ATTORNEYS FOR PETITIONER: RANDAL J. KALTENMARK, ZIAADDIN
MOLLABASHY, BARNES & THORNBURG LLP, Indianapolis, IN.
ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR., ATTORNEY
GENERAL OF INDIANA, REBECCA L. MCCLAIN, DEPUTY ATTORNEY
GENERAL Indianapolis, IN.
H. DIES JEREMY M. FINGERET, ROSALIND J. LEWIS, JEFFERSON H.
READ, ZERBE MILLER FINGERET, FRANK & JADAV, P.C. Houston,
P. BURKE, HAMISH S. COHEN, ELINAM B. KPOTUFE, MATTINGLY BURKE
COHEN & BIEDERMAN LLP Indianapolis, IN.
ORDER ON RESPONDENT'S MOTION TO EXCLUDE THE
ALLIANTGROUP REPORT AND EXCLUDE OR LIMIT THE PROPOSED
TESTIMONY OF STACY LITTLE
Blood Wentworth, Judge.
matter concerns the Indiana Department of State Revenue's
"Motion to Exclude the AlliantGroup Report and Exclude
or Limit the Proposed Testimony of Stacy Little." Upon
review, the Court denies the Department's Motion in part
and grants it in part.
January 16, 2018, Tell City Boatworks, Inc. filed an original
tax appeal challenging the Department's final
determination that Tell City was not entitled to a qualified
research expense credit (the "ORE credit") or an
income tax refund for the 2010 tax year. Pursuant to the
Court's Case Management Plan, the parties were ordered to
disclose the names, addresses, and reports of any experts no
later than October 4, 2018. That deadline was later extended
to October 12, 2018.
point during the discovery process, Tell City produced its
"Research and Development Tax Credit Study"
("Report"). (See Resp't Br. Supp. Mot.
Exclude Alliant Group Report & Exclude or Limit Proposed
Test. Stacy Little ("Resp't Br.") at 3, Ex. B.)
The Report provided that Tell City had retained the
alliantgroup LP "to assist in analyzing, substantiating,
and documenting [Tell City's] various research and
experimental activities in accordance with the guidelines
provided" in Indiana Code § 6-3.1 -4 et
seq. and IRC §§ 41 and 174 for the 2010
tax year. (Resp't Br., Ex. B at 1.) In addition, Tell
City indicated that although it did not intend to call an
expert witness to testify, it may call Stacy Little, an
Associate Director with the alliantgroup, as a fact witness.
(See Resp't Br., Ex. A at Interrogs. 11, 12.)
Tell City explained that Ms. Little's testimony might
"address anything from project qualification to
quantification of the research credit to substantiation or
other items related to the claimed credit." (Resp't
Br., Ex. A at Interrog. 11.)
October of 2018, the Department sent a 30(B)(6) Notice of
Deposition and a subpoena duces tecum for the
production of certain documents to the alliantgroup.
(Resp't Br., Ex. C.) The parties subsequently agreed to
postpone that discovery "until... Tell City decided
whether it would call a representative of the alliantgroup as
a witness at trial." (Resp't Br. at 4.) At some
point thereafter, the Department discovered that Ms. Little
was both an alliantgroup employee and an attorney and that
all of Tell City's nonlocal counsel held managerial,
executive, or senior positions at the alliantgroup. (See,
e.g., Resp't Br. at 1-2, 7-8.) On January 29, 2019,
the Court held a Status Conference during which Tell City
confirmed for the first time that Ms. Little would be called
as a fact witness. (Resp't Br. at 4.)
February 13, 2019, the Department filed its Motion, claiming
the Report and testimony of Ms. Little should be excluded or
limited pursuant to Indiana Rules of Evidence 403, 602, 701,
704, 801, and 802. (See generally Resp't Br. at
9-22.) On March 5, 2019, after the matter was fully briefed,
the Court took the Department's Motion under advisement.
Additional facts will be supplied when necessary.
Department has presented several arguments claiming, for one
reason or another, that Indiana's rules of evidence bar
the admission of Ms. Little's testimony and the Report.
(See, e.g., Resp't Br. at 9-22.) It appears,
however, that the Department's primary claim is that Ms.
Little should not be permitted to testify as a fact witness
because the substance of both her testimony and the Report
are more akin to the opinions of experts than those of fact
witnesses. (See, e.g., Resp't Br. at 14-16.)
City, on the other hand, claims that the Department's
characterization of Ms. Little as "'an expert in lay
witness' clothing'" is unfounded because she
possesses none of the attributes of a retained expert.
(See Pet'r Resp. Opp'n Resp't Mot.
Exclude AlliantGroup Report & Exclude or Limit Proposed
Test. Stacy Little ("Pet'r Br.") at 2, 4-5,
13-14 (indicating that Ms. Little was directly involved in
conducting the alliantgroup's study of Tell City).) Tell
City further claims that the Department's concerns
regarding the Report are misplaced because it is nothing more
than a "summary of the actions taken ...