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Judge orders revenue department to produce handwritten notes

February 2, 2015

Two pages of handwritten notes prepared by an Indiana Department of State Revenue employee must be turned over to an Illinois company challenging the denial of four refund claims, the Indiana Tax Court held Friday.

Brandenburg Industrial Service, which is based in Illinois, occasionally stores some of its equipment and consumable items in a Gary facility. After paying nearly $150,000 in sales/use tax in Indiana on those items in the 2006 and 2007 tax years, it sought refunds. At first, the IDSR granted the first and third claims and denied the second and fourth; later, it claimed the refunds were granted in error and that Brandenburg needed to repay them.

Brandenburg appealed in Brandenburg Industrial Service Co., an Illinois Corp. v. Ind. Dept. of State Revenue, 49T10-1206-TA-37, and now asks the Tax Court to intervene regarding one interrogatory and one request for documents that the revenue department has not completed. In the interrogatory, the company seeks the IDSR to identify each person it intends to call as a non-expert witness in the matter. Ultimately, the department identified its audit review supervisor, but no one else. In the request for production, Brandenburg seeks two pages of handwritten notes made by an employee that the department refuses to turn over. The department claims disclosure is unnecessary because they are not relevant to the subject matter of the case and even if they were, they are shielded from discovery pursuant to the deliberative privilege process and the work-product privilege.

Judge Martha Wentworth disagreed with the department regarding the notes, writing that they may contain information about its rationale for denying Brandenburg’s first and third refund claims. They could also possibly lead to admissible trial evidence with respect to Brandenburg’s allegation that proposed assessments were untimely issued.

She rejected the department’s claim that the deliberative process privilege protects the notes from discovery because that privilege does not exist in Indiana. They are also not protected by the work-product privilege because they are commonplace documents prepared by an employee during the ordinary course of the department’s general administrative duties.

Wentworth did deny Brandenburg’s request regarding the non-expert witness inquiry, finding the department adequately answered the interrogatory. Because the facts do not show that the department knew of any other witnesses when it answered the interrogatory, it is not required to do more at this time.

 

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