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ATTORNEYS FOR PETITIONERS:    ATTORNEYS FOR RESPONDENTS:
DAVID H. McNAMAR    JEFFREY A. MODISETT
JOHN H. SHARPE     
ATTORNEY GENERAL OF INDIANA
McNAMAR, FEARNOW, & McSHARAR    
Indianapolis, IN     JEFFREY S. McQUARY
    
DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
_____________________________________________________________________

IN THE

INDIANA TAX COURT
_____________________________________________________________________

DAVID C. BRUNS, M.D. and ELLEN M. BRUNS                                          )
                                                                                      )
    Petitioners,                                                                      )
                                                                                      )
    v.                                                                                )Cause No. 49T10-9712-TA-00206        
                                                                                      )
  INDIANA DEPARTMENT OF STATE REVENUE                                                 )
and STATE BOARD OF TAX COMMISSIONERSSee footnote 
 1
                                       ,                                                                                 )    
                                                                                      )
    Respondents.                                                                      )    
  _____________________________________________________________________
           

ON APPEAL FROM A FINAL DETERMINATION OF
THE DEPARTMENT OF STATE REVENUE
_____________________________________________________________________

February 2, 1999
NOT FOR PUBLICATION


FISHER, J.
    Petitioner David C. Bruns, M.D. (Bruns) appeals a final determination of the Department of State Revenue (Department) assessing him for motor vehicle excise tax. Bruns raises two issues for the Court's consideration, which the court restates as follows:
I.    Whether Ind. Code Ann. 9-13-2-78(1) (West     1992), is unconstitutionally vague.

II.     Whether Bruns is a resident of Indiana.

FACTS AND PROCEDURAL HISTORY
    Bruns is a physician employed by the Indiana Department of Family and Social Services (FSSA) in its Indianapolis office. Bruns maintains a permanent residence in Gifford, Illinois. His driver's license and license plates are issued by Illinois; he votes in Illinois, and he pays income taxes as an Illinois resident. Bruns drives to Indianapolis on Monday mornings to begin his work week. During the week, Bruns overnights in Plainfield, Indiana.
    Bruns occupies one room in the Plainfield house where he sleeps. Bruns' room contains a bed, a television, a clock radio, various toiletries, and clothing to be worn during the work week. On Friday nights, Bruns drives back to Illinois to spend the weekend with his family.
    On June 3, 1997, Bruns received a letter from the Department indicating that the Department considered him to be a current Indiana resident and that the Department's information indicated that he had been an Indiana resident since 1992. Therefore, the

Department determined that Bruns should have registered his automobile in Indiana beginning in 1992 and should have paid motor vehicle excise tax from that date. See Ind. Code Ann. § 6-6-5-2 (West Supp. 1998). Bruns filed a written letter of protest on June 5, 1997 explaining that he was an Illinois resident. On that same day, the Department issued a letter to Bruns indicating that it had voided its 1992 assessment and had reduced his 1993 liability to $579.67. The Department did not alter its 1994- 1997 assessments. This resulted in a total tax assessment for the years 1993 through 1997 of $2,485.69.
    Bruns filed an appeal of the Department's proposed assessment on July 22, 1997. On July 25, 1997, the Department issued a Letter of Findings (LOF) upholding its proposed assessment. On August 25, 1997, Bruns requested a rehearing from the Department. See Ind. Code Ann. § 6-8.1-5-1(f) (West Supp. 1998). The Department denied Bruns' request for a rehearing and on December 23, 1997, Bruns filed this original tax appeal. Bruns filed a motion for summary judgment on August 19, 1998. Oral argument on this motion was heard on October 20, 1998. Additional facts will be supplied as necessary.

ANALYSIS AND OPINION
Standard of Review
     This court reviews final determinations of the Department de novo and is bound neither by the evidence nor the issues raised at the administrative level. See Ind. Code Ann. § 6-8.1-5-1(h) (West Supp. 1998); ANR Pipeline Co. v. Department of State Revenue, 672 N.E.2d 91, 93 (Ind. Tax Ct. 1996). Summary judgment is appropriate

only when no genuine issue of material fact exists. Ind. T. R. 56(C); Roehl Transp., Inc. v. Department of State Revenue, 653 N.E.2d 539, 541 (Ind. Tax Ct. 1995).

Discussion
    Indiana imposes an annual license excise tax (excise tax) on vehicles required to be registered in Indiana under the motor vehicle laws of the state. See Ind. Code Ann. §§ 6-6-5-2, -6 (West Supp. 1998). The motor vehicle laws require a person, “[w]ithin sixty (60) days of becoming an Indiana resident,” to register any motor vehicle that will be operated on Indiana roads. See Ind. Code Ann. § 9-18-2-1 (West Supp. 1998). The motor vehicle statute defines an Indiana resident as: “[A] person who . . . has been living in Indiana for at least one hundred eighty-three days during a calender year and who has a legal residence in another state . . . .”See footnote 2 Ind. Code Ann. 9-13-2- 78(1). Bruns first argues that section 9-13-2-78(1) violates his due process rightsSee footnote 3

because the phrase “living in Indiana“ is so “imprecise and vague” that it “fails to alert the reader to what conduct constitutes 'living in Indiana.'” (Pet'r Br. at 2).
    Courts should accord statutes with the presumption of constitutionality. See Adoptive Parents of M.L.V. v. Wilkins, 598 N.E.2d 1054, 1058 (Ind. 1992); Bemis, 652 N.E.2d at 92; Helton, 624 N.E.2d at 505. A statute is void for vagueness if its prohibitions are not clearly defined. See Dep't. of Envtl. Management v. Chem. Waste Management, 643 N.E.2d 331, 338 (Ind. 1994); Bemis, 652 N.E.2d at 92; Johnson, 648 N.E.2d at 670; Helton, 624 N.E.2d at 505. A statute is not void for vagueness if it reasonably informs persons of ordinary intelligence of the proscribed conduct. See Bemis, 652 N.E.2d at 92; Johnson, 648 N.E.2d at 670; Helton, 624 N.E.2d at 505-06 (citing Broadrick v. Oklahoma, 413 U.S. 601 (1973)); McIntosh v. State, 638 N.E.2d 1269, 1276 (Ind. Ct. App. 1994). “[A] statute need not list with itemized exactitude each item of conduct prohibited.”See footnote 4 McIntosh, 638 N.E.2d at 1276 (citing Hunter v. State, 172 Ind. App. 397, 360 N.E.2d 588, 595 (1977)).
    In this case, Bruns complains that the phrase “living in Indiana” does not adequately inform him of the conduct that will trigger the tax. Therefore, according to Bruns, section 9-13-2-78(1) is unconstitutionally vague. Bruns points out that section 9-13-2-78(1) does not define what constitutes “living in Indiana” nor were any

regulations promulgated explaining “how it is measured.” (Pet'r Br. at 4). Therefore, this Court should strike the statute down as unconstitutional. The Court disagrees with Bruns.
    The phrase “living in Indiana” was not defined by the legislature. However, “living in Indiana” is a phrase that a person of ordinary intelligence can interpret. Merely because the statute does not account for every scenario that might arise does not render the statute void for vagueness. “Because statutes are condemned to the use of words, there will always be uncertainties for we cannot expect mathematical certainty from our language.” Helton, 624 N.E.2d at 507 (citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). The legislature simply cannot define every word it uses in a statute. Moreover, if the legislature attempted to do so, laws would become so cumbersome that more, rather than less, confusion might result.
    Commonly understood phrases are often used by the legislature because this is an effective way of communicating to the public the focus and intent of a statute without the need to define each word or phrase. Indeed, one of the most well known tenets of statutory construction is that the words in a statute are to be given their plain and ordinary meaning. See Sangralea Boys Fund, Inc. v. State Bd. of Tax Comm'rs, 686 N.E.2d 954, 956 (Ind. Tax Ct. 1997); see also Helton, 624 N.E.2d at 506 (citing Spaulding v. International Bakers Serv., Inc., 550 N.E.2d 307, 309 (Ind. 1990)). Thus, the legislature may use common words and phrases, while at the same time citizens are protected from being subjected to a tortured statutory interpretation by the government. Merely because the legislature did not to define “living in Indiana” and

there is a disagreement as to the meaning of that phrase, the phrase is not so vague as to be unconstitutional. However, as noted above, this does not mean that any interpretation given to the phrase by the Department is acceptable. This leads us to Bruns' second argument.
    Bruns second argument is whether he actually is a resident of Indiana under section 9-13-2-78(1). To determine whether someone is an Indiana resident, the Court must interpret the phrase “living in Indiana.” This phrase is not defined by statute or by any Department regulation. The Department argues that “living in” means spending the duration of a day in a particular place or occupying a home in that place. (Resp't Br. at 6). Bruns argues that under no commonly understood definition of the phrase “living in Indiana” could his merely staying overnight be considered “living in Indiana.”
    In its brief to the Court, the Department asserts that “'living in Indiana' means residing in Indiana.” (Resp't Br. at 6) (emphasis in original). However, the legislated definition of who is a resident is based on whether one lives in Indiana for 183 days per year, not the other way around. The Department goes on to argue that Bruns was “present in Indiana for more than 200 days a year for three of the four years in question . . . .” (Resp't Br. at 7).
    The intent of the definition of resident in section 9-13-2-78(1) is to prevent people who actually live in Indiana from avoiding taxation here by registering their vehicles in nearby states. The Court fails to see how merely being present in Indiana for more than 183 days constitutes living here under any commonly understood definition of the phrase. If it did, many people from states that border Indiana who

leave their homes and families each morning to come to Indiana to work would be deemed Indiana residents and subject to the excise tax on their vehicles.See footnote 5
    The Court understands that the Department faces a difficult task in policing all the vehicles and residents of Indiana to ensure that excise taxes have been paid. The Court also understands that often people attempt to escape taxation through subterfuge, which results in other citizens of this state bearing a larger portion of the tax burden than otherwise would be appropriate. However, this is not an excuse for the Department to transform a phrase with a simple meaning into a trap for the unwary.
    Before concluding, the Court will address one other argument made by the Department. The Department cites State Election Board v. Bayh, 521 N.E.2d 1313 (Ind. 1988), for the definition of domicile.See footnote 6 However, the Department argues that in spite of the fact that the Bayh court noted the word resident, as used in the Indiana Constitution, actually means domicile, id. at 1316, that the use of the word resident in section 9-13-2-78(1) should be strictly construed because section 9-13-2-78(1) applies

to the “less august purpose of vehicle excise taxes.” (Resp't Br. at 8). This is simply an argument by the Department urging this Court to ignore the clear intent of section 9- 13-2-78(1). This Court will not do so.
    The Department cites no authority in support of the proposition that because something is for a “less august” purpose, it must be construed narrowly. Although the Court may agree that the collection of taxes from a single individual may have fewer state-wide implications than the question of who may run for the office of Governor, the Court does not share the Department's belief that forcing even one taxpayer to pay taxes he does not owe is somehow “less august” than any other issue that may come before a court. This Court is sure that Bruns feels that he deserves just as close an examination of the laws of Indiana as does any litigant.
    All this having been said, the Court notes that the question of whether one actually “lives in Indiana” is a factual question. More importantly, conflicting inferences may be drawn from the facts presented in this case. “Summary judgment is not a substitute to resolve factual disputes and is an inappropriate means to resolve conflicting inferences from undisputed facts.” C&C Oil Co. v. Department of State Revenue, 570 N.E.2d 1376, 1378 (Ind. Tax Ct. 1991) (citing ITT Commercial Fin. Corp. v. Union Bank & Trust Co., 528 N.E.2d 1149, 1152 (Ind. Ct. App. 1988)). “Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences arise.” ITT Commercial Fin. Corp. v. Union Bank & Trust Co., 528 N.E.2d 1149, 1152 (Ind. Ct. App. 1988) (citing Board of Aviation Comm'rs of St. Joseph County. v. Hestor, 473 N.E.2d 151, 153 (Ind. Ct. App. 1985)).


    In this case, the Department has inferred from the facts that Bruns is a resident of Indiana. Bruns on the other hand asserts that the facts prove he is a resident of Illinois. Although the actual facts of this case do not appear to be in dispute, the inferences that may be drawn from those facts are in conflict. Therefore, resolution of this issue on summary judgment is not appropriate. See C&C Oil, 570 N.E.2d at 1378; see also Dana Corp. v. State Bd. of Tax Comm'rs, 694 N.E.2d 1244, 1246 (Ind. Tax Ct. 1998).
CONCLUSION
    Bruns' motion for summary judgment is denied.


Footnote:     1Mr. and Mrs. Bruns initiated this action against both the Department of State Revenue and the State Board of Tax Commissioners. Therefore, the case was captioned as such by the Clerk of the Court. However, the motor vehicle excise tax is a listed tax. See Ind. Code Ann. §§ 6-6-5-2(b) & 6-8.1-1-1 (West Supp. 1998). Therefore, the State Board of Tax Commissioners does not administer the tax. See Sproles v. Department of State Revenue, 672 N.E.2d 1353, 1354 n.1 (Ind. 1996). Thus, the State Board is not a proper party and is dismissed from this cause. Ind. T.R. 21. Also, for ease of discussion, the Court has treated this case as if Dr. Bruns is the only petitioner.
Footnote:     2This definition may seem confusing to laymen. Therefore, the Court takes this opportunity to explain that under the law, a person may have only one legal domicile. (Domicile is defined as the place where a person has a permanent home, to which he has, when absent, an intention of returning. See State Election Bd. v. Bayh, 521 N.E.2d 1313, 1317 (Ind. 1988). Thus a person's domicile is commonly thought of as the place where a person votes, sends his children to school, and pays taxes.) However, a person may have more than one legal residence. In other words, a person may legally reside in multiple states while at the same time being legally domiciled in only one state.
Footnote:     3See Ind. Const. art. I, § 12; see also U.S. Const. amend. XIV, § 1. The Indiana corollary to the Due Process Clause of the Fourteenth Amendment (Due Process Clause) is referred to as the Due Course of Law requirement. Bruns does not specifically point to either the Due Process Clause or the Due Course of Law requirement as supporting his position. For example, Bruns argues that “[t]he Department's interpretation of Subsection 78(1) is . . . violative of [Bruns'] due process rights. However, this is of no import because the analysis of federal and state due process is the same. See Bemis v. State, 652 N.E.2d 89, 92 (Ind. Ct. App. 1995); see also Haimbaugh Landscaping, Inc. v. Jegen, 653 N.E.2d 95, 104 (Ind. Ct. App. 1995),

trans. denied; Johnson v. State, 648 N.E.2d 666, 670 (Ind. Ct. App. 1995); Helton v. State, 624 N.E.2d 499, 505 (Ind. Ct. App. 1993), cert. denied 117 S.Ct. 1252 (1997).


Footnote:     4Although the cited case law deals with conduct prohibited by criminal statutes, the application of the law from these cases to the facts of this case does not change the operation of the law. The only difference is that rather than discussing prohibited conduct, in arena of taxation courts discuss what conduct triggers the tax.
Footnote:     5The Indiana legislature has attempted to make provisions for this occurrence by allowing a “nonresident” to operate a vehicle on Indiana roads without registering the vehicle or paying the excise tax “if the vehicle is properly registered in the jurisdiction in which the nonresident is a resident.” See Ind. Code Ann. § 9-18-2-2 (West 1989). From the wording of this statute, it seems clear that the legislature did not intend to force multiple taxation on people whose vehicles are properly registered in other states. In this case, there is no indication that Bruns' vehicle is not properly registered in Illinois.

Footnote:     6 As noted above, the definition of domicile provided by our Supreme Court in Bayh is a place where a person has his true, fixed, permanent home and principal establishment, and to which place he has, whenever absent, the intention of returning. Id. at 1317.

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