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Tax Court rules in brewery's favor

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Ruling on an issue that previously has come before the Indiana Tax Court, Senior Judge Thomas Fisher has upheld that sales to Indiana customers who hired common carriers to pick up alcohol at an Ohio facility shouldn’t have been included in the sales factor of Miller Brewing Co.’s adjusted gross income tax and supplemental net income tax.

Miller appealed the Indiana Department of State Revenue’s denial of its claims for a refund of Indiana adjusted gross income tax and supplemental net income tax paid for the 1997-1999 tax years. In 2005, the Tax Court ordered the department to refund the AGIT paid by Miller for the 1994-1996 tax years.

At issue is whether for purposes of calculating its AGIT liability, Miller’s sales to Indiana customers are allocated to Indiana if those customers hired common carriers (carrier-pickup sales) to get their merchandise at Miller’s Ohio facility.

Miller didn’t allocate the income it got from the carrier-pickup sales to Indiana when calculating its AGIT liabilities. It paid the proposed assessments after the state revenue department audited its returns and decided Miller should have paid tax on that sales income. Miller filed for a refund, which the department denied.

In Miller Brewing Company v. Indiana Dept. of State Revenue, No. 49T10-0607-TA-69, Judge Fisher looked to Indiana Code 6-3-2-2(e)(1), which says “[s]ales of tangible personal property are in this state if[ ] the property is delivered or shipped to a purchaser, other than the United States government, within this state, regardless of the f.o.b. point or other conditions of the sale[.]” The department argued that the plain language of the statute mandates the application of the “destination rule,” which says that the income from sales should be apportioned to the purchaser’s state regardless of where the sale actually happens.

Miller, on the other hand, said the statute could be construed in two different ways, and argued that the department’s own regulation interpreting how the Legislature intended the statute to apply – 45 I.A.C. 3.1-1-53(7) – should control. It says “[s]ales are not ‘in this state’ if the purchaser picks up the goods at an out-of-state location and brings them back into Indiana in his own conveyance.”

Judge Fisher found the department’s interpretation of I.C. 6-3-2-2(e)(1) to be more persuasive than Uniform Division of Income for Tax Purposes Act, Indiana’s membership in the Multistate Tax Commission in 2007 after a 30-year absence, or how other states construe their statutory language, arguments the revenue department had advanced.

“In determining its Indiana AGIT liability for the years at issue, Miller did nothing more than follow Indiana law: pursuant to Indiana Code § 6-3-2-2(e)(1) and 45 I.A.C. 3.1-1-53(7), its carrier-pickup sales were not Indiana sales and therefore not allocable to Indiana,” he wrote, granting summary judgment for Miller and against the revenue department.

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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