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Judge leaves attorneys on tax refund appeal

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Indiana Tax Court Judge Martha Wentworth has denied the State Department of Revenue’s attempt to disqualify the two attorneys representing a company in a refund dispute.

Attorneys Robert Romack and Dan Dunbar are president and vice president, respectively, of ROAR Consulting. Utilimaster hired ROAR Consulting to calculate the amount of natural gas it needed for use in its production process. The data was used to file for a refund of Indiana gross retail (sales) and use tax remitted on purchase of natural gas.

The Indiana Department of State Revenue granted a refund, but in a reduced amount. Utilimaster then filed an appeal with the Tax Court with Romack and Dunbar entering appearances as the company’s counsel of record. After the discovery deadline had passed, the Department of Revenue sought to reopen discovery, claiming it just learned that Romack and Dunbar admitted that ROAR had conducted the utility study. The department also filed for a motion to disqualify the two attorneys pursuant to Indiana Professional Conduct Rule 3.7 on the basis that they would be necessary witnesses at trial.

The study by ROAR does nothing more than provide the total square footage of Utilimaster’s facility and the portion of that square footage used in the manufacturing process, wrote Wentworth in Utilimaster Corporation v. Indiana Dept. of State Revenue, No. 71T10-1008-TA-43. This information is easily ascertainable, and employees of Utilimaster could testify about the company’s manufacturing processing and use of space.

In addition, the department could have discovered that ROAR was involved in the project before the discovery period ended, because when Utilimaster filed for its refund, it noted that it was with assistance from ROAR. The refund claim was also signed by Romack as ROAR’s president.

“The Department has invoked Professional Conduct Rule 3.7 in an attempt to conceal its failure to timely pursue discovery as well as to remove Utilimaster’s attorneys from the case, calling their professionalism into question. The Court will not countenance the Rule’s abuse as a procedural weapon by invading Utilimaster’s right to counsel of its choice,” she wrote.

 

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  1. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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