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The University of Phoenix, Inc. v. Indiana Department of State Revenue

Tax Court of Indiana

February 6, 2017

THE UNIVERSITY OF PHOENIX, INC., Petitioner,
v.
INDIANA DEPARTMENT OF STATE REVENUE, Respondent.

          ATTORNEYS FOR PETITIONER: RANDAL J. KALTENMARK ZIAADDIN MOLLABASHY BARNES & THORNBURG LLP THEODORE R. BOTS JENNY A. AUSTIN BAKER & McKENZIE LLP, SCOTT L. BRANDMAN BAKER & McKENZIE LLP

          ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR. ATTORNEY GENERAL OF INDIANA JESSICA R. GASTINEAU WINSTON LIN PAVINDER K. NIJJAR DEPUTY ATTORNEYS GENERAL

          ORDER ON PETITIONER'S MOTION TO COMPEL RESPONSES TO DISCOVERY REQUESTS

          Martha Blood Wentworth, Judge, Indiana Tax Court

         The University of Phoenix, Inc. has moved to compel the Indiana Department of State Revenue to produce information and documents regarding 1) Section 14 of House Bill 1349 ("H.B. 1349"), 2) the Tax Competitiveness and Simplification Report of September 2014 (the "Report"), and 3) a presentation on the Report (the "Presentation") as well as to compel the designation of a proper 30(B)(6) witness. Upon review, the Court grants the University's motion in part and denies it in part.

         FACTS AND PROCEDURAL HISTORY

         In November of 2014, the University filed an original tax appeal challenging the Department's decision to source some of its online tuition revenue for the 2009 through 2011 tax years using a market-based or customer-based method rather than the income-producing activity (i.e., costs of performance) method required under Indiana Code § 6-3-2-2(f). During discovery, the University served the Department with its First Set of Interrogatories, First Request for Production of Documents, Supplemental Request for Production of Documents, and deposed the Department's three designated 30(B)(6) witnesses. (See generally Pet'r Mot. Compel Resp. Discovery Requests ("Pet'r Br.") ¶¶ 12, 22, 46-48, Exs. A-C.) The Department's responses to the University's Interrogatory Number 26, Request for Production Number 17, Supplemental Request for Production Numbers 1 and 2, and its 30(B)(6) witness designations are the subjects of this motion to compel.

         Interrogatory Number 26 and Request for Production Number 17

Interrogatory Number 26 asked the Department to:
Identify all documents that the Department obtained or has in its possession relating to the proposed amendment of Ind. Code § 6-3-2-2(f) as contained in the original version of [H.B. 1349], § 14 introduced on January 13, 2015 in the State of Indiana General Assembly (Exhibit A).

(Pet'r Br., Ex. A at 14-15.) Request for Production Number 17 sought:

All Documents and Communications relating to the proposed amendment of Ind. Code § 6-3-2-2(f) as contained in the original version of [H.B. 1349], § 14 introduced on January 13, 2015 in the State of Indiana General Assembly.

(Pet'r Br., Ex. B at 116.) On June 22, 2016, after having received a five-month extension of time to answer the University's written discovery requests, the Department objected to Interrogatory Number 26 explaining that:

[t]he Department objects to Interrogatory No. 26 as vague and ambiguous in its use of the terms "obtained, " "proposed amendment, " and "original version." The Department also objects that this Interrogatory is oppressive and unduly burdensome by requesting "all documents" without any limitation, including timeframe and subject matter. The Department further objects that [] the information apparently sought by this [I]nterrogatory is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence, as the Tax Court reviews appeals from the Department de novo, the original version of [H.B. 1349] was not enacted, and this case regards the assessment of tax against [the University] during a tax year prior to [H.B. 1349's] introduction. Moreover, the Department objects to this Interrogatory because it appears to seek information regarding documents that are not authored by, kept in the regular course of business by, or issued under the authority of the Department. Furthermore, the Department objects that this Interrogatory appears to seek privileged information, including attorney-client communications and internal deliberations regarding state policy and proposed legislation. The Department also objects on the grounds that the Interrogatory is impossible to answer without disclosing confidential taxpayer information, and the Department and taxpayer(s) will be irreparably harmed if required to disclose this information to [the University].

(See Pet'r Br. ¶ 15, Ex. F at 272-73.) The Department provided a similar objection in response to Request for Production Number 17. (See ...


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