Preview:

ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT: FRANCINA A. DLOUHY GREGORY F. ZOELLER J. DANIEL OGREN INDIANA ATTORNEY GENERAL FENTON D. STRICKLAND JOHN D. SNETHEN FAEGRE BAKER DANIELS LLP DEPUTY ATTORNEY GENERAL Indianapolis, IN Indianapolis, IN _____________________________________________________________________

IN THE INDIANA TAX COURT
FRESENIUS USA MARKETING, INC.,

FILED
of the supreme court, court of appeals and tax court

Jun 01 2012, 3:47 pm

_____________________________________________________________________ CLERK ) ) Petitioner, ) ) v. ) Cause No. 49T10-1008-TA-45 ) INDIANA DEPARTMENT OF STATE ) REVENUE, ) ) Respondent. ) ______________________________________________________________________ ORDER ON RESPONDENT'S MOTION TO DISMISS FOR PUBLICATION June 1, 2012 WENTWORTH, J. Fresenius USA Marketing, Inc. has appealed the Indiana Department of State Revenue's final determination denying its claim for refund of gross retail (sales) and use tax collected on its sales of dialysis equipment and remitted to the Department between January 1, 2004 and October 31, 2007 (the period at issue). The matter is currently before the Court on the Department's motion to dismiss, which the Court denies. FACTS AND PROCEDURAL HISTORY During the period at issue, Fresenius sold equipment used to treat patients with

End Stage Renal Disease. The equipment included, but was not limited to, dialysis machines, dialyzers, fistula needles, bloodlines, compression dressings and bandages, intravenous sets, and syringes. The equipment, "working together as an artificial

replacement kidney, [is] prescribed for a therapeutic purpose, and [to] alleviate a condition brought about by an injury to or malfunction of the patient's body (specifically the kidneys)." (Pet'r Resp. Resp't Mot. Dismiss ("Pet'r Resp.") at 2.) Fresenius collected sales tax from its customers on its equipment sales and remitted it to the Department. Fresenius subsequently filed a refund claim with the Department, maintaining that the sales were relieved from taxation pursuant to the durable medical equipment exemption1 and, as a result, it erroneously collected sales tax from its customers. Fresenius indicated that once it received the refund from the Department, it would return the proper amounts to each of its customers. (See Pet'r Original Tax Appeal Pet. ("Pet."), Ex. A at 3.) On June 7, 2010, the Department issued a final determination denying Fresenius's claim. On August 21, 2010, Fresenius initiated an original tax appeal. On February 17, 2011, the Department filed a motion to dismiss Fresenius's appeal. The Court

conducted a hearing on the Department's motion on May 23, 2011. Additional facts will be supplied as necessary. ISSUES In its motion, the Department provides three alternative reasons for the dismissal

1

Indiana Code

Download Fresenius USA Marketing, Inc. v. Ind. Dept. of State Revenue.pdf

Indiana Law