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Etzler v. Indiana Dep't of Revenue

Court of Appeals of Indiana

August 31, 2015

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

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

ATTORNEY FOR APPELLANT: Gordon A. Etzler, Gordon A. Etzler & Associates, LLP, 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.


Robb, Judge.

Case Summary and Issue

[¶1] In December of 2000, the Indiana Department of Revenue (the " Department" ) filed tax warrants against Dale Dodson in Marshall County and obtained a judgment creating a lien against Dodson's real property and personal property in that county. In 2011, in an attempt to collect unpaid taxes owed by Dodson, the Department levied on money located in Marion County without obtaining a judgment in Marion County or otherwise establishing an interest in property located outside of Marshall County. We disapproved of the Department's levy in this court's decision in Etzler v. Ind. Dep't of Revenue, 27 N.E.3d 1085 (Ind.Ct.App. 2015). In that opinion, we held that Indiana Code chapter 6-8.1-8 provides that a tax warrant entered as a judgment creates a lien on property in the county in which the judgment was entered, and the Department is not authorized to unilaterally levy on property on which a lien has not been established. Id. at 1088-89. The Department petitions this court for rehearing of that decision.

[¶2] On rehearing, the Department argues that our reading of Indiana Code chapter 6-8.1-8 is incorrect and claims that public policy considerations entitle the Department to a victory in this case. The Department also, for the first time on rehearing, raises a number of new arguments under Indiana's Uniform Commercial Code (Indiana Code chapter 26-1-9.1), asserting that several sections of that chapter grant the Department priority over Etzler and entitle the Department to the property at issue in this case. Finally, the Department asks that we clarify whether Etzler is entitled to prejudgment interest, an issue not previously before this court. We grant rehearing in order to address the Department's supplementary arguments, but we affirm our original holding in Etzler, supra.

Facts and Procedural History

[¶3] We recounted the relevant facts and procedural history in our previous opinion:

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.
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.
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).
On November 11, 2012, Etzler filed a complaint against the Department in Porter County. On June 7, 2013, the case was transferred to Marshall County as the proper venue. Once in Marshall County Superior Court, both parties filed motions for summary judgment and designated evidence in support thereof. Etzler filed a motion to strike the affidavit of Shawna Cole, which was designated by the Department in support of its motion for summary judgment. On April 29, 2014, the trial court granted the Department's motion for summary judgment, denied Etzler's motion for summary ...

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