution of any other member of the group shall not be permitted to be eliminated under this section." (Emphasis added)

The word "transactions" has been substituted for "sales of property" and broadens the application of the statute to include sales of things other than property. Since passage of the amendment, Lyall's sales of services to its affiliates could properly be eliminated from gross income. The question remains whether it was entitled to eliminate such income before the amendment.

In brief, the state's argument is that in certain situations sales of services have different tax consequences than do other sales. Because of this, and the fact that sales of services are not specifically included in IC 6-2-1-14, the legislature intended that such sales not be eliminated from gross income. The department has so interpreted the statute in its...