Miller Pipeline Corp. v. Ind. Dep't of State Revenue

• Decision Date: 09 August 2013
• Docket Number: No. 49T10–1012–TA–64.,49T10–1012–TA–64.
• Citation: 995 N.E.2d 733
• Parties: MILLER PIPELINE CORPORATION, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
• Court: Indiana Tax Court

995 N.E.2d 733

MILLER PIPELINE CORPORATION, Petitioner,

v.INDIANA DEPARTMENT OF STATE REVENUE, Respondent.

No. 49T10–1012–TA–64.

Tax Court of Indiana.

Aug. 9, 2013.

Robert A. Romack, Dan R. Dunbar, Dunbar & Romack, Franklin, IN, Attorneys for Petitioner.

Gregory F. Zoeller, Attorney General of Indiana, Jessica E. Reagan, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.

ORDER ON PETITIONER'S MOTION FOR PARTIAL SUMMARY JUDGMENT

FISHER, Senior Judge.

Miller Pipeline Corporation appeals the Indiana Department of State Revenue's final determination denying its claim for refund of gross retail (sales) and use tax paid between 2005 and 2007. The matter is currently before the Court on Miller Pipeline's motion for partial summary judgment (Motion), which the Court denies.

FACTS AND PROCEDURAL HISTORY

The following facts are not in dispute. On September 10, 2009, the Department completed an audit of Miller Pipeline for tax years 2005 through 2007. On September 21, 2009, the Department issued proposed assessments against Miller Pipeline for tax years 2006 and 2007. Miller Pipeline paid the proposed assessments in their entirety on October 23, 2009.

On March 24, 2010, Miller Pipeline filed a claim with the Department seeking a refund of sales and use taxes it paid between 2005 and 2007. The Department subsequently denied Miller Pipeline's refund claim.

Miller Pipeline initiated this original tax appeal on December 21, 2010. On April 25, 2013, Miller Pipeline filed its Motion. The Court conducted a hearing on the Motion on July 9, 2013.

STANDARD OF REVIEW

Summary judgment is designed to provide speedy resolution to those cases—or those parts of cases—that may be determined as a matter of law because there are no factual disputes. Matonovich v. State Bd. of Tax Comm'rs, 705 N.E.2d 1093, 1096 (Ind. Tax Ct.1999), review denied. See alsoInd. Trial Rule 56(C) (explaining that summary judgment is proper only when there are no genuine issues of material fact ¹ and the moving party is entitled to judgment as a matter of law). Stated differently, a case is appropriate for summary judgment if the parties present evidence that obviates the need for a trial (whether by jury or bench) to resolve differing versions of “the truth” ( i.e., of the facts). See Stuteville v. Downing, 181 Ind.App. 197, 391 N.E.2d 629, 631 (1979) ( citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

The party moving for summary judgment bears the burden of establishing its propriety; thus, it must make a prima facie showing (1) that there are no genuine issues of material fact, and (2) that it is entitled to judgment as a matter of law. T.R. 56(C); Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1101 (Ind.Ct.App.1992). As part of that prima facie showing, the moving party is required to refer the court to the specific evidentiary matter that demonstrates that there are no genuine issues of material fact; indeed, at the time of filing its motion for summary judgment, the moving party “shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” T.R. 56(C). Only after the moving party makes its prima facie showing does the burden then shift to the non-moving party to show, through the designated evidence, that specific facts do indeed indicate a genuine issue of material fact. Babinchak, 598 N.E.2d at 1101 (citations omitted).

ANALYSIS AND ORDER

Miller Pipeline's Motion presents the Court with ten different issues, each asserting one reason or another as to why it believes the Department erroneously denied its refund claim. ( See Pet'r Br. Supp. Mot. Partial Summ. J. (“Pet'r Br.”) at 6–20.) Pursuant to Trial Rule 56(C), Miller Pipeline also designated the evidence upon which it premised each of its issues. Specifically, Miller Pipeline provided the Court with 15 documents—labeled Exhibits 13 through 27—to show that there were no genuine issues of material fact. ( See Pet'r Des'g Evid.; Pet'r Br., Exs. 13–27.) Given the numerous infirmities with that designated evidence, however, the Court will not be granting Miller Pipeline's Motion.

In order to address the infirmities with Miller Pipeline's designated evidence—yet conserve judicial resources—the Court's opinion today will speak only to two of Miller Pipeline's issues. Indeed, the exhibits specifically designated by Miller Pipeline with respect to those two issues suffer from particular problems that permeate all of Miller Pipeline's designated evidence.

I.

In its first issue, Miller Pipeline asserts that it is entitled to a refund of the use tax it erroneously remitted on a casual sale transaction. ( See Pet'r Br. at 6.) Specifically, Miller Pipeline explains:

A casual sale is defined as an isolated or occasional sale by the owner of tangible personal property where the owner is not regularly engaged in the business of making such sales. 45 I.A.C. 2.2–1–1(d). Here, [Miller Pipeline] purchased rolling stock, equipment, and tools in the amount of $949,006.00 from United Utilities Construction Company. [Miller Pipeline] self-assessed and remitted Indiana use tax in the amount of $36,687.36 for equipment and tools. United Utilities Construction Company was not engaged in the business of selling its rolling stock, equipment, and tools in the ordinary course of its business. Because the underlying transaction was a casual sale ... [the Department] erred in denying the portion of [Miller Pipeline's] refund claim related [thereto].

(Pet'r Br. at 6 ( citing Pet'r Br., Exs. 13–15).)

As previously mentioned, Trial Rule 56(C) requires that at the time it files a motion for summary judgment, “a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” T.R. 56(C). Because the Rule compels a party to identify the “parts” of any document upon which it relies, it may not designate various pleadings, discovery material, and affidavits in their entirety. See Filip v. Block, 879 N.E.2d 1076, 1081 (Ind.2008) (citation omitted); O'Connor v. Stewart, 668 N.E.2d 720, 722 (Ind.Ct.App.1996). Rather, “regardless of how concise or short the document is, in order to be properly designated, specific reference to the relevant portion of the document [ i.e., the specific portion of the document that contains the material fact or facts upon which the moving party relies] must be made.” ²O'Connor, 668 N.E.2d at 722 (footnote added). A proper designation should also include an explanation as to why those specifically designated facts are material. Kissell v. Vanes, 629 N.E.2d 878, 880 (Ind.Ct.App.1994) (citation omitted).

Moreover, when ruling on a motion for summary judgment, this Court will only consider properly designated evidence that would be admissible at trial. See Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App.1996) (citations omitted), trans. denied. See also In re Belanger's Estate, 433 N.E.2d 39, 42–43 (Ind.Ct.App.1982) (stating that before a court can determine whether summary judgment is appropriate, it must make certain threshold decisions pertaining to the evidential worth of the designated evidence presented). Thus, unsworn statements or unverified exhibits will not be considered. See Kronmiller, 665 N.E.2d at 627 (citation omitted) (explaining that because medical records were neither authenticated nor shown to be true and accurate copies of the material they purported to be, they carried no indicia of reliability and trustworthiness). Similarly, portions of affidavits that merely set forth conclusory facts or conclusions of law will not be considered. Coghill v. Badger, 430 N.E.2d 405, 406 (Ind.Ct.App.1982) (citations omitted).

In designating Exhibits 13, 14, and 15 as its evidence with respect to the casual sale” issue, Miller Pipeline has not identified the specific parts of those exhibits that contain the material fact or facts upon which it relies. ( See Pet'r Br. at 6 (merely citing to those exhibits in toto ).) Moreover, none of the exhibits has been paginated, despite the fact that each is between six and eleven pages long. ( See Pet'r Br., Exs. 13–15.) Furthermore, while all three exhibits appear to contain multiple documents, Miller Pipeline has not, apart from the first document within each exhibit, identified any of those documents.³ ( See Pet'r Des'g Evid.; Br., Exs. 13–15 (footnote added).) Finally, none of the exhibits—or any of the documents within each of the exhibits—has been sworn to in any way. ( See Pet'r Br., Exs. 13–15.) Given these infirmities, Miller Pipeline's Designated Exhibits 13, 14, and 15 are inadmissible and must be stricken. ^4,5See Kronmiller, 665 N.E.2d at 627–28 (footnotes added).

II.

Miller Pipeline's eighth issue claims that it is entitled to a refund of use tax it erroneously remitted on a “lump-sum” contract. Indeed:

[Miller Pipeline] contracted with Hession Farms, Inc. to replace field tile at a particular location. Per Anthony Hession, President, the underlying contract involved a “lump-sum” contract for improvement to realty and, as such, Hession Farms, Inc. paid sales/use tax on the materials used to complete the project. Under 45 I.A.C. 2.2–4–22 and 45 I.A.C. 2.2–4–26, the contractor in a “lump-sum” contract is liable for the payment of sales/use tax on the purchase price of all material used. Because Hession Farms, Inc. properly paid sales/use tax on the material portion of the “lump-sum” contract, [the Department] ... erred in denying the portion of [Miller Pipeline's] refund claim related to use tax paid [thereto].

(Pet'r Br. at 12–13 ( citing Pet'r Br., Ex. 26).)

Miller Pipeline's Designated Exhibit 26 is a photocopy of a one page form letter on “Dunbar & Romack” letterhead. ( See ...