ATTORNEYS FOR PETITONER: ATTORNEYS FOR RESPONDENT:
ROBERT W. LOSER, II STEVE CARTER
PATRICK M. O’BRIEN ATTORNEY GENERAL OF INDIANA
MICHAEL R. FRANCESCHINI Indianapolis, Indiana
WILLIAM S. AYERS
RUTH E. MYER
AYRES CARR & SULLIVAN, P.C.
Indianapolis, Indiana DAVID A. ARTHUR
Deputy Attorney General
Indianapolis, Indiana
                    
    
________________________________________________________________________

     IN THE INDIANA TAX COURT ________________________________________________________________________

JACK GRAY TRANSPORT, INC.                                                    )
             
                                                                                 
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et al.,                                                                           )    
    )
Petitioner,                                                                       )
                                                                                  )
v.                                                                                )          Cause No. 49T10-0002-TA-14
                                                                                  )
DEPARTMENT OF STATE                                                               )
REVENUE,                                                                          )

FISHER, J.
The petitioners, Jack Gray Transport, Inc., as well as thirty-eight other similarly situated parties See footnote (collectively Jack Gray) appeal the final determination of the Department of State Revenue (Department), whereby the Department declined to apply Indiana’s proportional use exemption (Exemption) to the motor fuel and surcharge taxes found at Ind. Code Ann. §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) (West 2000) for the second, third and fourth quarters of 1998, as well as for the first two quarters of 1999. In its original tax appeal, Jack Gray raises two issues:
Whether the Court should certify a class consisting of Jack Gray and an estimated 1536 other petitioners; See footnote and

Whether the Department acted contrary to law when it
failed to apply the exemptions to the quarters at issue.

    The Department has filed a Motion to Dismiss under Trial Rule 12(B)(6) (Motion) for failure to state a claim upon which relief can be granted. See footnote For the reasons explained below, the Court will not certify Jack Gray’s proposed class. However, the Court finds that the Department acted contrary to law when it failed to grant the exemption for the quarters at issue. Therefore, the Court denies the Department’s Motion and instead grants summary judgment in favor of Jack Gray.

There are questions of law or fact common to the class;
The claims or defenses of the representative parties are typical of the claims or defenses of the class; and

The representative parties will fairly and adequately protect the interests of the class.

Once this is established, a class must also meet one of the three subsections of T.R. 23(B). See footnote In this case, Jack Gray argues that its class meets the numerosity requirement of T.R. 23(A)(1) as well as satisfies the requirements of T.R. 23 (B)(3).
The Court notes that the numerosity prerequisite under T.R. 23(A)(1) is not simply a test of numbers. Connerwood Healthcare, Inc. v. Estate of Herron, 683 N.E.2d 1322, 1326 (Ind. Ct. App. 1997), distinguished on other grounds by Martin v. Amoco Oil Co., 696 N.E.2d 383, 385 n.3 (Ind. 1998). Instead, the Court’s inquiry focuses on whether the number of litigants would make joinder impracticable. Id. This inquiry requires the Court to consider both judicial economy and the ability of the class members to institute individual suits. Id. at 1326-27.
At the hearing, Jack Gray stated that it had the ability to join all potential claimants in one petition, rather than in a class action. (Hr’g Tr. at 65) (“We can certainly join in litigation every possible taxpayer if [each] choose[s] to come in.”) Thus, judicial economy is best served by having all claimants joined in one action. Connerwood Healthcare, Inc., 683 N.E.2d at 1326-27. In addition, the Department did not challenge the ability of any of the potential 1536 claimants to institute his own individual suit, based on the Department’s comments at the hearing. (Hr’g Tr. at 67) (“If that’s what it requires under the applicable law, yes, [The Department is] willing to [try 1536 cases].”) Considering Jack Gray’s expressed ability to join all potential claimants in one action and the Department’s willingness to try 1536 cases, the Court concludes that joinder of all potential members is not impracticable under the Indiana joinder rules. See footnote Cf. Connerwood, 683 N.E.2d at 1329. (finding that class certification was appropriate since elderly nursing home residents could not individually protect their own interests.) The Court holds that Jack Gray has not met the numerosity requirement of T.R. 23(A)(1) See footnote and DENIES Jack Gray’s class certification request.