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ATTORNEYS FOR PETITIONER: STEPHEN H. PAUL BRENT A. AUBERRY FENTON D. STRICKLAND BAKER & DANIELS LLP Indianapolis, IN

ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER ATTORNEY GENERAL OF INDIANA JOHN D. SNETHEN MATTHEW R. NICHOLSON DEPUTY ATTORNEYS GENERAL Indianapolis, IN

IN THE INDIANA TAX COURT
BELTERRA RESORT INDIANA, LLC, Petitioner, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent. ) ) ) ) ) ) ) ) ) )

FILED
Feb 04 2009, 1:56 pm
of the supreme court, court of appeals and tax court

CLERK

Cause No. 49T10-0605-TA-49

ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT1 FOR PUBLICATION February 4, 2009 FISHER, J. Belterra Resort Indiana, LLC (Belterra) appeals the Indiana Department of State Revenue's (Department) proposed assessment of use tax for the 2000 tax year (year at

On May 11, 2007, Belterra filed a motion for summary judgment. On June 18, 2007, the Department filed a motion for judgment on the pleadings. In its response to the Department's motion for judgment on the pleadings, Belterra submitted a second affidavit of Chris Plant. (See Hr'g Tr. at 24-27.) The Court now ADMITS the Chris Plant affidavit into evidence and, because it is outside the pleadings, hereby converts the Department's motion for judgment on the pleadings into a motion for summary judgment. See Ind. Trial Rule 12(C).

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issue). Although the parties raise several issues in their motions, the dispositive issue in this case is whether Belterra's acquisition of its riverboat casino is subject to use tax. FACTS AND PROCEDURAL HISTORY Belterra is a Nevada corporation that owns and operates the Belterra Casino Resort, which consists of a hotel and riverboat casino (Miss Belterra), in Switzerland County, Indiana. Pinnacle Entertainment, Inc. (Pinnacle), a Delaware corporation, is Belterra's parent company. On September 10, 1999, Pinnacle contracted with Alabama Shipyard, Inc. to construct the Miss Belterra. On July 24, 2000, Alabama Shipyard conveyed title to and possession of the Miss Belterra at its dock in Mobile, Alabama, to Pinnacle. Pinnacle paid no Alabama sales tax on its acquisition of the Miss Belterra. On July 25, 2000, Pinnacle transferred title to the Miss Belterra to Belterra while the boat was in international waters in the Gulf of Mexico. In their written consent to transfer the Miss Belterra, Pinnacle's Board of Directors provided that the transfer of the Miss Belterra was a capital contribution for which no consideration was received. At the time it

transferred the Miss Belterra, Pinnacle owned a 97% interest in Belterra. In October of 2000, Belterra began operations of its hotel and casino. In August of 2001, Pinnacle acquired the remaining 3% interest in Belterra. In 2002, the Department conducted a sales and use tax audit of Belterra for the year at issue. On October 4, 2002, the Department issued a proposed use tax

assessment against Belterra on its acquisition of the Miss Belterra. Belterra timely protested the proposed assessment. On April 24, 2006, after conducting a hearing on the matter, the Department issued a letter of findings (LOF) denying Belterra's protest.

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Belterra filed this original tax appeal on May 23, 2006. The Court conducted a hearing in the matter on December 3, 2007. Additional facts will be supplied as needed. STANDARD OF REVIEW Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party demonstrates that it is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). Cross-motions for summary judgment do not alter this

standard. Williams v. Indiana Dep't of State Revenue, 742 N.E.2d 562, 563 (Ind. Tax Ct. 2001). DISCUSSION AND ANALYSIS Indiana's use tax is "[a]n excise tax . . . imposed on the storage, use, or consumption of tangible personal property in Indiana if the property was acquired in a retail transaction, regardless of the location of that transaction or of the retail merchant making that transaction."2 IND. CODE ANN.

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