Paul J. ELMER and Carol A.N. Elmer, Petitioners, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent.
No. 49T10-1110-TA-00064.
Tax Court of Indiana.
Sept. 1, 2015.
SO ORDERED.
Gregory F. Zoeller, Attorney General of Indiana, John P. Lowrey, Deputy Attorney General, Indianapolis, IN, Attorneys for Respondent.
ORDER ON RESPONDENT‘S MOTION FOR SUMMARY JUDGMENT
FISHER, Senior Judge.
Paul J. Elmer and Carol A.N. Elmer have appealed the Indiana Department of State Revenue‘s assessments of Indiana adjusted gross income tax (AGIT) for the 2005, 2006, 2007, and 2008 tax years (the years at issue). The matter is currently before the Court on the Department‘s Motion for Summary Judgment. While the Department‘s Motion presents three issues, the Court consolidates and restates them as: whether the Department, in determining the Elmers’ Indiana AGIT liabilty, erred in disallowing their business ex
FACTS AND PROCEDURAL HISTORY
During the years at issue, Mr. Elmer was the sole shareholder and president of two S-Corporations: Pharmakon Long Term Care Pharmacy, Inc., an institutional pharmacy, and Hamilton Consulting Group, Inc. (See Br. Supp. Resp‘t Mot. Summ. J. (“Resp‘t Br.“), Ex. 3 at 4; Pet‘rs’ Resp. Resp‘t Summ. J. Mot. (“Pet‘rs’ Br.“) at 5 (citing Aff. Paul Elmer (“Elmer Aff.“) ¶¶ 2-3; Resp‘t Br., Ex. 8 at 10-11).) As a result, the Elmers’ Indiana income tax returns reported their income and losses as well as those of Pharmakon and Hamilton. (See Resp‘t Br., Ex. 3 at 4.) See also Riverboat Dev., Inc. v. Indiana Dep‘t of State Revenue, 881 N.E.2d 107, 109 n. 4 (Ind. Tax Ct.2008) (explaining that the income and losses of an S-Corporation are passed through to its owners (i.e., shareholders) who, in turn, report their pro-rata shares on their individual tax returns), review denied.
The Department subsequently determined that the deductions taken by the Elmers for vehicle, contract labor, operating, and management/marketing expenses were not valid business expense deductions. (See Resp‘t Br., Ex. 3 at 4-13.) The Department also determined that the Elmers had improperly taken a deduction for an uncollectible debt in 2008. (See Resp‘t Br., Ex. 3 at 13-14.) Consequently, the Department disallowed all of the Elmers’ deductions, recalculated their AGIT liability, and assessed them with additional AGIT, interest, and penalties for the years at issue. (See Resp‘t Br., Ex. 1, Ex. 3 at 4.)
The Elmers protested the Department‘s assessments. (See Resp‘t Br., Ex. 3 at 4.) On August 31, 2011, the Department issued a Letter of Findings (LOF) that ultimately upheld the assessments.2 (See generally Resp‘t Br., Ex. 3.)
On October 25, 2011, the Elmers initiated this original tax appeal. On September 13, 2013, the Department filed its Motion. On April 7, 2014, the Court held a hearing on the Motion. Additional facts will be supplied as necessary.
STANDARD OF REVIEW
This Court reviews the Department‘s final determinations regarding proposed assessments de novo.
Summary judgment is proper only when the designated evidence demonstrates that no genuine issues of material fact3 exist and the moving party is entitled
LAW AND ANALYSIS
The Department claims that it has made a prima facie case for summary judgment because its designated evidence (i.e., Exhibit 1) includes the proposed assessments for each of the years at issue. (See Reply Br. Supp. Resp‘t Mot. Summ. J. (“Resp‘t Reply Br.“) at 3 (citing Resp‘t Br., Ex. 1).) The Department is incorrect.
The Department‘s Exhibit 1 contains: (1) copies of the 2005 and 2007 proposed AGIT assessments, including interest, and penalties, and (2) a 2008 proposed assessment for a penalty only. (Resp‘t Br., Ex. 1.) As a result, the Department has made a prima facie showing that there is no genuine issue of material fact as to the validity of the unpaid tax for the 2005 and 2007 tax years, but it has not done so for the 2006 and 2008 tax years.5 This is not, however, necessarily fatal to the Department‘s claims for the 2006 and 2008 tax years because the Department has presented other designated evidence to support its Motion. (See, e.g., Resp‘t Mot. Summ. J. at 1-3.) Nonetheless, before the Court evaluates that other evidence to determine whether the Department has made the requisite prima facie showing for the 2006 and 2008 tax years, the Court will determine whether the Elmers’ designated evidence shows that there is a genuine issue of material fact with respect to the validity of the unpaid tax for the 2005 and 2007 tax years.
I. The 2005 and 2007 Tax Years
A. The Elmer‘s designated evidence
The Elmers’ designation of evidence is contained in their response brief. (See generally Pet‘rs’ Br.) See also Filip, 879 N.E.2d at 1081 (explaining that a party‘s designation of evidence may appear in its brief so long as the party clearly identifies the listed materials as designated evidence). The Elmers’ designated evidence consists of Mr. Elmer‘s affidavit, the deposition testimony of a Ms. Brockley, and a portion of the Department‘s designated evidence (i.e., the Elmers’ Protest Letter (Exhibit 2), Mr. Elmer‘s Deposition Testimony (Exhibit 8), and Mr. Reed‘s Deposi
The Department claims that the Court must disregard Ms. Brockley‘s deposition testimony, the Elmers’ Protest Letter (Exhibit 2), and portions of the Elmers’ brief (including Mr. Elmer‘s affidavit) because each is inadmissible. (See Resp‘t Reply Br. at 3-4.) As an initial matter, therefore, the Court must determine whether it may consider the Elmers’ designated evidence. See Miller Pipeline Corp. v. Indiana Dep‘t of State Revenue, 995 N.E.2d 733, 736 (Ind. Tax Ct.2013) (stating that the Court will only consider properly designated evidence that would be admissible at trial).
Having reviewed the Elmers’ designated evidence, the Court will not consider Ms. Brockley‘s deposition testimony because the Elmers have not filed any portion of her deposition with the Court. See, e.g., Thomas v. N. Cent. Roofing, 795 N.E.2d 1068, 1071-72 (Ind.Ct.App.2003) (finding that a trial court erred in granting partial summary judgment to a party that did not actually file its designated evidence with the trial court). In addition, the Court will not consider the Elmers’ Protest Letter (Exhibit 2), which was prepared by their attorney, because it is unverified, unsupported by an affidavit, and contains hearsay. (See Resp‘t Br., Ex. 2.) See also, e.g., Freson v. Combs, 433 N.E.2d 55, 59 (Ind.Ct.App.1982) (providing that the unsworn commentary of an attorney, briefs, and unsworn statements should not be considered for purposes of summary judgment); Wallace v. Indiana Ins. Co., 428 N.E.2d 1361, 1365 (Ind.Ct.App.1981) (providing that unverified exhibits that are not supported by affidavits are inadmissible).
Furthermore, the Court must disregard the factual allegations in the Elmers’ brief that are not supported by any reference, or citation to, the designated evidence. (See, e.g., Pet‘rs’ Br. at 10 (claiming that the IRS allowed all of the Elmers’ business expense and uncollectible debt deductions for the years at issue).) With respect to the Elmers’ designated evidence, therefore, the Court will consider: 1) the legal propositions set forth in the Elmers’ brief; 2) the properly designated parts of Mr. Elmer‘s affidavit;6 3) Mr. Elmer‘s Deposition Testimony (Exhibit 8); and 4) Mr. Reed‘s Deposition Testimony and Affidavit (Exhibits 11 and 20). See, e.g., Vanco v. Sportsmax, Inc., 448 N.E.2d 1198, 1200 (Ind.Ct.App.1983); Freson, 433 N.E.2d at 59. See also Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 759-60 (Ind.Ct.App.1998) (stating that “[o]nce evidence has been designated to [a court] by one party, that evidence is deemed designated and the opposing party need not designate the same evidence“).
B. Whether there is a genuine issue of material fact7
A corporation‘s Indiana “adjusted gross income” is the same as its federal “taxable income” (as defined in
In its Motion, the Department has claimed that it is entitled to judgment as a matter of law for three alternative reasons. First, the Department claims that it correctly disallowed the Elmers’ business expense deductions because the Pharmakon and Hamilton transactions that generated the business expenses lacked economic substance. (See Resp‘t Br. at 6-12.) Alternatively, the Department claims that the Elmers erred in taking the deductions because the expenses were not ordinary and necessary business expenses. (See, e.g., Resp‘t Br. at 9-10.) Finally, the Department contends that the Elmers have not presented sufficient written documentation to substantiate their business ex
1. Economic substance
The “economic substance doctrine” is a federal common law doctrine that disallows certain tax benefits when a taxpayer‘s transactions do not have a business purpose or economic substance.
The Department claims that Pharmakon and Hamilton‘s transactions were shams devoid of all economic substance because: (1) the two S-corporations were closely related given that Mr. Elmer was the sole shareholder and president of both, (2) Mr. Elmer performed the same duties for each and failed to distinguish between either when working with a third party, Augusta Corporation,9 and (3) Hamilton had no employees. (See Resp‘t Br. at 9-12 (citing Resp‘t Br., Ex. 8 at 51, 57-58, Ex. 11 at 21-22).) The Department further claims that Pharmakon and Hamilton‘s transactions were shams without economic sub
In response, the Elmers explain that Mr. Elmer had been doing business with Mr. Reed, the sole owner of Augusta and the primary owner of Magnolia Health Systems,11 since he created Pharmakon in 2003. (See Pet‘rs’ Br. at 4-5 (citing Elmer Aff. ¶¶ 2, 4).) In turn, Mr. Elmer explained that he created Hamilton in 2004 because he wanted to expand his pharmaceutical business and use a different business entity to create new business relationships with, and provide innovative services to, Pharmakon‘s competitors. (See Pet‘rs’ Br. at 2, 4-6 (citing Resp‘t Br., Ex. 8 at 57-59, Ex. 11 at 17-18, 21; Elmer Aff. ¶¶ 3, 7).) Mr. Elmer also explained that he and Mr. Reed have never co-owned any businesses or recorded any of their business arrangements in writing. (See Pet‘rs’ Br. at 3-7 (citing Elmer Aff. ¶¶ 5-6, 8).) In fact, Mr. Elmer averred that it was customary to have oral agreements in his industry, explaining that when a local hospital requested that Pharmakon provide it with medications, the medications were immediately provided without a written contract. (See Pet‘rs’ Br. at 5 (citing Resp‘t Br., Ex. 8 at 29-30).)
“The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U.S. 465, 469 (1935) (citations omitted). As a result, “a taxpayer may adopt any form he desires for the conduct of his business, and ... the chosen form cannot be ignored merely because it results in a tax saving.” N. Ind. Pub. Serv. Co. v. C.I.R., 115 F.3d 506, 511 (7th Cir.1997) (citation omitted). Nonetheless, courts may disallow statutorily conferred tax advantages when the facts indicate that a business was not formed for
substantial business purposes or that it does not engage in substantial business activity. See id. Whether a transaction is a sham for purposes of the economic substance doctrine, therefore, is an issue of fact. See, e.g., Rice‘s Toyota, 752 F.2d at 92.
Here, the Department‘s designated evidence indicates that Pharmakon and Hamilton‘s transactions may have lacked economic substance. In contrast, the Elmers’ designated evidence indicates that Mr. Elmer was guided by valid business purposes when he created Hamilton and when he conducted Pharmakon and Hamilton‘s transactions. Accordingly, the Court having construed all properly asserted facts and the reasonable inferences drawn therefrom in favor of the Elmers, finds that there is a genuine issue of material fact as to whether Pharmakon and Hamilton‘s transactions lacked economic substance. See Scott Oil Co. v. Indiana Dep‘t of State Revenue, 584 N.E.2d 1127, 1128-29 (Ind. Tax Ct.1992). Thus, neither the Department nor the Elmers are entitled to summary judgment on this basis.
2. Ordinary and Necessary Business Expenses
“An ‘ordinary’ expense is one that is ‘normal, usual, or customary in the type of business involved.‘” Curcio v. C.I.R., 689 F.3d 217, 223 (2d Cir.2012) (citations omitted). An expense, however, need not be habitual to be “ordinary;” instead, “the transaction ‘must be of common or frequent occurrence in the type of business involved[.]‘” Id. (citation omitted). A “necessary” expense, in turn, “is one that is ‘appropriate and helpful’ for the development of the taxpayer‘s business.” Id. (citations omitted).
The Department claims that the Elmers improperly took business expense deductions under
3. Substantiating Documentation
IRC § 6001 provides that “[e]very person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe.”I.R.C. § 6001 (2005) . In addition,IRC § 274 , in relevant part, states that no deduction for traveling expenses underIRC § 162 shall be allowed unless [a] taxpayer substantiates by adequate records or by sufficient evidence corroborating the taxpayer‘s own statement (A) the amount of such expense or other item, (B) the time and place of the travel, entertainment, amusement, recreation, or use of the facility or property, or the date and description of the gift, (C) the business purpose of the expense or other item, and (D) the business relationship to the taxpayer of the persons entertained, using the facility or property, or receiving the gift.I.R.C. § 274(d) (2005) .
The Department has claimed that these authorities establish that it is entitled to judgment as a matter of law because the Elmers have not of-fered sufficient written documentation to substantiate their business expense deductions.12 (See Resp‘t Br. at 5-12.) The Court, however, must disagree.
A taxpayer‘s failure to produce corroborating written documentation at the federal level may entitle a federal taxing official to summary judgment. See, e.g., In re Settles, 452 B.R. 637, 660 (Bankr. E.D.Tenn.2011) (providing that a debtor‘s promise that evidence substantiating his claimed business expense deductions would be produced at trial was insufficient to preclude entry of summary judgment in favor of a taxing official on the issue of whether the debtor was entitled to the deductions). The same does not hold true for purposes of Indiana law. Indeed, the Indiana Supreme Court has explained that Indiana‘s summary judgment procedure differs from that employed at the federal level because Indiana does not adhere to the federal methodology:
The burden imposed at trial upon the party with the burden of proof on an issue is significantly different from that required of a non-movant in an Indiana summary judgment proceeding. Under Indiana‘s standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence.... Un
der the federal rule, [however,] the party seeking summary judgment is not required to negate an opponent‘s claim. [Instead, t]he movant need only inform the court of the basis of the motion and identify relevant portions of the record “which it believes demonstrate the absence of genuine issue of material fact.” The burden then rests upon the non-moving party to make a showing sufficient to establish the existence of each challenged element upon which the non-movant has the burden of proof.
Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994) (citations omitted). The case of Lenhardt Tool & Die Company, Inc. v. Lumpe, 703 N.E.2d 1079 (Ind.Ct.App.1998), trans. denied exemplifies the lessons of Jarboe in practice and is of particular relevance here.
In Lenhardt, the plaintiff filed a complaint for negligence and strict liability against the defendant, a manufacturer of molds. Lenhardt Tool & Die Co. v. Lumpe, 703 N.E.2d 1079, 1081 (Ind.Ct.App.1998), trans. denied. The defendant, after unsuccessfully moving for summary judgment, claimed that the trial court had erred in denying its motion because the plaintiff‘s designated evidence did not prove that the defendant had manufactured the molds that caused the plaintiff‘s injuries. Id. In resolving the defendant‘s appeal, the Indiana Court of Appeals explained that it must determine whether “a defendant [may] succeed in a motion for summary judgment by showing the plaintiff lacks sufficient proof to establish an essential element of the plaintiff‘s claim on which the plaintiff bears the burden of proof.” Id. The Court of Appeals explained that the trial court had not erred given the defendant‘s failure to designate sufficient evidence in support of its motion and the Indiana Supreme Court‘s decision in Jarboe:
It is clear that under the Jarboe analysis, [the defendant] would have had to designate some evidence that the mold was not manufactured by [the defendant] in order to require [the plaintiff] to come forward with evidence that the mold was manufactured by [the defendant]. Simply demonstrating that [the plaintiff] does not have sufficient evidence to prove the mold was manufactured by [the defendant] is not enough.
See id. at 1083. The Court of Appeals acknowledged that in some instances, a plaintiff may not produce better evidence at trial and, as a result, a defendant would be granted a motion for judgment on the evidence because the plaintiff would have failed to prove an essential element of its case. Id. Nevertheless, the Court of Appeals determined that Jarboe compelled it to affirm the trial court given that “summary judgment terminates the right to trial and that summary judgment [may] be denied even though it appears that [a] plaintiff may not succeed at trial.” Id. at 1084 (citation omitted).
The Elmers, like the plaintiff in Lenhardt, have the burden of proving that the Department‘s proposed assessments are incorrect. See RAC II, 963 N.E.2d at 466;
II. The 2006 and 2008 Tax Years
As previously explained, the Court must determine whether the Department has made a prima facie showing that there is no genuine issue of material fact as to the validity of the unpaid tax for the 2006 and 2008 tax years because it failed to properly designate the 2006 and 2008 proposed AGIT assessments as evidence. See supra pp. 189-90. For the below-stated reasons, the Court finds that the Department has not made the requisite prima facie showing with respect to the uncollectible debt deduction or the Elmers’ other 2006 and 2008 business expense deductions.
The uncollectible or bad debt deduction is another permissible
The Department has designated the following admissible evidence to support its claim: the LOF (Exhibit 3), Mr. Elmer‘s Deposition Testimony (Exhibit 8), Mr. Reed‘s Deposition Testimony (Exhibit 11), the First and Second Responses to the Department‘s Request for Production of Documents (Exhibits 13 and 15), and the Responses to the Department‘s Second Set of Interrogatories (Exhibit 14).13 (See Resp‘t Br. at 3, 13-14 (citing Resp‘t Br., Ex. 3 at 11, Ex. 8 at 21, 69, Ex. 11 at 8, 13-15, Ex. 13 at No. 17, Ex. 14 at Nos. 18-19, and Ex. 15 at No. 8).) This evidence establishes the following:
During the administrative protest phase, the Elmers explained that they took an uncollectible debt deduction on their 2008 amended return because the period in which Pharmakon could receive insurance reimbursements had expired. Mr. Elmer and Mr. Reed subsequently explained that some of Mr. Reed‘s long-term care facilities, including Magnolia, did not always have the means to pay Pharmakon for the services it had rendered in a timely fashion. As a result, Mr. Elmer and Mr. Reed had occasional meetings during which they discussed “the unpaid accounts receivable that
The Court similarly finds that the Department did not make its prima facie showing as to the propriety of the Elmers’ other 2006 and 2008 business expense deductions for three main reasons. First, the Court cannot consider the majority of the material facts that support the Department‘s claims for those years because the facts are derived from exhibits that are unverified, unsupported by affidavits, unauthenticated, or contain hearsay. (Compare Hr‘g Tr. at 8-16 (identifying the material facts) with supra note 10 (the Department‘s inadmissible exhibits).) Second, the Department‘s rationale for disallowing the Elmers’ 2006 and 2008 business expense deductions is the same as that presented for the 2005 and 2007 deductions, (see, e.g., Resp‘t Br. at 2-5; Hr‘g Tr. at 7-16), and the Court has already determined that there are genuine issues of material fact with respect to the 2005 and 2007 tax years. Finally, the Department‘s renditions of the admissible material facts are often inconsistent with those in the designated evidence. For instance, the Department states that Mr. Reed “did not know what Augusta‘s business purpose was[.]” (Resp‘t Br. at 4 (citing Resp‘t Br., Ex. 11 at 9-11).) The designated evidence, however, indicates that Mr. Reed explained that Augusta provided management and consulting services and held real estate. (See Resp‘t Br., Ex. 11 at 9-10.) Accordingly, the Court finds that the Department has not shown that it is entitled to summary judgment as a matter of law for the 2006 and 2008 tax years either.
CONCLUSION
In this case, the parties’ designated evidence invites the Court to resolve factual disputes and conflicting inferences, assess the credibility of witnesses, and determine where the preponderance of the parties’ designated evidence lies. This, however, is improper because the summary judgment procedure is not a substitute for trial, a means for resolving factual disputes or conflicting inferences that arise from undisputed facts, or a tool for deciding where the preponderance of the evidence lies before the evidence has been fully presented. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind.2001); Egnatz v. Med. Protective Co., 581 N.E.2d 438, 439-40 (Ind.Ct.App.1991). The Court, finding that there are genuine issues of material fact as to whether the Department, in determining the Elmers’ Indiana AGIT liability, erred in disallowing the Elmers’ business expense and uncollectible debt deductions for the years at issue, DENIES the Department‘s Motion.
SO ORDERED.