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ATTORNEYS FOR PETITIONER: TIMOTHY D. HERNLEY RICHARD J. DEAHL BARNES & THORNBURG LLP South Bend, IN

ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER ATTORNEY GENERAL OF INDIANA NANCY M. HAUPTMAN JOHN D. SNETHEN DEPUTY ATTORNEYS GENERAL Indianapolis, IN _____________________________________________________________________

IN THE INDIANA TAX COURT
MIRANT SUGAR CREEK, LLC,

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

Jun 16 2010, 3:05 pm

_____________________________________________________________________ CLERK ) ) Petitioner, ) ) v. ) Cause No. 71T10-0803-TA-18 ) INDIANA DEPARTMENT OF STATE ) REVENUE, ) ) Respondent. ) _____________________________________________________________________ ORDER ON RESPONDENTS MOTION TO STRIKE NOT FOR PUBLICATION June 16, 2010 FISHER, J. On March 5, 2008, Mirant Sugar Creek, LLC (Mirant) initiated an original tax appeal seeking a refund of the approximate $65,000 in Utility Services Use Tax (the USUT) it remitted to the Indiana Department of State Revenue (Department) for the month of July, 2006. On October 31, 2008, the Department filed a motion for summary judgment claiming that Mirants remittance of the USUT was proper. Mirant

subsequently filed a cross-motion for summary judgment and, in support thereof, designated as evidence the affidavit of Jill Houchin, its Senior Tax Analyst, as well as

three pages of e-mails between Ms. Houchin and Jane Berggren, a Tax Analyst with the Department. On December 19, 2008, the Department moved to strike both the affidavit and the e-mails. Mirant filed its response thereto on January 30, 2009. The Court held a hearing on the parties multiple motions on April 2, 2009.1 ANALYSIS AND ORDER Standard of Review This Court acts as a trial court when reviewing the Departments denial of a taxpayers claim for refund. See IND. CODE ANN.

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