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ATTORNEYS FOR PETITIONERS: LARRY J. STROBLE BARNES & THORNBURG LLP Indianapolis, IN ARTHUR R. ROSEN DONALD M. GRISWOLD JEFFREY S. REED MCDERMOTT, WILL & EMERY LLP New York, NY

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

FILED
Oct 20 2008, 4:25 pm
of the supreme court, court of appeals and tax court

CLERK ______________________________________________________________________
MBNA AMERICA BANK, N.A. & AFFILIATES, ) ) ) Petitioners, ) ) v. ) Cause No. 49T10-0506-TA-53 ) INDIANA DEPARTMENT OF ) STATE REVENUE, ) ) Respondent. ) ______________________________________________________________________ ORDER ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________ FOR PUBLICATION October 20, 2008 FISHER, J. MBNA America Bank, N.A. & Affiliates (MBNA) appeals the final determination of the Indiana Department of State Revenue (Department) denying its claims for refund of Indiana Financial Institutions Tax (FIT) paid during the 1992-1998 tax years (years at issue). The matter is currently before the Court on the Department's motion for

IN THE INDIANA TAX COURT

summary judgment. The Court restates the issue as whether the Commerce Clause requires MBNA to have a physical presence in Indiana in order to be subject to the FIT. FACTS AND PROCEDURAL HISTORY MBNA, a national bank with its principal place of business in Delaware, issues Visa and MasterCard credit cards to consumers throughout the United States, including Indiana. During the years at issue, MBNA did not maintain any place of business within Indiana, nor did its employees enter Indiana on business. MBNA acquired its Indiana customers through telephone and mail solicitation. MBNA extended credit to those customers and regularly received interest and fees from them. On September 10, 2001, the Department issued a Notice of Assessment to MBNA seeking payment of the FIT for the years at issue. Consequently, on November 8, 2001, MBNA filed FIT returns for the years at issue and paid the tax in full. On October 15, 2004, MBNA filed a claim for refund of all FIT taxes paid. The Department denied MBNA's claim for refund on April 12, 2005. On June 30, 2005, MBNA initiated this original tax appeal. On February 2, 2007, the Department filed a motion for summary judgment. This Court conducted a hearing on the Department's motion on October 30, 2007. Additional facts will be supplied as necessary. STANDARD OF REVIEW Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In other words, summary judgment is designed to provide speedy resolution to those cases that may be determined as a matter of law because there are no factual

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disputes. See Matonovich v. State Bd. of Tax Comm'rs, 705 N.E.2d 1093, 1096 (Ind. Tax Ct. 1999), review denied. DISCUSSION Indiana's FIT, codified at Indiana Code

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