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Agency erred in taxing certain money

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The Department of State Revenue erred when it concluded certain money collected from customers of a small, rural telecommunications company were subject to Indiana's utility receipts tax, the Indiana Tax Court ruled Thursday.

In Enhanced Telecommunications Corp. v. Indiana Department of State Revenue, No. 49T10-0801-TA-1, Enhanced Telecommunications challenged the imposition of the URT on subscriber line charges (SLC) and federal universal service contribution recoveries (FUSCR) for the 2003, 2004, and 2005 tax years.

As a telecommunications company, Enhanced is subject to the URT and that tax is imposed on the company's entire taxable gross receipts, per Indiana Code. The Tax Court had to decide if the SLCs and FUSCRs are excluded from Enhanced's gross receipts pursuant to I.C. Section 6-2.3-3-4(b) because they are considered fees or surcharges.

Giving those terms their plain meaning because they are not defined by the legislature in the statute, Judge Thomas Fisher concluded the SLCs and FUSCRs are fees or surcharges separate from and in addition to Enhanced's basic monthly service charges, which aren't included in a taxpayer's gross receipts for purposes of the URT.

The Tax Court also determined the distributions Enhanced received through various federal and state subsidy programs aren't subject to the URT. The Department of State Revenue argued they would be subject to the tax because they are settlements pursuant to I.C. Section 6-2.3-3-3, but only legal settlements are considered subject to the tax. The distributions Enhanced received are settlements, but consistent with the definition of "payments, satisfaction, or final adjustments of its accounts," which aren't subject to the tax, wrote the judge.

The department's argument failed that Enhanced received the distributions as a means to recover costs associated with the use and maintenance of its telephone lines, and are directly related to the delivery of utility services because the departments' argument didn't consider I.C. Section 6-2.3-3-10 in its entirety.

"Here, the distributions clearly do not meet the terms of this statute: they are not receipts received for maintenance services provided to a consumer that are directly related to the utility services of that consumer," wrote Judge Fisher. "Rather, the distributions are governmental subsidies that are used to offset the general costs of overall line use and maintenance."

Judge Fisher rejected the department's other arguments as to why the SLCs and FUSCRs should be considered taxable under the URT because the department repeatedly improperly relied on a statutory snippet to supports its position.

The case is remanded to the department for action consistent with the stipulation between Enhanced and the department to the amount of Enhanced's URT overpayment for each of the taxable years at issue if it should prevail in the appeal.

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