The Indiana Tax Court ruled Nick Popovich should get $24,963 for successfully prosecuting his first motion to compel against the Indiana Department of Revenue, but ruled the Department of Revenue should get $5,175.25 in court fees for successfully defending Popovich’s second motion to compel.
There were two separate filings under the same cause number. In the first, Popovich filed a motion to compel the department to deliver documents to a deposition. The tax court found the department was justified in opposing the motion based on relevance, the deliberative process privilege and general bar against probing mental processes of administrative decision makers.
“Indeed, the Department’s written submissions and oral arguments reveal that it supported its positions regarding those three objections by citing both binding and persuasive authority as well as by providing its own reasoning,” Judge Martha Blood Wentworth wrote.
However, the court found the department was not justified in opposing Popovich’s discovery requests because the department relied on “blanket objections,” not giving specific reasons why Popovich’s requests should be denied. The department admitted some objections were broad, but thought it was common practice in discovery. The court said it was well established blanked objections would not be tolerated, and ruled in favor of Popovich.
However, the court thought Popovich’s request for $51,210.29 was excessive because it does not adequately account for the department’s partial success in defending against Popovich’s motion to compel and does not encompass the proper time frame for calculating expenses. The court awarded him $24,963.
However, when Popovich lost his motion to compel, he filed a second motion to compel, bringing on the second decision. His motion to compel was denied because he did not document his attempts to resolve the matter informally as required by Indiana Trial Rule 26F. The Department then filed a request for expenses to recover money after it defended itself on Popovich’s second motion to compel.
The tax court found Popovich was not justified in filing his second motion to compel. Popovich claimed that because the department was being obstinate in not granting his request, he had a right to file his second motion. Also, he said if he had “couched” his motion as a Trial Rule 45F, he would have won. He needed to document his attempts in his motion and he did not, and the court said “two wrongs do not make a right here.”
Also, Popovich did not question the reliability of the department’s figures nor does he say the amount was unreasonable.
The order in favor of Popovich and the order in favor of the Department of Revenue were issued in Nick Popovich v Indiana Department of State Revenue, 49T10-1010-TA-53.