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Tax court orders USUT refund

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The Indiana Department of State Revenue erred in concluding that a natural gas-fired power plant in Terre Haute was subject to the Utility Services Use Tax, ruled the Indiana Tax Court Wednesday.

The tax court released two opinions with the same cause number, Mirant Sugar Creek, LLC v. Indiana Department of State Revenue, No. 71T10-0803-TA-18, in which the court addressed three issues: the department’s motion to strike in its entirety the affidavit of Mirant Sugar Creek’s senior tax analyst and e-mails between her and the tax analyst with the State Revenue department; if Mirant obtained a ruling from the department in those e-mails providing the company wasn’t subject to the USUT; and whether Mirant’s purchases of natural gas in July 2006 were subject to the USUT.

Mirant purchases natural gas from an out-of-state vendor, which it uses to produce electricity that it sells to an out-of-state customer who resells the electricity to its customers.

In August 2006, the department and Mirant exchanged e-mails about whether the company was subject to the USUT. Mirant paid the tax in July 2006, but didn’t pay it any more because it believed it shouldn’t be subject to it. It filed a claim for a refund, which the department denied.

In a not-for-publication opinion, Tax Judge Thomas Fisher denied the department’s motion to strike the affidavit and e-mails. In the for publication opinion, Judge Fisher determined that the department didn’t rule that Mirant did not have to pay the USUT. The e-mails exchanged indicate that Mirant sought a generic opinion as to whether a generator’s natural gas purchases were subject to the tax. There is also no indication that the e-mails between the parties were published in the Indiana Register. When the department is to be bound by the ruling it issues, it must be published in the register.

Although Judge Fisher denied Mirant’s cross-motion for summary judgment on that issue, he ruled in favor of the company that its natural gas purchases in July 2006 weren’t subject to the USUT. The judge examined the part of the relevant statute that says the retail consumption of utility services in Indiana is exempt from the USUT if the “gross receipts from the transaction aren’t taxable under Indiana Code 6-2.3-3 and the utility services are consumed for the purposes for which the gross receipts were excluded from taxation.”

In 2006, the statute provided that gross receipts don’t include a wholesale sale to another generator or reseller of utility services; the statute was amended in 2008 to provide a sale of utility services is a wholesale sale if the utility services are natural gas and the buyer consumes the natural gas in the direct production of electricity to be sold by the buyer.

“The General Assembly’s 2008 amendment of the statute clarifies what transactions are to be considered wholesale sales with respect to the purchase of utility services for consumption,” he wrote. “It is for this reason, that the Court finds the General Assembly, through its 2008 amendment of the statute, simply clarified its original intent.”

Mirant was generating and selling electricity to others, and purchased natural gas in order to generate electricity to sell to another entity. As such, Mirant’s purchases of natural gas weren’t subject to the USUT pursuant to I.C. sections 6-2.3-3-5 and 6-2.3-5.5-4(2).

Judge Fisher ordered the department to refund the USUT taxes Mirant paid for July 2006.
 

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  1. Welcome to Hendricks County where local and state statutes (especially Indiana Class C misdemeanors) are given a higher consideration than Federal statues and active duty military call-ups.

  2. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  3. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  4. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  5. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

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