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ATTORNEYS FOR PETITIONER
Gregory F. Zoeller Attorney General of Indiana John D. Snethen Deputy Attorney General Matthew R. Nicholson Deputy Attorney General Timothy A. Schultz Deputy Attorney General Jennifer E. Gauger Deputy Attorney General Andrew W. Swain Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR RESPONDENT
Stephen H. Paul Jon B. Laramore Brent A. Auberry Fenton D. Strickland Baker & Daniels LLP Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE INDIANA CHAMBER OF COMMERCE
Geoffrey Slaughter Taft Stettinius & Hollister LLP Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE COUNCIL ON STATE TAXATION
Mark J. Richards Brian J. Paul Ice Miller LLP Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 49S10-1010-TA-519 INDIANA DEPARTMENT OF STATE REVENUE,

In the

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

Feb 09 2011, 9:05 am

CLERK

Petitioner below, v. BELTERRA RESORT INDIANA, LLC, Respondent below. _________________________________ Petition for Review from the Indiana Tax Court, No. 49T10-0605-TA-49 The Honorable Thomas G. Fisher, Judge _________________________________ ON PETITION FOR REHEARING _________________________________ February 9, 2011 Rucker, Justice.

Belterra Resort Indiana, LLC ("Belterra") seeks rehearing of this Court's opinion in which we determined that capital contributions are not automatically exempt from Indiana use tax. See Ind. Dep't of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174 (Ind. 2010). The essential facts are these. The Indiana Department of Revenue ("Department") imposed upon Belterra a use tax assessment in the amount of $1,869,783.00 plus penalty and interest due to Belterra's acquisition of a riverboat from its parent company, Pinnacle Entertainment, Inc. Id. at 176. On appeal the Tax Court granted summary judgment in favor of Belterra, holding that under the circumstances Belterra was not subject to use tax. On review we reversed the Tax Court's decision and entered summary judgment in favor of the Department. In doing so we held the "step transaction" doctrine applied to Pinnacle Entertainment's capital contribution of the riverboat; thus the contribution was a retail transaction subject to Indiana use tax. Id. at 180. In its petition for rehearing Belterra argues (a) this Court misapplied the "step transaction" doctrine,1 (b) even if the Court properly applied the doctrine conflicting factual inferences nonetheless preclude summary judgment in the Department's favor, and (c) because the Tax Court entered summary judgment in favor of Belterra, it did not address the question of whether Belterra is subject to a tax penalty. We grant rehearing to address this latter argument.

Indiana Code section 6-8.1-10-2.1(a)(3) provides in relevant part that if a taxpayer "incurs, upon examination by the department, a deficiency that is due to negligence . . . the person is subject to a penalty." However, "[i]f a person subject to the penalty imposed under this section can show that the failure to . . . pay the deficiency determined by the department was due to reasonable cause and not due to willful neglect, the department shall waive the penalty." I.C.

Download Indiana Dept. of State Revenue v. Belterra Resort Indiana, LLC.pdf

Indiana Law