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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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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