ATTORNEY FOR PETITIONER: JAMES K. GILDAY, GILDAY &
ASSOCIATES, P.C., Indianapolis, IN.
FOR RESPONDENT: GREGORY F. ZOELLER, INDIANA ATTORNEY GENERAL;
JOHN P. LOWREY, DEPUTY ATTORNEY GENERAL, Indianapolis, IN.
ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
Blood Wentworth, Judge.
Popovich claims that he is a professional gambler and, as
such, reported income and deductions associated with his
trade. The Indiana Department of State Revenue disagreed that
gambling was his occupation and issued adjusted gross income
tax (AGIT) assessments for the 2003, 2004, and 2005 tax years
(" years at issue" ). The matter, currently before
the Court on the Department's Motion for Summary
Judgment, presents the following issues for the Court to
decide: whether the Department's 2003 AGIT assessment was
timely; and whether Popovich was a professional gambler
eligible for certain deductions from his adjusted gross
income. Upon review, the Court finds in favor of Popovich in
part and denies the Department's Motion.
AND PROCEDURAL HISTORY
following facts are not in dispute. On December 29, 2007, the
Department issued an Investigation Summary to Popovich
rejecting his contention that he was engaged in the trade or
business of gambling in 2003 and 2004. (See Resp't
Confd'l Des'g Evid., Vol. VI at 1213-31, May 11,
2012.) Consequently, on January 28, 2008, the Department
issued Proposed Assessments to Popovich in the amount of
$403,762.72 for additional AGIT due, as well as interest and
penalties. (See Resp't Confd'l Des'g Evid., Vol.
VI at 1232-41.) Popovich protested, but the Department upheld
the Proposed Assessments in their entirety. (See Resp't
Confd'l Des'g Evid., Vol. I at 1252-63; Resp't
Des'g Evid., Vol. I at 1203-12.)
October 4, 2010, Popovich initiated an original tax appeal
challenging the Department's imposition of additional
AGIT and interest for the 2003 and 2004 tax years and its
imposition of negligence penalties for all of the years at
issue. (See Pet'r Br. Supp. Resp. Opp'n Resp't
Mot. Summ. J. (" Pet'r Br." ) at 2-3 (citing
generally Pet'r Pet.), Aug. 15, 2014.) On February 9,
2012, the Department moved for summary judgment and
designated, among other things, the Proposed Assessments as
evidence. On February 27, 2015, the Court held a hearing on
the Department's Motion. Additional facts will be
supplied as necessary.
Summary judgment is proper 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). A genuine issue of material fact
exists when a fact concerning an issue that would dispose of
the case is in dispute or when the undisputed facts support
conflicting inferences as to the resolution of an issue.
Miller Pipeline Corp. v. Indiana Dep't of State
Revenue, 995 N.E.2d 733, 734 n.1 (Ind.Tax Ct. 2013).
as here, the Department has moved for summary judgment and
properly designated its Proposed Assessments as evidence, it
has made a prima facie case that there is no genuine issue of
material fact regarding the validity of the assessed tax. See
Indiana Dep't of State Revenue v. Rent-A-Center E.,
Inc. (RAC II), 963 N.E.2d 463, 466-67 (Ind. 2012).
Consequently, the burden to produce evidence that
demonstrates that there is, in actuality, a genuine issue of
material fact with respect to the assessed tax has shifted to
Popovich. See id. at 467.
designated evidence to demonstrate whether genuine issues of
material fact exist regarding the timeliness of the
Department's 2003 Proposed Assessment and whether
Popovich was engaged in the trade or business of gambling in
2003 and 2004. (See Pet'r Br. at 39-68.) Nevertheless,
the Court must first address the Department's arguments
that a portion of Popovich's designated evidence, i.e.,
Popovich's Affidavit and Preston Boskett's Expert
Witness Report, is inadmissible. (See generally Resp't
Reply Supp. Resp't Mot. Summ. J. (" Resp't Reply
Br." ) at 4-7 (referring to Pet'r Des'g Evid.,
Exs. A-B, Aug. 15, 2014), Jan. 20, 2015.) See also Miller
Pipeline, 995 N.E.2d at 736 (providing that " when
ruling on a motion for summary judgment, this Court will only
consider properly designated evidence that would be
admissible at trial" (citations omitted)).
Popovich's designated evidence Popovich's
Department asserts that the Court should disregard
Popovich's Affidavit because it " contradicts other
statements made by Popovich during discovery[,]" is
internally inconsistent, contains conclusory statements, puts
Popovich's credibility at issue, and improperly attempts
to create genuine issues of material fact where there are
none. (See Resp't Reply Br. at 4-5; Hr'g Tr. at
98-99.) The Department, however, has not supported these
assertions by identifying a single instance where statements
in Popovich's Affidavit contradicted his discovery
statements, were internally inconsistent, were improperly
conclusory, put his credibility at issue, or improperly
attempted to create a genuine issue of material fact.
Instead, the Department merely identified instances where
Popovich's characterization of the evidence differed from
the Department's. (Compare, e.g., Resp't Reply Br. at
4 and Resp't Br. Supp. Mot. Summ. J. (" Resp't
Br." ) at 20-22, Feb. 9, 2012 with Pet'r Des'g
Evid., Ex. A ¶ ...