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Etzler v. Indiana Department of Revenue

Court of Appeals of Indiana

March 3, 2015

Gordon A. Etzler, Appellant-Plaintiff,
v.
Indiana Department of Revenue, Appellee-Defendant

Appeal fro the Marshall Superior Court. The Honorable Curtis D. Palmer, Judge. Case No. 50C01-1308-PL-39.

Gordon A. Etzler, APPELLANT, Pro se, Valparaiso, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; John Lowrey, Deputy Attorney General, Indianapolis, Indiana.

Robb, Judge. Bailey, J., and Brown, J., concur.

OPINION

Page 1086

Robb, Judge.

Case Summary and Issue

[¶ 1] Gordon Etzler, pro se, appeals the trial court's award of summary judgment in favor of the Indiana Department of Revenue (the " Department" ). Etzler raises two issues for our review: (1) whether the trial court abused its discretion by denying Etzler's motion to strike an affidavit designated by the Department in support of its motion for summary judgment; and (2) whether the trial court erred by awarding summary judgment to the Department. Concluding Etzler is entitled to summary judgment, we reverse.[1]

Facts and Procedural History

[¶ 2] On December 20, 2000, the Department filed four tax warrants in Marshall County for unpaid income taxes owed by Dale Dodson. On July 16, 2010, the Department renewed its tax warrants in Marshall County, extending their life for an additional ten years.

[¶ 3] On November 16, 2010, Etzler filed a UCC Financing Statement with the Indiana Secretary of State, asserting an interest in any breeder's award proceeds owed to Dodson by the Indiana Horse Racing Commission. On November 17, 2010 and October 13, 2011, the Department levied against two separate breeder's awards in the amounts of $7,400 and $4,100, respectively. The funds were payable to Dodson but were intercepted and withheld by the Indiana State Auditor prior to deposit in Dodson's bank account. The funds were used to satisfy Dodson's outstanding tax liabilities.

[¶ 4] Etzler sent several letters to the Department claiming a right to the breeder's award funds and demanding that the funds be paid to him. The Department denied that Etzler had a superior interest in the funds and refused his demands for payment. Etzler sought an administrative review hearing to challenge the validity of Dodson's tax liability, but the Department denied Etzler's request. Etzler then brought an action with the Indiana Tax Court, but the case was dismissed for lack of subject matter jurisdiction on November 21, 2011. See Etzler v. Indiana Dep't of State Revenue, 957 N.E.2d 706, 709-10 (Ind. T.C. 2011).

[¶ 5] On November 11, 2012, Etzler filed a complaint against the Department in Porter County. On June ...


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