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
    Indianapolis, IN
    

_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

ROBERT D. GRAY,                                                                  )
                                                                                      )
    Petitioner,                                                                       )
                                                                                      )
    v.                                                                                )   Cause No. 49T10-9905-TA-100
                                                                                      )
INDIANA DEPARTMENT OF                                                                 )
STATE REVENUE,                                                                        )
                                                                                      )
    Respondent.                                                                       )    
 ____________________________________________________________________________
 
ORDER ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________________

NOT FOR PUBLICATION
May 9, 2003

FISHER, J.

    The Petitioner, Robert D. Gray, challenges the Indiana Department of State Revenue’s (Department) finding that he owed a controlled substance excise tax (CSET) in the amount of $7,168,000. See footnote The case is currently before the Court on the Department’s motion for summary judgment. The issue for review is whether Gray’s protection against double jeopardy was violated by his CSET assessment. For the reasons stated below, the Court GRANTS the Department’s 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. See footnote 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 Gray’s 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 Department’s 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 Dep’t 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 Dep’t of State Revenue, 744 N.E.2d 606, 608 (Ind. Tax Ct. 2001).
Discussion

     The issue is whether Gray’s protection against double jeopardy was violated by his CSET assessment. The Department argues that, as a matter of law, Gray’s 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 Dep’t of State Revenue, 660 N.E.2d 325, 326 (Ind. 1995); Clifft v. Indiana Dep’t of State Revenue, 660 N.E.2d 310, 313 (Ind. 1995) (citing Bryant v. Indiana Dep’t 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 Gray’s guilty plea and sentenced him. See Ford v. Indiana Dep’t of State Revenue, 779 N.E.2d 1274, 1276 (Ind. Tax Ct. 2002). Because Gray’s 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 Department’s motion for summary judgment.
CONCLUSION

    For the aforementioned reasons, this Court GRANTS the Department’s 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

Distribution:

Belle T. Choate
740 Market Square Center
151 North Delaware Street
Indianapolis, IN 46204

Steve Carter
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


Footnote: 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 gram. See Ind. Code § 6-7-3-6 (1993) (later amended in 1996).