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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. 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.

  2. 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.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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