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Asplundh Tree Expert Co. v. Indiana Dep't of State Revenue

Tax Court of Indiana

June 30, 2015

ASPLUNDH TREE EXPERT CO., Petitioner,
v.
INDIANA DEPARTMENT OF STATE REVENUE, Respondent

ATTORNEYS FOR PETITIONER: ANDREW K. LIGHT, JAMES H. HANSON, LYNNE D. LIDKE, RONALD J. MORELOCK, SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C., Indianapolis, IN.

ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER, ATTORNEY GENERAL OF INDIANA; JESSICA E. REAGAN, DEPUTY ATTORNEY GENERAL, Indianapolis, IN.

Page 745

ORDER ON PETITIONER'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Martha Blood Wentworth, Judge.

Asplundh Tree Expert Company has appealed the Indiana Department of State Revenue's denials of its claims for a refund of use tax. The matter is currently before the Court on Asplundh's Motion for Partial Summary Judgment. Asplundh's Motion presents two issues that the Court restates as: 1) whether Asplundh properly paid Indiana use tax on its out-of-state purchases of commercial motor vehicles; and if so, 2) whether the imposition of use tax violated the Commerce Clause of the United States Constitution. Finding that Asplundh properly paid use tax on its vehicle purchases and that the imposition of use tax did not violate the Commerce Clause, the Court grants partial summary judgment to the Department.

FACTS AND PROCEDURAL HISTORY

Asplundh, a foreign corporation headquartered in Willow Grove, Pennsylvania, is a private motor carrier that provides specialized vegetation management and emergency storm services to customers throughout the United States. (See Pet'r Des'g Evid. (" Simpson Aff." )[1] ¶ ¶ 1, 2.) Asplundh garages motor vehicles in various states, including Indiana, in order to provide these specialized services. (See Simpson Aff. ¶ 3.)

Between 2007 and 2009, Asplundh purchased over 500 custom-built commercial motor vehicles from non-Indiana retailers, intending to use the vehicles to provide its services in states other than Indiana. (See Simpson Aff. ¶ ¶ 2, 5, 8-9.) As a result, the vehicles were not delivered to Indiana, garaged in Indiana, and most were never even driven on Indiana's highways.[2] (See Simpson Aff. ¶ ¶ 5, 7-9.) Asplundh did, however, register and license the vehicles in Indiana under the terms of the International Registration Plan (the IRP).[3] (See Simpson Aff. ¶ ¶ 6, 10; Hr'g Tr. at 10.) Asplundh also titled the vehicles in Indiana at which time it paid the Department (through the Indiana Bureau of Motor Vehicles (BMV)) approximately $2.6 million

Page 746

in use tax for the periods between January 1, 2007, and May 31, 2009 (the periods at issue). (See Simpson Aff. ¶ ¶ 6, 10.)

Asplundh subsequently filed two claims with the Department seeking a refund of the use tax it remitted on the vehicles. (See Simpson Aff. ¶ ¶ 8, 11.) The Department denied both of Asplundh's refund claims. (See Simpson Aff., Exs. B, D.)

Asplundh then filed two appeals with the Court challenging the Department's denials of its refund claims. The Court consolidated Asplundh's appeals on May 24, 2012. Asplundh filed its Motion on June 4, 2012. The Court held a hearing on October 31, 2012. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

Summary judgment is proper only when the designated evidence demonstrates that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). " When any party has moved for summary judgment, the [C]ourt may grant summary judgment to any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party." T.R. 56(B).

LAW & ANALYSIS


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