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ATTORNEYS FOR RESPONDENTS: STEVE CARTER ATTORNEY GENERAL OF INDIANA ANDREW W. SWAIN CHIEF COUNSEL, TAX SECTION MATTHEW R. NICHOLSON DEPUTY ATTORNEY GENERAL Indianapolis, IN _____________________________________________________________________

ATTORNEY FOR PETITIONERS: ANDREW C. MATERNOWSKI ATTORNEY AT LAW Indianapolis, IN

IN THE INDIANA TAX COURT
_____________________________________________________________________ JOHN DAVID HARRISON and JENNIFER A. HARRISON, ) ) ) Petitioners, ) ) v. ) Cause No. 49T10-0409-TA-44 ) INDIANA DEPARTMENT OF STATE ) REVENUE and JOHN ECKART, ) ) Commissioner, 1 ) Respondents. ) _____________________________________________________________________ ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT FOR PUBLICATION November 19, 2007 FISHER, J. John David Harrison and Jennifer A. Harrison (the Harrisons) appeal the final determination of the Indiana Department of State Revenue (Department) assessing them with the controlled substance excise tax (CSET). The matter is before the Court

Pursuant to Ind. Trial Rule 25(F), the Court hereby removes Kenneth L. Miller from the caption of this matter and substitutes John Eckart as Commissioner of the Indiana Department of State Revenue. See Ind. Trial Rule 25(F).

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on the parties' cross-motions for summary judgment. The issue for the Court to decide is whether the Department's CSET assessment against the Harrisons was improper. FACTS AND PROCEDURAL HISTORY On December 26, 2000, the Harrisons were arrested after law enforcement officers, who were executing a search warrant, seized marijuana and related paraphernalia from their residence. The Harrisons were charged with possession of marijuana with intent to deliver 2 and reckless possession of paraphernalia. 3 addition, Mr. Harrison was charged with maintaining a common nuisance. 4 On June 27, 2003, Mrs. Harrison entered into a pretrial diversion agreement, whereby she agreed, inter alia, to commit no criminal offenses for one year, to submit to random drug screens, and to pay a total diversion fee of $170.00. In exchange, the State agreed to suspend pursuit of the criminal charges and ultimately dismiss those charges if she complied with the terms of their agreement. On July 1, 2004, the criminal charges against Mrs. Harrison were dismissed. Mr. Harrison also entered into a plea agreement with the State on June 27, 2003, in which he pled guilty to maintaining a common nuisance, a Class D Felony. In In

exchange, the State agreed, inter alia, to dismiss the other criminal charges and recommend that he receive a $ 200.00 fine, a three-year suspended sentence, and a reduction of his felony conviction to a misdemeanor once he successfully completed probation. On August 14, 2003, after conducting a hearing, the circuit court accepted

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IND. CODE ANN.

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