Blue Chip Casino, LLC v. LaPorte Cnty. Treasurer

27 N.E.3d 1198

BLUE CHIP CASINO, LLC, Petitioner

v. LaPORTE COUNTY TREASURER, RespondentandLaPorte County Convention & Visitors Bureau, Intervenor.

No. 49T10–1008–TA–37.

Tax Court of Indiana.

March 16, 2015.

Stephen H. Paul, Brent A. Auberry, Daniel R. Roy, Faegre Baker & Daniels LLP, Indianapolis, IN, Attorneys for Petitioner.

Christopher L. Willoughby, Braje, Nelson & Janes, LLP, Michigan City, IN, Attorney for Respondent.

Michael S. Bergerson, Michael S. Bergerson Law Office, Michigan City, IN, Shaw R. Friedman, Friedman & Associates, PC, LaPorte, IN, Marilyn S. Meighen, Attorney At Law, Attorneys for Intervenor.

ORDER ON PARTIES' CROSS–MOTIONS FOR SUMMARY JUDGMENT

WENTWORTH, J.

Blue Chip Casino, LLC has appealed the LaPorte County Treasurer's failure to respond to its request for a refund of innkeeper's tax that it paid to the Treasurer between January 2007 and August 2009 (the period at issue).¹ The parties are before the Court on cross-motions for summary judgment, but lacking subject matter jurisdiction, the Court cannot decide the merits of the case.

FACTS AND PROCEDURAL HISTORY

Blue Chip owns and operates a riverboat casino and hotel in LaPorte County, Indiana. During the period at issue, Blue Chip remitted over $300,000 in innkeeper's tax to the Treasurer for the complimentary hotel rooms it provided to various members and non-members of its Players Club program. (See Pet'r Pet. ¶ 5; Pet'r Mem. Supp. Mot. Summ. J. (“Pet'r Br.”) at 3, 5, 7–14.) Thereafter, Blue Chip determined that it remitted the innkeeper's tax in error.

On December 29, 2008, Blue Chip filed a Form GA–110L with the Indiana Department of State Revenue seeking, among other things, a refund of the innkeeper's tax it remitted between January 2007 and May 2008. (See Pet'r Pet. ¶ 6; Pet'r Des'g Evid. Supp. Mot. Summ. J. (“Pet'r Des'g Evid.”), Ex. A at Ex. 2 at 4–12.) On July 20, 2009, the Department issued a Memorandum of Decision denying Blue Chip's refund claim, stating that because the tax was neither “reported [n]or remitted to the [Department, Blue Chip] must claim the refund directly from the county.” (Pet'r Des'g Evid., Ex. A at Ex. 2 at 1–3.)

On September 9, 2009, Blue Chip sent the LaPorte County Auditor a three-page letter requesting a refund of the innkeeper's tax it remitted between January 2007 and July 2009. (See Pet'r Des'g Evid., Ex. A at Ex. 3.) On February 2, 2010, Blue Chip sent the Treasurer a letter stating:

Because LaPorte County has adopted Ordinance No. 92–1, under Ind.Code § 6–9–29–3 your office is granted “the same rights and powers with respect to collecting the county innkeeper's tax as the department of state revenue.” Responsibility for collecting the Innkeeper's Tax includes administering refunds of erroneously collected tax, as is the responsibility of the Indiana Department of Revenue under Ind.Code § 6–8.1–9 with respect to Innkeeper's Tax that it collects on behalf of and distributes to various counties across the state. Therefore, Blue Chip has decided to submit this refund claim to you, as the designated local official responsible for collecting and administering the Innkeeper's Tax.

(See Pet'r Des'g Evid., Ex. A at Ex. 4 at 1, 3.) On April 21, 2010, Blue Chip sent the Treasurer a second letter to amend its refund claim to include the August 2009 period. (See Pet'r Des'g Evid., Ex. A at Ex. 5.) The Treasurer, however, never acted on either of these refund claims. (See Pet'r Pet. ¶ 1(f)-(h); Resp't Answer ¶¶ 2, 4.)

On August 4, 2010, Blue Chip appealed to this Court. The LaPorte County Convention & Visitors Bureau moved to intervene on August 23, 2010, and the Court subsequently granted its motion. On December 5, 2011, Blue Chip and the Visitors Bureau filed cross-motions for summary judgment. The Court held a hearing on May 4, 2012. Additional facts will be supplied as necessary.

STANDARD OF REVIEW & LAW

Summary judgment is proper when the designated evidence demonstrates that 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). “Cross-motions for summary judgment do not alter this standard.” Horseshoe Hammond, LLC v. Indiana Dep't of State Revenue, 865 N.E.2d 725, 727 (Ind. Tax Ct.2007) (citation omitted), review denied. In the event that a court lacks subject matter jurisdiction, however, it cannot enter judgment. Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind.1994) (stating that “[a]s a decision on the merits, summary judgment may not be rendered by a court which itself lacks subject matter jurisdiction”) (citation omitted).

Subject matter jurisdiction, the power of a court to hear and determine a particular class of cases, can only be conferred upon a court by the Indiana Constitution or by statute. See K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006) ; State v. Sproles, 672 N.E.2d 1353, 1356 (Ind.1996). The Tax Court's enabling legislation confers exclusive jurisdiction over cases that 1) arise under Indiana's tax laws, and 2) are initial appeals of final determinations of the Department regarding listed taxes as defined in Indiana § 6–8.1–1–1. Ind. Code § 33–26–3–1(1) (2015). In addition, the Tax Court has any other jurisdiction specifically assigned by statute. See Ind. Code §§ 33–26–3–2(1) ; –3(2) (2015).

ANALYSIS

Blue Chip's appeal is not taken from a final determination of the Department. Instead, Blue Chip appeals from the failure of the Treasurer to act upon its request for a refund. Nonetheless, Blue Chip contends that the Court has subject matter jurisdiction over this case based on Ordinance No. 92–1, which placed the Treasurer in the shoes of the Department for purposes of collecting the LaPorte County's innkeeper's tax. (See Pet'r Br. at 15–16.)

Ordinance No. 92–1, adopted by the LaPorte County Council on March 23, 1992, provides in part:

The Treasurer of LaPorte County is hereby authorized, instructed, and empowered to prepare the necessary documents, establish the necessary and appropriate procedures, and do any and all other things necessary to establish procedures for local collection of the LaPorte County Innkeepers' Tax, all as provided by I.C. § 6–9–6–6 [.]

(Pet'r Des'g Evid., Ex. D at 2 (emphasis added).) Moreover, Indiana Code § 6–9–6–6(b), the statute governing the LaPorte County Council's adoption of Ordinance No. 92–1, states:

The county fiscal body may adopt an ordinance to require that the tax be reported on forms approved by the county treasurer and that the tax shall be paid monthly to the county treasurer. If such an ordinance is adopted, the tax shall be paid to the county treasurer not more than twenty (20) days after the end of the month the tax is collected. If such an ordinance is not adopted, the tax shall be imposed, paid, and collected in exactly the same manner as the state gross retail tax [ (i.e., sales tax) ] is imposed, paid, and collected pursuant to IC 6–2.5.

Ind.Code § 6–9–6–6(b) (2007).

By the plain terms of both Indiana Code § 6–9–6–6(b) and Ordinance No. 92–1, the Treasurer acquired powers related solely to the collection of the innkeeper's tax that did not expressly authorize a process for refunding taxes that may have been erroneously overpaid. See SAC Fin., Inc. v. Indiana Dep't of State Revenue, 24 N.E.3d 541, 547 (Ind. Tax Ct.2014) ; Gary Cmty. Sch. Corp. v. Indiana Dep't of Local Gov't Fin., 15 N.E.3d 1141, 1145 (Ind. Tax Ct.2014) (both explaining that because statutory language is deemed intentionally chosen by the Legislature, the Court will not alter a statute's meaning by reading in language to correct supposed omissions); F.A. Wilhelm Const. Co. v. Indiana Dep't of State Revenue, 586 N.E.2d 953, 955 (Ind. Tax Ct.1992) (stating that the Court has no power to construe unambiguous statutes for the purpose of limiting or extending their operation). The language of Indiana Code § 6–9–29–3 lends further support to this position, as it states that: “[i]f an ordinance has been adopted requiring the payment of the innkeeper's tax to the county treasurer instead of the [Department], the county treasurer has the same rights and powers with respect to collecting the county innkeeper's tax as the [Department].” Ind. Code § 6–9–29–3 (2007) (emphasis added). Consequently, Indiana Code § 6–9–6–6(b), Indiana Code § 6–9–29–3, and the LaPorte County Ordinance itself all affirmatively indicate that Ordinance No. 92–1 gave the Treasurer the right to collect the innkeeper's tax, but by omission, not the right to determine refunds.

Nevertheless, Blue Chip maintains that the Treasurer does have the right to determine refund claims because the duty to collect the innkeeper's tax necessarily includes the duty to refund the tax. (See Hr'g Tr. at 23 –24.) Blue Chip argues that to find otherwise creates an absurdity in that the Treasurer “ha[s] the authority to take Blue Chip's money but then lack[s] the authority to give it back when Blue Chip overpa[ys].” (Hr'g Tr. at 24.) This argument, however, is unavailing for three reasons.

First, the Legislature is presumed to mean what it says. Hyatt Corp. v. Indiana Dep't of State Revenue, 695 N.E.2d 1051, 1053 (Ind. Tax Ct.1998), review denied. The Legislature knows how to prescribe the authority to grant refunds, having already done so for the Department under Indiana Code § 6–8.1–9 et seq. See, e.g., Ind.Code § 6–8.1–9–1(a) (2015) (providing that a person may file a refund claim with the Department if the person has paid more tax than the person determines is legally due). Moreover, when the Legislature intends to confer one or more of the Department's responsibilities to a different agency, it has expressed this intention clearly. For example, Indiana Code § 6–8.1–3–1(b) states:

In the case of the motor vehicle excise tax, the [Department] has the responsibility to act only in the investigation, assessment, collection, and enforcement of the tax in instances of delinquency or evasion. Primary responsibility for the administration and collection of

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