ATTORNEYS FOR PETITIONER: RANDAL J. KALTENMARK ZIAADDIN
MOLLABASHY BARNES & THORNBURG LLP Indianapolis, IN
ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR. ATTORNEY
GENERAL OF INDIANA EVAN W. BARTEL, JESSICA REAGAN GASTINEAU,
WINSTON LIN DEPUTY ATTORNEYS GENERAL
ORDER ON PETITIONER'S MOTION TO STRIKE
Blood Wentworth, Judge Indiana Tax Court
RV Inc. moved to strike certain evidence designated by the
Department of State Revenue in response to Richardson's
motion for summary judgment, which the Court granted in an
order handed down concurrently with this order. See
generally Richardson's RV Inc. v. Ind. Dep't of State
Revenue, No. 49T10-1504-TA-00016, Slip. op., (Ind. Tax
Ct. August 1, 2017). The Court grants Richardson's'
Motion to Strike in part and denies it in part.
September 18, 2015, Richardson's filed a motion for
summary judgment in its appeal of the Department's final
determination assessing additional sales tax liabilities for
the 2010, 2011, and 2012 tax years. In its response, the
Department designated the following evidence that is the
subject of this Motion: 1) Kyle Richardson's deposition
and 2) written statements by three of Richardson's'
customers and specific references to them in David
Strom's affidavit. (See Resp't Br. Opp'n
Pet'r Mot. Summ. J. ("Resp't Br.") at 4-6
(citing Resp't Des'g Evid., Ex. R-7, Ex. R-4, Ex.
R-9, ¶ 11).) Richardson's moved to strike this
evidence claiming it was lacking foundation, irrelevant, and
inadmissible hearsay. (See Pet'r Reply Br. Supp.
Mot. Summ. J. ("Pet'r Reply Br.") at 5-7.) The
Court heard the parties' argument on
Richardson's' Motion during the summary judgment
hearing on April 7, 2016.
Court acts as a trial court when reviewing the
Department's assessments. See Ind. Code §
6-8.1-5-1(i) (2017). As a result, the Court is afforded broad
discretion in resolving motions to strike. See, e.g.,
Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind. 1999).
"Moreover, when ruling on a motion for summary judgment,
this Court will only consider properly designated evidence
that would be admissible at trial." Miller Pipeline
Corp. v. Indiana Dep't of State Revenue, 995 N.E.2d
733, 736 (Ind. Tax Ct. 2013) (citations omitted).
Kyle Richardson's Deposition
Department's designated evidence included the deposition
of Kyle Richardson, who had attested to Richardson's'
business practices. (See Resp't Br. at 4-6
(citing Resp't Des'g Evid., Ex. R-7).)
Richardson's moved to strike Kyle's deposition
arguing that the Department failed to lay a foundation
establishing that Kyle had personal knowledge of
Richardson's' business practices during the years at
issue. (See Pet'r Reply Br. at 5.) Moreover,
Richardson's argues that Kyle's deposition testimony
is irrelevant because he became a Richardson's employee
beginning in 2013, after the years at issue. (See
Pet'r Reply Br. at 5; Hr'g Tr. at 12-13.)
testified from his personal knowledge of
Richardson's' business practices in 2013. His
testimony, however, was related back to the years at issue
Vice President and Chief Financial Officer's testimony,
establishing that Richardson's had not changed its
business practices from the years at issue through the period
of Kyle's employment. (See Resp't Des'g
Evid., Ex. R-8 at 155.) See also Ind. Evidence Rule
104(b) (stating that "[w]hen the relevance of evidence
depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does
exist"). Accordingly, Kyle's deposition testimony is
relevant because it tended to make the facts of
Richardson's business practices more or less probable
than they would have been otherwise and because the facts
about these business practices are of consequence in
determining the outcome of the case. See Ind.
Evidence Rule 401 (explaining that "[e]vidence is
relevant if . . . it has any tendency to ...