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ATTORNEYS FOR PETITIONER: RANDAL J. KALTENMARK ZIAADDIN MOLLABASHY LARRY J. STROBLE BARNES & THORNBURG, LLP Indianapolis, IN

ATTORNEYS FOR RESPONDENT: STEVE CARTER ATTORNEY GENERAL OF INDIANA ANDREW W. SWAIN CHIEF COUNSEL, TAX SECTION JESSICA E. REAGAN DEPUTY ATTORNEY GENERAL Indianapolis, IN _____________________________________________________________________

IN THE INDIANA TAX COURT
KITCHIN HOSPITALITY, LLC,

FILED
Mar 03 2008, 1:31 pm
of the supreme court, court of appeals and tax court

_____________________________________________________________________

CLERK ) ) Petitioner, ) ) v. ) Cause No. 49T10-0604-TA-35 ) INDIANA DEPARTMENT OF STATE ) REVENUE, ) ) Respondent. ) _____________________________________________________________________
ORDER ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT NOT FOR PUBLICATION March 3, 2008 FISHER, J. Kitchin Hospitality, LLC (Kitchin) challenges the final determination of the Indiana Department of State Revenue (Department) denying its claims for refund of gross retail (sales) tax paid on its electric, water, and gas (utility) purchases during the years ending December 31, 2004 and October 31, 2005 (years at issue). The matter is currently before the Court on the parties' cross-motions for summary judgment.

FACTS AND PROCEDURAL HISTORY The parties have stipulated to the following facts. Kitchin is a wholly-owned subsidiary of Jameson Inns, Inc. (Jameson). During the years at issue, Kitchin leased fourteen Indiana hotels from Jameson, each of which had identical floor plans consisting primarily of guest rooms and guest accessible common areas (i.e., corridors, lobbies, and fitness rooms).1,2 The guest rooms were equipped with various electrical amenities such as televisions, alarm clocks, coffee makers, irons, and hair dryers. The guest rooms also contained private restroom facilities and individual HVAC units. On November 3, 2005, Kitchin filed two claims for refund with the Department, seeking a refund of $89,713.57 in sales tax it remitted on its utility purchases. On January 6, 2006, the Department issued one final determination, which denied both of Kitchin's claims for refund. On April 5, 2006, Kitchin initiated this original tax appeal. On August 9, 2007, the Department filed a motion for summary judgment. Kitchin filed a motion for partial summary judgment on August 10, 2007. The Court held a hearing on the parties'

motions on November 5, 2007. Additional facts will be supplied as necessary. ANALYSIS AND OPINION Standard of Review This Court reviews final determinations of the Department de novo. IND. CODE

Kitchin's hotels, operated as either Jameson Inns or Signature Inns, were located in Carmel, Elkhart, Evansville, Fort Wayne, Indianapolis, Kokomo, Lafayette, Muncie, South Bend, and Terre Haute. (See Stip. of Facts

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