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ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT: DAN R. DUNBAR GREGORY F. ZOELLER ROBERT A. ROMACK ATTORNEY GENERAL OF INDIANA DUNBAR & ROMACK JONATHAN E. LAMB Greenwood, IN DEPUTY ATTORNEY GENERAL Franklin, IN Indianapolis, IN _____________________________________________________________________

IN THE INDIANA TAX COURT
UTILIMASTER CORPORATION,

FILED
Apr 17 2012, 10:59 am
of the supreme court, court of appeals and tax court

_____________________________________________________________________ CLERK ) ) Petitioner, ) ) v. ) Cause No. 71T10-1008-TA-43 ) INDIANA DEPARTMENT OF STATE ) REVENUE, ) ) Respondent. ) _____________________________________________________________________ ORDER ON RESPONDENT'S MOTION TO DISQUALIFY PETITIONER'S ATTORNEYS _____________________________________________________________________ FOR PUBLICATION April 17, 2012 WENTWORTH, J. This matter comes before the Court on the Indiana Department of State Revenue's (Department) motion to disqualify Utilimaster Corporation's (Utilimaster) attorneys pursuant to Indiana Professional Conduct Rule 3.7, the Advocate-Witness Rule. In order to grant the Department's motion, the Court must find , as a preliminary matter, that Utilimaster's attorneys are likely to be necessary witnesses at trial. The Court finds they are not.

BACKGROUND Utilimaster manufactures commercial vehicles in Elkhart County, Indiana. On February 26, 2010, it filed a claim with the Department seeking a refund of the $17,943.65 in Indiana gross retail (sales) and use tax it remitted on purchases of natural gas between June 1, 2008 and December 31, 2009 (the period at issue). Utilimaster's refund claim explained that during the period at issue, it used several sealants and adhesives in its manufacturing process that required an ambient air temperature of between 60 and 80 degrees Fahrenheit to properly cure. Utilimaster asserted that because it purchased and used natural gas to maintain that ambient air temperature, those purchases were not subject to taxation pursuant to the "predominate use exclusion" contained in Indiana Code

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Indiana Law