ATTORNEY FOR PETITIONER: MARK J. LIECHTY AMMEEN VALENZUELA
ASSOCIATES LLP Indianapolis, IN
ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR. ATTORNEY
GENERAL OF INDIANA WINSTON LIN ZACHARY D. PRICE CHRISTOPHER
M. ANDERSON DEPUTY ATTORNEYS GENERAL Indianapolis, IN
ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY
blood Wentworth Judge
Property Group, LLC ("Crown") has challenged the
Indiana Department of State Revenue's final determination
that denied its request for a refund of the collection fees
and bank fees attributable to a withholding tax assessment
for the period ending on December 31, 2014 (the "period
at issue"). The matter is currently before the Court on
the parties' cross-motions for summary judgment. The
issue before the Court is whether the Department's
Proposed Assessment, Demand Notice, and Tax Warrant were
validly issued in conformance with the notice requirements
under Indiana Code §§ 6-8.1-5-1 and
6-8.1-8-2. The Court grants summary judgment to
AND PROCEDURAL HISTORY
following facts are not in dispute. During the period at
issue, Crown, a domestic limited liability company, was
located at 155 East Market Street, Suite 860, Indianapolis,
Indiana 46204 (the "Suite 860 address").
(Resp'ts' Mem. Supp. Mot. Summ. J.
("Resp'ts' Mem.") at 5 (citing Pet'r
Pet. Original Tax Appeal Final Determination Ind. Dep't
State Revenue ¶ 1), Ex. 1 at 14.) The company had no
employees and had not paid wages to any individual since the
third quarter of 2009. (Joint Stipulation of Facts ("Jt.
Stip.") ¶ 3.) As a result, Crown stopped filing
withholding tax returns in 2009; it did not, however, close
its withholding registration account with the Department
until several years later. (See Jt. Stip.
¶¶ 4, 15-16.)
March 23, 2015, the Department issued a Proposed Assessment
to Crown for over $2, 000 of withholding tax, interest, and
penalties for the period at issue. (Jt. Stip. ¶ 7, Ex.
A.) The Department sent the Proposed Assessment to the
address of Crown's former attorney-in-fact, Summit PM,
LLC ("Summit"), at 241 North Pennsylvania Street,
Indianapolis, Indiana 46204-2405 (the "Pennsylvania
Street address"). (See Jt. Stip. ¶ 7, Ex.
A; Resp'ts' Mem., Ex. 1 at 14, 16, 19, 23, Ex. 2, Ex.
3 at 10.) Summit forwarded the Proposed Assessment to Crown.
(Resp'ts' Mem., Ex. 1 at 30, Ex. 3 at 10.)
April 29, 2015, Crown's owner filed an Indiana Business
Tax Closure Request form ("Form BC-100") with the
Department, requesting that it close the company's
withholding registration account because it had no employees.
(See Jt. Stip. ¶ 8, Ex. B; Resp'ts'
Mem., Ex. 1 at 30.) The Department, however, did not process
the Form BC-100 because it lacked supporting documentation
and was not notarized. (See Jt. Stip. ¶ 20, Ex.
K at 1.) (See also Jt. Stip. ¶ 8, Ex. B.)
15, 2015, the Department converted the Proposed Assessment
into a Demand Notice that provided Crown had ten days to pay
over $2, 500 of withholding tax, interest, and penalties.
(See Jt. Stip. ¶ 10, Ex. C.) The Department
sent the Demand Notice to Crown at the Pennsylvania Street
address. (Jt. Stip. ¶ 10, Ex. C.)
13, 2015, after Crown failed to pay the tax liability, the
Department converted the Demand Notice into a Tax Warrant for
the full amount of the tax, interest, penalties, and
collection fees. (See Jt. Stip. ¶ 11, Ex. D.)
The Department sent the Tax Warrant to Crown at the
Pennsylvania Street address and filed it with the Clerk of
the Marion County Circuit Court. (See Jt. Stip.
¶ 11, Ex. D.) See also, e.g., Ind. Code §
6-8.1-8-2(c) (2019) (providing that "the department . .
. may not file [a tax] warrant with the circuit court clerk
of any county in which the person owns property until at
least twenty (20) days after the date the demand notice was
mailed to the taxpayer"). Two days later, the
Department's collection agent filed a duplicate tax
warrant with the Marion County Circuit Court Clerk for over
$3, 000 of withholding tax, interest, penalties, collection
fees, clerk's costs, and damages. (See Jt. Stip.
¶ 12, Ex. E.)
27, 2016, nearly a year after filing the duplicate tax
warrant, the Department's collection agent levied $1,
711.30 from Crown's bank account. (Jt. Stip. ¶ 13,
Ex. F.) As a result, the bank charged Crown a $100.00 fee.
(Jt. Stip. ¶ 14.)
October 13, 2017, Crown sent a letter to the Department
requesting a refund of "any assets and/or money that has
been seized" because its Form BC-100 shows that it
"was no longer required to be registered for
[withholding] tax as of December 31, 2009." (Pet'r
Br. Supp. Mot. Declaratory J., Pet'r Mot. Summ. J., &
Pet'r Pet. Permanent Inj. ("Pet'r Br."),
Pet'r Designation Evid. ("Pet'r Des'g
Evid."), Ex. A-3.) Then, on November 22, 2017,
Crown's owner filed another Form BC-100 with the
Department that was notarized. (Jt. Stip. ¶ 15, Ex. G.)
The following week, the Department closed Crown's
withholding registration account. (Jt. Stip. ¶ 16.)
December 20, 2017, Crown filed a claim for a refund of $1,
811.30 (i.e., the $100.00 bank fee plus the amount
levied). (See Jt. Stip. ¶ 17, Ex. H.) The
refund claim provided that Crown's mailing address was
155 East Market Street, Suite 750, Indianapolis, Indiana
46204 (the "Suite 750 address"), not the Suite 860
address. (See Jt. Stip. ¶ 17, Ex. H.) (See
also Resp'ts' Mem., Ex. 1 at 14 (providing that
in December 2017, Crown moved from Suite 860 to Suite 750).)
On January 30, 2018, the Department sent a letter to Crown at
the Suite 750 address, requesting that it submit additional
information so that the Department could complete the
processing of its refund claim. (Resp'ts' Mem., Ex.
4.) On February 20, 2018, after Crown failed to submit the
requested information, the Department denied Crown's
refund claim. (Jt. Stip. ¶ 19, Ex. J at 5.)
March 22, 2018, Crown filed a protest, claiming that its
refund claim was "wrongfully denied" because it
never received the Department's January 30 letter and the
Department did not have the authority to collect the
withholding tax in the first place. (See Jt. Stip.
¶ 19, Ex. J at 1-2.) On August 8, 2018, after holding a
hearing, the Department issued a Letter of Findings that
sustained Crown's protest in part and denied it in part.
(Jt. Stip. ¶ 20, Ex. K.) Specifically, in its final
determination the Department explained that although Crown
established it was entitled to a refund of the amount
attributable to the withholding tax assessment
(i.e., $1, 460.68), it failed to show it should
recoup the collection and bank fees because nothing indicated
"that either the Department or its agent failed to
follow the proper procedures in this matter."
(See Jt. Stip. ¶ 20, Ex. K at 4;
Resp'ts' Mem. Opp'n Pet'r Mot. Summ. J., Mot.
Declaratory J., & Pet. Permanent Inj.
("Resp'ts' Resp. Mem.") at 13 n.4.)
November 7, 2018, Crown initiated this original tax appeal.
On May 8, 2019, the parties filed their cross-motions for
summary judgment. On July 25, 2019, the Court held a hearing
on the parties' ...