ATTORNEYS FOR PETITIONER: NATHAN J. HAGERMAN TAMMARA D.
PORTER TAFT, STETTINIUS, & HOLLISTER LLP
ATTORNEYS FOR RESPONDENT: CURTIS T. HILL ATTORNEY GENERAL OF
INDIANA WINSTON LIN PARVINDER K. NIJJAR DEPUTY ATTORNEYS
ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY
Blood Wentworth, Judge
United Life Insurance Company ("AUL") has appealed
the Indiana Department of State Revenue's partial denial
of its claim for refund of Indiana use tax paid for the 2012,
2013, and 2014 tax years. AUL's appeal is currently
before the Court on the parties' cross-motions for
summary judgment. In resolving those cross-motions, the Court
finds in favor of AUL.
AND PROCEDURAL HISTORY
an Indiana insurance company with its principal place of
business in Indianapolis, Indiana. (Pet'r Des'g
Evid., Ex. A ¶ 1.) AUL purchased computer software from
out-of-state vendors for use in its Indiana operations.
(Pet'r Des'g Evid., Ex. C at 1-2.)
software was delivered to AUL and first loaded on its servers
located in Texas. (Pet'r Des'g Evid., Ex. C at 2.)
AUL remitted use taxes to the Texas Comptroller on the purchase
price of the computer software at the rate of 8.25%.
(See Pet'r Des'g Evid., Ex. A ¶¶
14, 39-40, 45, Ex. C at 2, Ex. D at 1.) The 8.25% tax rate
represented 6.25% for state-level use tax and the remaining
2% for local-level use taxes. (Pet'r Des'g Evid., Ex.
D at 1.) Because it used the software in Indiana, AUL also
paid Indiana use tax on the purchase price of the software at
the rate of 7%. (Pet'r Des'g Evid., Ex. A ¶ 15,
Ex. D at 1.)
filed a claim for refund of the Indiana use tax it paid for
the periods ending December 21, 2012 through September 30,
2014, claiming it was entitled to a credit against the full
amount of Indiana use tax paid because it paid Texas use tax
on the same purchase. (See Pet'r Des'g
Evid., Ex. A ¶¶ 4-5, 14-16, Ex. C at 1.) On
February 26, 2015, the Department denied the refund claim,
which AUL protested. (Pet'r Des'g Evid., Ex. A
¶¶ 17-18.) On December 9, 2015, after conducting a
hearing, the Department sustained AUL's protest, granting
the refund pending verification of the amount of Texas tax
paid. (Pet'r Des'g Evid., Ex. A ¶¶ 19-20.)
On August 24, 2016, the Department sent AUL a letter
indicating that it would issue a credit equal to the amount
AUL paid to Texas for the 6.25% state-level tax, but not for
the 2% local-level tax. (Resp't Des'g Evid., Ex. A,
Confd'l Ex. 1 at 1; Pet'r Des'g Evid., Ex. D at
October 3, 2016, AUL filed its original tax appeal. AUL moved
for summary judgment on April 17, 2017, and on June 14, 2017,
the Department filed its response and cross-motion for
summary judgment. (Pet'r Mot. Summ. J. at 1; Resp't
Resp. Pet'r Mot. Summ. J. & Cross Mot. Summ. J.
("Resp't Br.") at 1.)
before the summary judgment hearing, the Department filed a
"Motion to Designate [the] Affidavit of Ray
Langenberg" ("Motion to Designate").
(See Resp't Mot. Des'g Aff. Ray Langenberg
("Resp't Mot. Des'g") at 1.) The Department
explained that Langenberg was Special Counsel for Tax
Litigation for the Texas Comptroller of Public Accounts and
that his averments would clarify the Comptroller's
interpretation and application of Texas use tax. (Resp't
Mot. Des'g at 1.) AUL objected to the Department's
Motion to Designate and moved to strike the proffered
affidavit as untimely filed and unduly prejudicial.
(See Objection Resp't Mot. Des'g Aff. Ray
Langenberg & Pet'r Mot. Strike at 2-3 (citing Ind.
Trial Rule 56(C), (E), and (I)).)
Court conducted a hearing on the parties' cross-motions
for summary judgment on August 4, 2017. Additional facts will
be supplied as necessary.
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Ind. Trial Rule 56(C). Cross-motions for
summary judgment do not alter this standard. Horseshoe
Hammond, LLC v. Indiana Dep't of State Revenue, 865
N.E.2d 725, 727 (Ind. Tax Ct. 2007), review denied.
"[W]hen ruling on a motion for summary judgment, this
Court will only consider properly designated evidence that
would be admissible at ...