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American United Life Insurance Co. v. Indiana Department of State Revenue

Tax Court of Indiana

October 27, 2017

AMERICAN UNITED LIFE INSURANCE COMPANY, Petitioner,
v.
INDIANA DEPARTMENT OF STATE REVENUE, Respondent.

          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 GENERAL

          ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Martha Blood Wentworth, Judge

         American 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.

         FACTS AND PROCEDURAL HISTORY

         AUL is 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.)

         The 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[1] to the Texas Comptroller[2] 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.)

         AUL 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 1.)

         On 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.)

         One day 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)).)

         The Court conducted a hearing on the parties' cross-motions for summary judgment on August 4, 2017. Additional facts will be supplied as necessary.

         STANDARD OF REVIEW

         Summary 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 ...


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