ATTORNEY FOR PETITIONER:                        ATTORNEYS FOR RESPONDENT:
MARK J. LIECHTY                                 CURTIS T. HILL, JR.
AMMEEN VALENZUELA                               ATTORNEY GENERAL OF INDIANA
ASSOCIATES LLP                                  WINSTON LIN
Indianapolis, IN                                ZACHARY D. PRICE
                                                CHRISTOPHER M. ANDERSON
                                                DEPUTY ATTORNEYS GENERAL
                                                Indianapolis, IN
                                                                              FILED
                                                                         Nov 13 2019, 12:16 pm

                               IN THE                                         CLERK
                                                                          Indiana Supreme Court

                         INDIANA TAX COURT                                   Court of Appeals
                                                                               and Tax Court




CROWN PROPERTY GROUP, LLC,                      )
                                                )
      Petitioner,                               )
                                                )
             v.                                 ) Cause No. 18T-TA-00027
                                                )
INDIANA DEPARTMENT OF STATE                     )
REVENUE, and ADAM J. KRUPP,                     )
                                                )
      Respondents.                              )


       ORDER ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT

                                  FOR PUBLICATION
                                  November 13, 2019

WENTWORTH, J.

      Crown Property Group, LLC (“Crown”) has challenged the Indiana Department of

State Revenue’s final determination that denied its request for a refund of the collection

fees and bank fees attributable to a withholding tax assessment for the period ending on

December 31, 2014 (the “period at issue”). The matter is currently before the Court on

the parties’ cross-motions for summary judgment. The issue before the Court is whether

the Department’s Proposed Assessment, Demand Notice, and Tax Warrant were validly
issued in conformance with the notice requirements under Indiana Code §§ 6-8.1-5-1 and

6-8.1-8-2.1 The Court grants summary judgment to Crown.

                          FACTS AND PROCEDURAL HISTORY

       The following facts are not in dispute.        During the period at issue, Crown, a

domestic limited liability company, was located at 155 East Market Street, Suite 860,

Indianapolis, Indiana 46204 (the “Suite 860 address”). (Resp’ts’ Mem. Supp. Mot. Summ.

J. (“Resp’ts’ Mem.”) at 5 (citing Pet’r Pet. Original Tax Appeal Final Determination Ind.

Dep’t State Revenue ¶ 1), Ex. 1 at 14.) The company had no employees and had not

paid wages to any individual since the third quarter of 2009. (Joint Stipulation of Facts

(“Jt. Stip.”) ¶ 3.) As a result, Crown stopped filing withholding tax returns in 2009; it did

not, however, close its withholding registration account with the Department until several

years later. (See Jt. Stip. ¶¶ 4, 15-16.)

       On March 23, 2015, the Department issued a Proposed Assessment to Crown for

over $2,000 of withholding tax, interest, and penalties for the period at issue. (Jt. Stip. ¶

7, Ex. A.) The Department sent the Proposed Assessment to the address of Crown’s

former attorney-in-fact, Summit PM, LLC (“Summit”), at 241 North Pennsylvania Street,

Indianapolis, Indiana 46204-2405 (the “Pennsylvania Street address”). (See Jt. Stip. ¶ 7,

Ex. A; Resp’ts’ Mem., Ex. 1 at 14, 16, 19, 23, Ex. 2, Ex. 3 at 10.) Summit forwarded the

Proposed Assessment to Crown. (Resp’ts’ Mem., Ex. 1 at 30, Ex. 3 at 10.)

       On April 29, 2015, Crown’s owner filed an Indiana Business Tax Closure Request

form (“Form BC-100”) with the Department, requesting that it close the company’s



1
  The parties have designated evidence that contains confidential information. Accordingly, the
Court will provide only that information necessary for the reader to understand its disposition of
the issue presented. See generally Ind. Administrative Rule 9.
                                                2
withholding registration account because it had no employees. (See Jt. Stip. ¶ 8, Ex. B;

Resp’ts’ Mem., Ex. 1 at 30.) The Department, however, did not process the Form BC-

100 because it lacked supporting documentation and was not notarized. (See Jt. Stip. ¶

20, Ex. K at 1.) (See also Jt. Stip. ¶ 8, Ex. B.)

       On June 15, 2015, the Department converted the Proposed Assessment into a

Demand Notice that provided Crown had ten days to pay over $2,500 of withholding tax,

interest, and penalties. (See Jt. Stip. ¶ 10, Ex. C.) The Department sent the Demand

Notice to Crown at the Pennsylvania Street address. (Jt. Stip. ¶ 10, Ex. C.)

       On July 13, 2015, after Crown failed to pay the tax liability, the Department

converted the Demand Notice into a Tax Warrant for the full amount of the tax, interest,

penalties, and collection fees. (See Jt. Stip. ¶ 11, Ex. D.) The Department sent the Tax

Warrant to Crown at the Pennsylvania Street address and filed it with the Clerk of the

Marion County Circuit Court. (See Jt. Stip. ¶ 11, Ex. D.) See also, e.g., IND. CODE § 6-

8.1-8-2(c) (2019) (providing that “the department . . . may not file [a tax] warrant with the

circuit court clerk of any county in which the person owns property until at least twenty

(20) days after the date the demand notice was mailed to the taxpayer”). Two days later,

the Department’s collection agent filed a duplicate tax warrant with the Marion County

Circuit Court Clerk for over $3,000 of withholding tax, interest, penalties, collection fees,

clerk’s costs, and damages. (See Jt. Stip. ¶ 12, Ex. E.)

       On June 27, 2016, nearly a year after filing the duplicate tax warrant, the

Department’s collection agent levied $1,711.30 from Crown’s bank account. (Jt. Stip. ¶

13, Ex. F.) As a result, the bank charged Crown a $100.00 fee. (Jt. Stip. ¶ 14.)

       On October 13, 2017, Crown sent a letter to the Department requesting a refund



                                              3
of “any assets and/or money that has been seized” because its Form BC-100 shows that

it “was no longer required to be registered for [withholding] tax as of December 31, 2009.”

(Pet’r Br. Supp. Mot. Declaratory J., Pet’r Mot. Summ. J., & Pet’r Pet. Permanent Inj.

(“Pet’r Br.”), Pet’r Designation Evid. (“Pet’r Des’g Evid.”), Ex. A-3.) Then, on November

22, 2017, Crown’s owner filed another Form BC-100 with the Department that was

notarized. (Jt. Stip. ¶ 15, Ex. G.) The following week, the Department closed Crown’s

withholding registration account. (Jt. Stip. ¶ 16.)

       On December 20, 2017, Crown filed a claim for a refund of $1,811.30 (i.e., the

$100.00 bank fee plus the amount levied). (See Jt. Stip. ¶ 17, Ex. H.) The refund claim

provided that Crown’s mailing address was 155 East Market Street, Suite 750,

Indianapolis, Indiana 46204 (the “Suite 750 address”), not the Suite 860 address. (See

Jt. Stip. ¶ 17, Ex. H.) (See also Resp’ts’ Mem., Ex. 1 at 14 (providing that in December

2017, Crown moved from Suite 860 to Suite 750).) On January 30, 2018, the Department

sent a letter to Crown at the Suite 750 address, requesting that it submit additional

information so that the Department could complete the processing of its refund claim.

(Resp’ts’ Mem., Ex. 4.) On February 20, 2018, after Crown failed to submit the requested

information, the Department denied Crown’s refund claim. (Jt. Stip. ¶ 19, Ex. J at 5.)

       On March 22, 2018, Crown filed a protest, claiming that its refund claim was

“wrongfully denied” because it never received the Department’s January 30 letter and the

Department did not have the authority to collect the withholding tax in the first place. (See

Jt. Stip. ¶ 19, Ex. J at 1-2.) On August 8, 2018, after holding a hearing, the Department

issued a Letter of Findings that sustained Crown’s protest in part and denied it in part.

(Jt. Stip. ¶ 20, Ex. K.) Specifically, in its final determination the Department explained



                                             4
that although Crown established it was entitled to a refund of the amount attributable to

the withholding tax assessment (i.e., $1,460.68), it failed to show it should recoup the

collection and bank fees because nothing indicated “that either the Department or its

agent failed to follow the proper procedures in this matter.” (See Jt. Stip. ¶ 20, Ex. K at

4; Resp’ts’ Mem. Opp’n Pet’r Mot. Summ. J., Mot. Declaratory J., & Pet. Permanent Inj.

(“Resp’ts’ Resp. Mem.”) at 13 n.4.)

       On November 7, 2018, Crown initiated this original tax appeal. On May 8, 2019,

the parties filed their cross-motions for summary judgment. On July 25, 2019, the Court

held a hearing on the parties’ cross-motions.          Additional facts will be supplied as

necessary.

                                 STANDARD OF REVIEW

       Summary judgment is proper only when the designated evidence demonstrates

that no genuine issues of material fact2 exist and the moving party is entitled to judgment

as a matter of law. Ind. Trial Rule 56(C). When reviewing a motion for summary

judgment, the Court will construe all properly asserted facts and reasonable inferences

drawn therefrom in favor of the non-moving party. See Scott Oil Co. v. Indiana Dep’t of

State Revenue, 584 N.E.2d 1127, 1128-29 (Ind. Tax Ct. 1992).               Cross-motions for

summary judgment do not alter this standard. Horseshoe Hammond, LLC v. Indiana

Dep’t of State Revenue, 865 N.E.2d 725, 727 (Ind. Tax Ct. 2007), review denied.

                                             LAW

       During the period at issue, if the Department reasonably believed that a person


2
  A genuine issue of material fact exists when a fact concerning an issue that would dispose of
the case is in dispute or when the undisputed facts support conflicting inferences regarding the
resolution of an issue. Miller Pipeline Corp. v. Indiana Dep’t of State Revenue, 995 N.E.2d 733,
734 n.1 (Ind. Tax Ct. 2013).
                                               5
had not reported the proper amount of withholding tax due, it was required to make a

proposed assessment of the amount of the unpaid tax based on the best information

available to it. See IND. CODE § 6-8.1-5-1(b) (2014). “The amount of the assessment

[was] considered [to be] a tax payment not made by the due date and [was] subject to IC

6-8.1-10 concerning the imposition of penalties and interest.” I.C. § 6-8.1-5-1(b). The

Department was required to send “the person notice of the proposed assessment through

the United States mail” that stated he had sixty (60) days from the date the notice was

mailed to pay the assessment or file a written protest. I.C. § 6-8.1-5-1(b), (d).

       If the person failed to pay the tax or file a written protest within the statutorily

prescribed period, the Department was required to “issue a demand notice for the

payment of the tax and any interest or penalties accrued on the tax[.]” IND. CODE § 6-8.1-

8-2(a) (2014) (amended 2016).        The person then had ten days from the date the

Department mailed the demand notice to either pay the amount demanded or show

reasonable cause for not paying. I.C. § 6-8.1-8-2(a).

       If the person did not pay the amount demanded or show reasonable cause for not

paying within the prescribed period, the Department could issue a tax warrant for, among

other things, the amount of the tax, clerk’s costs, and any collection fees authorized under

Indiana Code § 6-8.1-8-4(b). I.C. § 6-8.1-8-2(b). The collection fees and clerk’s costs

attached upon the issuance of the tax warrant. See I.C. § 6-8.1-8-2(b). The Department

could not, however, “file the [tax] warrant with the circuit court clerk of any county in which

the person own[ed] property until at least twenty (20) days after the date the demand

notice was mailed to the taxpayer.” I.C. § 6-8.1-8-2(c).

       The Department was authorized to contract with a collection agency for the



                                              6
collection of the delinquent tax plus, among other things, collection fees when “(1) an

unsatisfied warrant ha[d] been issued by the [D]epartment; or (2) [it] received a tax

payment by check or other instrument drawn upon a financial institution, and the check

or other instrument was not honored by [the] institution.” IND. CODE § 6-8.1-8-4(a) (2014).

The collection fees became due and owing by the taxpayer when the amended tax

warrant that added the collection fees was filed with the circuit court clerk. I.C. § 6-8.1-8-

4(c).

                                           ANALYSIS

        On appeal, Crown maintains that as a matter of law it is entitled to a refund of

$1,811.30, the full amount attributable to the Department’s withholding tax assessment

for the period at issue, because the Department failed to provide it with adequate notice

of its purported withholding tax liability as required by statute. (See, e.g., Pet’r Br. at 10-

14.) Crown also seeks $5,443.90 in damages in addition to attorney’s fees pursuant to

Indiana Code § 34-52-2-2.3 (See Pet’r Mot. Summ. J.; Hr’g Tr. at 75-76.)

                                           I. Notice

        Crown claims it is entitled to a refund of $1,811.30, not $1,460.68, because when

the Department issued its Proposed Assessment, Demand Notice, and Tax Warrant

(collectively, the “Withholding Notifications”) it failed to comply with the notice

requirements of both Indiana Code §§ 6-8.1-5-1 and 6-8.1-8-2. (See Pet’r Br. at 10-14;



3
  Crown also claims that it is entitled to a full refund and attorney’s fees because the Department
converted its assets and violated several provisions of the U.S. and Indiana Constitutions. (See,
e.g., Pet’r Br. Supp. Mot. Declaratory J., Pet’r Mot. Summ. J., & Pet’r Pet. Permanent Inj. (“Pet’r
Br.”) at 6-10.) The Court, however, does not reach these additional claims because this case is
resolved on other grounds. See, e.g., Bethlehem Steel Corp. v. Indiana Dep’t of State Revenue,
597 N.E.2d 1327, 1330 (Ind. Tax Ct. 1992), aff’d by 639 N.E.2d 264 (Ind. 1994) (providing that
when cases are resolved on statutory grounds, the Court need not address constitutional claims).
                                                7
Pet’r Resp. Opp’n Resp’ts’ Mot. Summ. J. (“Pet’r Resp. Br.”) at 4-6; Hr’g Tr. at 77-78.)

The Department, on the other hand, claims it satisfied all of the statutory notice

requirements because Crown received the Withholding Notifications after the Department

mailed them to Crown at the “best address it had on file.” (See Resp’ts’ Resp. Mem. at

10-14; Resp’ts’ Reply Supp. Summ. J. (“Resp’ts’ Reply Mem.”) at 5-8; Hr’g Tr. at 51-54.)

Alternatively, the Department contends that Crown did not actually need notice of the

Withholding Notifications because it had an opportunity to dispute the tax at the

administrative level. (See Resp’ts’ Mem. at 12; Resp’ts’ Reply Mem. at 8; Hr’g Tr. at 53-

54.)   In addition, the Department contends that Crown should be estopped from

contesting the validity of the Tax Warrant pursuant to the doctrine of res judicata.4 (See

Resp’ts’ Mem. at 13-14; Hr’g Tr. at 53-54.)

       At the outset, all of the parties’ arguments indicate that the crux of the issue before

the Court is whether the Department’s Withholding Notifications are valid because they

were issued in conformance with the notice requirements under Indiana Code §§ 6-8.1-

5-1 and 6-8.1-8-2. Indeed, if the Department’s Withholding Notifications are valid, then

its final determination is correct, and the Department is entitled to judgment as a matter

of law. If, however, the Department’s Withholding Notifications are invalid, then Crown is

entitled to a full refund because all of the fees arising from the Department taking the

Demand Notice to the Tax Warrant stage are likewise invalid. See, e.g., Garwood v.

Indiana Dep’t of State Revenue, 953 N.E.2d 682, 690 (Ind. Tax Ct. 2011) (holding the



4
   During the hearing, the parties also questioned whether the Department had a “reasonable
belief” that Crown had failed to remit the proper amount of withholding tax for the period at issue.
(See, e.g., Hr’g Tr. at 10-13, 34-39.) Nonetheless, the Court will not address this issue on appeal
because the parties’ written briefs neither raised nor specifically designated evidence on this
issue. (See generally, e.g., Pet’r Br.; Resp’ts’ Mem. Supp. Mot. Summ. J.)
                                                 8
Department’s jeopardy assessments were void when it failed to comply with the statutory

requirements for issuing the jeopardy assessments), review denied.

       During the period at issue, Indiana Code § 6-8.1-5-1(b) provided that “[t]he

department shall send [a] person notice of [a] proposed assessment through the United

States mail.” I.C. § 6-8.1-5-1(b). Indiana Code § 6-8.1-8-2 required the demand notice

issued to a taxpayer for the payment of a delinquent tax must state “the person has ten

(10) days from the date the department mails the notice to either pay the amount

demanded or show reasonable cause for not paying the amount demanded.” I.C. § 6-

8.1-8-2(a)(1). The statute further provided that “[w]hen the department issues a tax

warrant, it may not file the warrant with the circuit court clerk of any county in which the

person own[ed] property until at least twenty (20) days after the demand notice was

mailed to the taxpayer.” I.C. § 6-8.1-8-2(c).

       When statutory language is clear and unambiguous, it is the duty of this Court to

give effect to the plain meaning of the statute. See Indiana Dep’t of State Revenue v.

Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994) (stating that unambiguous statutes

must be read to mean what they plainly express, and their plain meanings may not be

enlarged or restricted); Indiana Dep’t of State Revenue v. Keenan, 42 N.E.3d 1056, 1060

(Ind. Tax Ct. 2015) (providing that a clear and unambiguous statute should be understood

in its plain, ordinary, and usual sense). The language employed by the Legislature in

Indiana Code §§ 6-8.1-5-1(b) and 6-8.1-8-2(a)(1) and (c) is clear: while the Department

was required to provide Crown with notice of the Withholding Notifications through the

U.S. mail, it did not need to provide Crown with actual notice to satisfy the statutory notice

requirements. See I.C. §§ 6-8.1-5-1(b), -8.1-8-2(a)(1), (c) (requiring only that notice be



                                                9
mailed, not received).

       These statutes do not, however, prescribe where the Department is to mail the

notices or whether a taxpayer has a duty to inform the Department of its current mailing

address. But see, e.g., Reeder Assocs. II v. Chicago Belle, LTD, 778 N.E.2d 828, 831-

32 (Ind. Ct. App. 2002) (explaining that Indiana’s tax sale statutes specify where county

auditors are to send notice of tax sales and require property owners to provide their

correct mailing addresses to county auditors), trans. denied. Accordingly, the question is

whether the Department’s mailing of Crown’s Withholding Notifications to the

Pennsylvania Street address, under these specific facts, comported with basic principles

of fairness and justice, i.e., was the mailing reasonably calculated to apprise Crown of the

Withholding Notifications. See, e.g., Mullane v. Central Hanover Bank & Tr. Co., 339 U.S.

306, 314 (1950) (providing that an elementary and fundamental requirement of due

process “is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of [an] action and afford them an opportunity to present

their objections”) (citations omitted).

       The Department maintains that it complied with all applicable statutory notice

requirements because the facts show that it provided Crown with “notice and multiple

opportunities to [] avoid [the] bank levy” by sending the Withholding Notifications to the

best address in its files, i.e., the Pennsylvania Street address. (See Resp’ts’ Mem. at 12;

Resp’ts’ Resp. Mem. at 12, 14.) The Department explains that because taxpayers may

authorize any number of individuals to receive their tax information, it should be able to

rely on the contact information in its possession as well as any updated address

information provided to the Department by taxpayers themselves. (See Resp’ts’ Reply



                                            10
Mem. at 6-7.) Accordingly, the Department claims that it was reasonable to send the

Withholding Notifications to Crown at its de facto attorney’s Pennsylvania Street address

because Crown’s power of attorney form was “the most recent filing in its possession”

and Crown “never provided the Department with updated contact information” after it

terminated its relationship with Summit in 2013. (See Resp’ts’ Reply Mem. at 7.)

       The designated evidence does not show, however, that the Department relied on

“the most recent filing its possession” for purposes of complying with the statutory notice

requirements of Indiana Code §§ 6-8.1-5-1(a) and 6-8.1-8-2(a)(1) and (c). Indeed, the

power of attorney form authorized Summit to receive Crown’s confidential tax information

for the 2006 through 2009 tax period only. (Resp’ts’ Mem., Ex. 2.) Moreover, it listed

Crown’s address as the Suite 860 address and Summit’s address as 111 Monument

Circle, Suite 4750, Indianapolis, Indiana 46204. (Resp’ts’ Mem., Ex. 2.)

       With respect to the Pennsylvania Street address, the Department maintains it was

proper to send the Withholding Notifications to that address because Summit handled

Crown’s tax issues until the 2013 tax year, and it was reasonable to conclude that Summit

provided the Department with that address. (See Resp’ts’ Mem. at 6 n.2, Ex. 1 at 19, Ex.

3 at 9.) (But see Resp’ts’ Mem. at 6 n.2; Resp’ts’ Reply Mem. at 7 n.2 (providing that the

evidence does not demonstrate how the Department obtained the Pennsylvania Street

address or why it sent the documents to that address); Pet’r Br. at 11-12 (citing Pet’r

Des’g Evid., Ex. A-4 at Interrog. No. 24 (recognizing that the Department was not able to

identify the particular source of the Pennsylvania Street address)).)       Although it is

reasonable to assume that Summit provided its new address to the Department, it does

not follow that the Department complied with the statutory notice requirements by sending



                                            11
the Withholding Notifications to the Pennsylvania Street address. Even though Summit

continued to serve as Crown’s property manager until 2013, the designated evidence

does not establish that Summit was authorized to represent Crown in tax matters beyond

the 2006 through 2009 tax years.        (See Hr’g Tr. at 44-45 (acknowledging that the

Department did not have another power of attorney form that extended beyond 2009).)

Furthermore, the Department has not identified any legal authority that allowed it to satisfy

the statutory notice requirements by sending the Withholding Notifications to an entity

that was not authorized to receive them. But see, e.g., IND. CODE § 6-8.1-7-1(a) (2019)

(prohibiting the Department from disclosing a taxpayer’s confidential tax information to

others unless certain conditions are met).

       The Department urges the Court to overlook these facts and hold Crown

responsible for the fees associated with an erroneous withholding assessment because

1) when Crown stopped filing its withholding tax returns in 2009, it failed to advise the

Department that it had no employees or income; 2) Crown failed to inform the Department

that as of 2013 Summit was no longer its attorney-in-fact; and 3) even though Crown had

actual notice of the Withholding Notifications, it simply filed a “defective” Form BC-100

rather than paying the withholding tax or filing a protest. (See Resp’ts’ Mem. at 10-11;

see also Hr’g Tr. at 44 (arguing that because Crown knew Summit represented it in tax

matters beyond the 2009 tax year, the power of attorney form restrictions did not matter).)

The Department’s claims are unpersuasive for several reasons.

       First, the designated evidence indisputably shows that the power of attorney form

contained Crown’s correct mailing address and limited Summit’s representation of Crown

to the 2006 through 2009 tax years. (See Resp’ts’ Mem., Ex. 2.) (See also Resp’ts’



                                             12
Mem., Ex. 1 at 14 (providing that Crown was located at the Suite 860 address from 2009

through December 2017).) Therefore, for purposes of the notice provisions under Indiana

Code §§ 6-8.1-5-1(b) and 6-8.1-8-2(a)(1) and (c), Crown did not need to update its mailing

address with the Department or advise the Department that it had no employees in 2009

or that Summit’s tenure as its property manager concluded in 2013.            Instead, the

Department simply needed to review its own records. See, e.g., Reeder, 778 N.E.2d at

834-35 (providing that for purposes of providing adequate notice under the tax sale

statutes, a “county auditor is deemed to be aware of the contents of the records

maintained in its office” and thus should have been cognizant of the discrepancy in the

mailing address it used).

      Second, even if actual notice were required, which it is not, the designated

evidence does not reasonably indicate that Crown received actual notice of the Demand

Notice or the Tax Warrant. Specifically, when Crown’s owner received the Proposed

Assessment from Summit, he promptly filed the first BC-100 with the Department, which

contained Crown’s appropriate mailing address, in an attempt to halt the entire

assessment process. (See Resp’ts’ Mem., Ex. 1 at 30, Ex. 2 at 31 (providing that Crown’s

owner believed that his filing of the first Form BC-100 had resolved the matter).) Although

the Department’s Letter of Findings states that it returned the rejected Form BC-100 to

Crown, the Department has not designated any evidence to support that statement or

specified to what address the Form BC-100 was mailed. (See Jt. Stip. ¶ 20, Ex. K at 1.)

Therefore, the only reasonable inference to be drawn from the facts is that Crown did not

receive actual notice of the rejected Form BC-100, the Demand Notice, or the Tax

Warrant because if it had, it would have attempted to follow-up with the Department in



                                            13
some manner, just as it did when it received the Proposed Assessment from Summit.

       Third, the designated evidence does not indicate exactly what prompted the

Department to select one mailing address over another. For instance, while it is clear

that Summit was not authorized to represent Crown for the 2014 tax year and the power

of attorney form and Crown’s first Form BC-100 contained its correct mailing address, the

Department did not send any of the Withholding Notifications to the Suite 860 address.

Instead, the Department used the Pennsylvania Street address, which was acquired from

an unknown source in an unspecified manner and maintained in an unidentified location.

Furthermore, although the Department explained that taxpayers could update their

contact information by telephone, (see Hr’g Tr. at 50), it could not explain why Crown’s

first Form BC-100 could not have served that very purpose given that neither method of

communication would be notarized.         This is especially troublesome because the

designated evidence shows that after the Department received Crown’s refund claim

listing the Suite 760 address, the Department updated its records and sent all of its future

correspondences to Crown at that address.

       Finally, the Department has not designated any evidence or provided persuasive

argument to explain why it was overly burdensome to send the Withholding Notifications

to Crown’s address on the power of attorney form, a form that the Department both

maintains in its records and requires taxpayers to file before disclosing their confidential

tax information to other entities. Consequently, the undisputed facts in this case do not

establish that the Department comported with basic principles of fairness and justice by

providing notice that was reasonably calculated to apprise Crown of the Withholding

Notifications or that it provided Crown with an opportunity to present its objections to the



                                            14
Department at a meaningful time. Therefore, the Withholding Notifications are void

because they did not meet the requirements of Indiana Code §§ 6-8.1-5-1(b) and 6-8.1-

8-2(a)(1) and (c).

                           II. Damages and Attorney’s Fees

       In its motion for summary judgment, Crown asks for an award of damages in the

amount of $5,433.90; it did not request damages in any of its other filings. (See generally

Pet’r Mot. Summ. J.; Pet’r Br.; Pet’r Reply Supp. Pet’r Mot. Summ. J.; Pet’r Resp. Br.) In

addition, near the end of the summary judgment hearing, Crown stated, for the first time,

that it may be entitled to an award of attorney’s fees under Indiana Code § 34-52-2-2.

(Hr’g Tr. at 75-76 (admitting that it had not cited this statute as a basis for an award of

attorney’s fees in its written briefs).) Crown’s failure to raise the issue of attorney’s fees

under Indiana Code § 34-52-2-2 in a timely manner, to designate evidence in support of

its request, and to develop sufficient argument regarding this issue is fatal to its claim.

See, e.g., Scopelite v. Indiana Dep’t of Local Gov’t Fin., 939 N.E.2d 1138, 1145 (Ind. Tax

Ct. 2010) (indicating that the Court will not resolve an issue when its proponent fails to

provide sufficient legal analysis); Spudich v. N. Ind. Pub. Serv. Co., 745 N.E.2d 281, 287-

89 (Ind. Ct. App. 2001) (holding that new arguments may be raised in a reply brief on

summary judgment), trans. denied. Nonetheless, the Court orders the Department to

refund to Crown an amount equal to its filing fee as damages.

                                      CONCLUSION

       For the aforementioned reasons, the Court GRANTS Crown’s Motion for Summary

Judgment and DENIES the Department’s Motion for Summary Judgment. Crown is

entitled therefore to a refund of its filing fee plus $1,811.30, the entire amount levied by



                                             15
the Department’s collection agent that comprises the withholding tax, the collection fee,

and the bank fee.5

       SO ORDERED this 13th day of November, 2019.


                                                     Martha Blood Wentworth
                                                     Judge, Indiana Tax Court




DISTRIBUTION:        Mark J. Liechty, Winston Lin, Zachary D. Price, Christopher M.
Anderson



5
  The Court reminds the parties of the applicable provisions for the payment of interest in Indiana
Code § 6-8.1-9-2 not only when refunding Crown its $1,811.30 as determined this day, but also
when refunding the $1,460.68 that the Department determined on August 8, 2018, was an
erroneously exacted withholding tax, but it had not yet been refunded to Crown on the summary
judgment hearing date of July 25, 2019. (See Hr’g Tr. at 56.)
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