973 N.E.2d 111
Ind. T.C.2012Background
- Wireless Advocates, LLC appeals the Indiana Department of State Revenue’s final determination denying its 2006 income tax refund claim.
- The Department filed a Motion to Dismiss for failure to state a claim upon which relief may be granted, which the Court denied.
- Wireless Advocates, a foreign LLC doing business in multiple states including Indiana, had claimed a $6,465 refund for 2006.
- The Department denied the refund on June 29, 2011; Wireless Advocates filed a Verified Petition for Judicial Review on September 26, 2011.
- Gaisser (a Wireless Advocates officer) signed the Petition and Notice of Appearance; the Department later alleged improper representation by a non-attorney.
- The Court held that dismissal was not the proper remedy and required the Department to answer within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal is proper for alleged improper representation | Wireless Advocates should be allowed to cure the defect and proceed to de novo review. | Dismissal is appropriate due to non-attorney filings and potential unauthorized practice of law. | Not proper; denial of motion and proceed with case. |
Key Cases Cited
- Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451 (Ind.2011) (motion-to-dismiss standard; tests facial sufficiency)
- Christian Bus. Phone Book, Inc. v. Indianapolis Jewish Cmty. Relations Council, 576 N.E.2d 1276 (Ind.Ct.App.1991) (corporate litigant must be given opportunity to retain counsel)
- Sherry Designs, Inc. v. State Bd. of Tax Comm’rs, 589 N.E.2d 285 (Ind.Tax Ct.1992) (procedural defect by non-attorney may be curable)
- State ex rel. Western Parks v. Bartholomew Cnty. CL, 383 N.E.2d 290 (Ind.1978) (corporate litigant must be given counsel before court proceeds)