ATTORNEY FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
BELLE T. CHOATE STEVE CARTER
ATTORNEY AT LAW ATTORNEY GENERAL OF INDIANA
Indianapolis, IN Indianapolis, IN
DAVID A. ARTHUR
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
ROBERT D. GRAY, )
v. ) Cause No. 49T10-9905-TA-100
INDIANA DEPARTMENT OF )
STATE REVENUE, )
ORDER ON RESPONDENTS MOTION FOR SUMMARY JUDGMENT
NOT FOR PUBLICATION
May 9, 2003
The Petitioner, Robert D. Gray, challenges the Indiana Department of State Revenues (Department)
finding that he owed a controlled substance excise tax (CSET) in the amount
The case is currently before the Court on the Departments
motion for summary judgment. The issue for review is whether Grays protection
against double jeopardy was violated by his CSET assessment. For the reasons
stated below, the Court GRANTS the Departments motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
In 1993, Gray possessed 89,600 grams of marijuana, and the State charged him
with, among other things, dealing in marijuana, a class C felony and dealing
in a narcotic drug, a class B felony. On May 2, 1993,
the Department issued an assessment for CSET in the amount of $7,168,000.
Gray pled guilty to dealing in marijuana and dealing in a narcotic drug
on February 14, 1994. On April 20, 1994, the trial court accepted
Grays guilty plea and entered judgment and sentence against him that same day.
Gray protested the CSET assessment, and the Department denied his protest on December
10, 1998. On May 5, 1999, Gray filed an original tax appeal.
On March 30, 2000, the Department moved for summary judgment. This
Court held a hearing on the Departments motion on July 17, 2000.
Additional facts will be supplied as needed.
ANALYSIS AND OPINION
Standard of Review
This Court reviews final determinations of the Department de novo. Ind. Code
§ 6-8.1-5-1(h). Thus, the Court is not bound by either the evidence
presented or issues raised at the administrative level. Clifft v. Indiana Dept
of Revenue, 748 N.E.2d 449, 452 (Ind. Tax Ct. 2001). Summary judgment
is only appropriate where 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); Allison Engine Co., Inc. v. Indiana Dept of State
Revenue, 744 N.E.2d 606, 608 (Ind. Tax Ct. 2001).
The issue is whether Grays protection against double jeopardy was violated by
his CSET assessment. The Department argues that, as a matter of law,
Grays CSET assessment does not violate his protection against double jeopardy because the
CSET assessment occurred before his criminal conviction. The Department is correct.
Our Supreme Court has held that because a CSET assessment is a punishment,
jeopardy for double jeopardy purposes attaches at the moment of assessment.
Hayse v. Indiana Dept of State Revenue, 660 N.E.2d 325, 326 (Ind.
1995); Clifft v. Indiana Dept of State Revenue, 660 N.E.2d 310, 313 (Ind.
1995) (citing Bryant v. Indiana Dept of State Revenue, 660 N.E.2d 290, 299
(Ind. 1995)). Here, jeopardy attached the first time in May 1993 when
the Department issued the CSET assessment to Gray. See Clifft, 660 N.E.2d
at 313. Jeopardy attached the second time in April 1994 when the
trial court accepted Grays guilty plea and sentenced him. See Ford v.
Indiana Dept of State Revenue, 779 N.E.2d 1274, 1276 (Ind. Tax Ct. 2002).
Because Grays CSET assessment was the first jeopardy to attach, it did
not violate his protection against double jeopardy. See Hayse, 660 N.E.2d at 326;
Clifft, 660 N.E.2d at 313; Ford, 779 N.E.2d at 1276. Accordingly, this
Court GRANTS the Departments motion for summary judgment.
For the aforementioned reasons, this Court GRANTS the Departments motion for summary judgment.
The parties shall bear their own costs.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment be and is entered
in favor of the Department and against Gray.
SO ORDERED this 9th day of May, 2003.
Thomas G. Fisher, Judge
Indiana Tax Court
Belle T. Choate
740 Market Square Center
151 North Delaware Street
Indianapolis, IN 46204
Attorney General of Indiana
By: David A. Arthur
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770
This amount includes the tax of $3,854,000 and a 100%
nonpayment penalty of $3,854,000, but it does not include statutory interest.
Footnote: At the time the Department issued the CSET jeopardy assessment
against Gray, the statutory tax for a gram of marijuana was $40 per
See Ind. Code § 6-7-3-6 (1993) (later amended in 1996).