ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
INDIANA TAX COURT
NORMAN R. GARVIN STEVE CARTER
LYNNE D. LIDKE ATTORNEY GENERAL OF INDIANA
SCOPELITIS, GARVIN, LIGHT Indianapolis, IN
Indianapolis, IN JOEL SCHIFF
DEPUTY ATTORNEY GENERAL
HI-WAY DISPATCH, INC, )
v. ) Cause No. 49T10-9606-TA-63
INDIANA DEPARTMENT OF STATE )
ON APPEAL FROM A FINAL DETERMINATION OF THE INDIANA
DEPARTMENT OF STATE REVENUE
August 29, 2001
Petitioner Hi-Way Dispatch, Inc. (Hi-Way) challenges the final determination of the Indiana Department
of State Revenue (Department) denying Hi-Ways protest of motor carrier fuel tax assessed
against Hi-Way for the tax years 1992, 1993, and 1994.
In their cross-motions for summary judgment, the parties raise various issues, which the
Court restates as:
I. Whether the Department properly included within Hi-Ways total fuel consumed those gallons of
fuel consumed by Hi-Ways vehicles during idle time;
II. Whether genuine issues of material fact exist with respect to the affirmative defenses
of equitable estoppel and laches raised by Hi-Way, which thereby preclude summary judgment
on the issue of idle time fuel consumption;
III. Whether Hi-Way was entitled to the tax-paid credit for fuel purchased in Indiana
but consumed out-of-state in jurisdictions that were not members of the International Fuel
Tax Agreement (IFTA), where Hi-Way failed to provide evidence to the Department that
it had paid a gasoline, special fuel, or road tax with respect to
the fuel consumed to the non-IFTA member jurisdictions.
A. Whether Indiana Code § 6-6-4.1-6 conflicts with the provisions of IFTA and thus
cannot be used to deny Hi-Way the tax-paid credit for fuel consumed in
non-IFTA member jurisdictions;
See footnote and
Indiana Code § 6-6-4.1-6 discriminates against interstate commerce and is therefore unconstitutional.
FACTS AND PROCEDURAL HISTORY
For the reasons stated below, the Court DENIES Departments motion for summary
judgment solely on the basis of laches and DENIES the taxpayers partial motion
for summary judgment.
The following facts are undisputed. Hi-Way is a for-hire authorized motor carrier.
Its primary business facilities are located in Marion, Indiana. Hi-Way operates commercial
motor vehicles within and through Indiana.
The Department conducted an audit of Hi-Way regarding Hi-Ways liability for fuel taxes
collected under IFTA for the calendar years 1992, 1993, and 1994. In
its audit summary, dated October 11, 1995, the Department gave the following explanations
for adjusting Hi-Ways fuel tax liability: (1) the Department added back into Hi-Ways
total fuel figures those gallons deducted by Hi-Way for idle time and (2)
Hi-Way could not receive Indianas tax-paid credit for gallons consumed in but not
reported to non-IFTA jurisdictions (excess credit gallons). (Stipulation, Ex. A at 5.)
On November 21, 1995, the Department issued a proposed assessment against Hi-Way
for $83,901.35 in fuel taxes, penalty, and interest.
Hi-Way protested the proposed assessment, and the Department conducted a hearing on the
protest on February 15, 1996. On April 15, 1996, the Department issued
a letter of finding. The letter of finding granted Hi-Ways protest of
the proposed ten percent penalty but denied the protest in all other respects.
Thereafter, the Department requested that Hi-Way pay a total of $80,354.30 in
taxes and interest. On April 26, 1996, Hi-Way requested a rehearing of
its protest. By a letter dated May 23, 1996, the Department again
denied Hi-Ways protest.
Hi-Way filed this original tax appeal on June 13, 1996. On March
7, 1997, the Department filed a motion for summary judgment. On this
same date, Hi-Way filed a motion for partial summary judgment. The Court
conducted a hearing on these cross-motions on May 30, 1997. The Court
then took the matter under advisement.
ANALYSIS AND OPINION
Standard of Review
Summary judgment is appropriate only when no genuine issues of material fact exist
and a party is entitled to judgment as a matter of law.
Ind. Trial R. 56(C); Roehl Transp. v. Indiana Dept of State Revenue, 653
N.E.2d 539, 541 (Ind. Tax Ct. 1995). Cross motions for summary judgment
do not alter this standard. Id.
The Court first reviews the relevant statutes and provisions from IFTA prior to
discussing the issues in this case.
Indianas Road & Pump Taxes
A. Road Tax
The motor carrier fuel tax is imposed on the consumption of motor fuel
by a carrier in its operations on highways in Indiana.
§ 6-6-4.1-4(a). See also Ind. Admin.
Code tit. 45, r. 13-4-1 to -7 (2001) (addressing imposition and calculation of
motor carrier fuel tax). The purpose of the motor carrier fuel tax
is to charge motor carriers for the use of the public roads in
Indiana. Area Interstate Trucking, Inc. v. Indiana Dept of State Revenue, 605
N.E.2d 272, 277 (Ind. Tax Ct. 1992), cert. denied, 510 U.S. 864 (1993).
Indiana Code § 6-6-4.1-4(a) states that the rate for the motor fuel
tax is the same rate per gallon as the rate per gallon at
which special fuel is taxed, which is sixteen cents per gallon. See
Ind. Code § 6-6-2.5-28(a). For the purpose of this opinion, the motor
carrier fuel tax will be called the road tax. In addition to
the road tax, Indiana Code § 6-6-4.1-4.5(a) imposes an eleven-cent per gallon surcharge
tax on motor fuel consumed by carriers operating on Indianas highways. Thus,
combining the road tax with the surcharge tax, carriers effectively pay twenty-seven cents
per gallon on motor fuel consumed in their operations on Indianas highways.
The formula for calculating the amount of fuel consumed on Indianas highways is
Total amount of Motor Fuel Total Amount of Miles B. Pump Taxes
Consumed in Carriers Entire Traveled on Highways In
Operations Within and
X Indiana _
Without Indiana Total Number of Miles
Traveled Within and
Ind. Code § 6-6-4.1-4(b). See also Roehl Transp., 653 N.E.2d at 545
(citing Area Interstate Trucking, 605 N.E.2d at 276). A carriers tax liability
is then calculated by multiplying the tax rate (i.e., twenty-seven cents per gallon)
by the amount of fuel consumed by the carrier in its operations on
Indiana highways. Ind. Code § 6-6-4.1-4(c). However, the gallons for which
the carrier has paid the gasoline or special fuel taxes (i.e., the pump
taxes) imposed under Indiana Code §§ 6-6-1.1 or 6-6-2.5, see infra, are not
included within this calculation. Id. See also Area Interstate Trucking, 605
N.E.2d at 277 n.9 (noting that motor fuel upon which pump taxes are
paid is not included in amount of fuel subject to the tax).
Carriers are obligated to pay the road tax and surcharge tax quarterly.
Ind. Code §§ 6-6-4.1-4(a) & 4.5(a). Moreover, they must maintain certain books
and records with respect to the motor fuel they purchase and consume.
Ind. Code § 6-8.1-5-4. Indiana Code § 6-6-4.1-20 subjects carriers to penalties
if they do not properly maintain the books and records required by Indiana
Code § 6-8.1-5.
The term pump taxes refers to the gasoline and special fuel taxes imposed
by Indiana Code §§ 6-6-1.1-201 and 6-6-2.5-28 respectively. Gasoline includes, among other
things, all products commonly or commercially known or sold as gasoline . .
. . Indiana Code § 6-6-1.1-103(g)(1). Indiana Code § 6-6-1.1-201 provides
that a license tax of fifteen cents ($0.15) per gallon is imposed on
the use of all gasoline used in Indiana, except as otherwise provided by
[Ind. Code § 6-6-1.1]. Distributors of gasoline initially pay the tax, which
is then passed along to the purchaser. Ind. Code § 6-6-1.1-201.
Special fuel is all combustible gases and liquids that are: (1) suitable
for the generation of power in an internal combustion engine or motor; or
(2) used exclusively for heating, industrial, or farm purposes other than for the
operation of a motor vehicle. Ind. Code § 6-6-2.5-22. Indiana Code
§ 6-6-2.5-28(a) imposes a license tax of sixteen cents ($0.16) per gallon .
. . on all special fuel sold or used in producing or generating
power for propelling motor vehicles . . . . Ind. Code §
6-6-2.5-28(a). The tax is imposed at the time the special fuel enters
Indiana and is collected and remitted to the state by the supplier who
receives it; the supplier who sells the special fuel must then collect the
tax from the purchaser of the fuel. Ind. Code §§ 6-6-2.5-28 &
The road tax is the functional compliment to the pump taxes. Area
Interstate Trucking, 605 N.E.2d at 277. Through the road tax, motor carriers
are prevented from purchasing fuel outside Indiana and then operating tax-free on the
states roads. Id. Thus, regardless of where carriers purchase fuel, they
are charged for their use of Indianas roads. Id.
The connection between the road and pump taxes is further evidenced by the
credit permitted by Indiana Code § 6-6-4.1-6(a). This section provides in part:
A carrier is entitled to a credit against the [road tax] if the
carrier, or a lessor operating under the carriers annual permit has:
(1) paid the [gasoline or special fuel] tax . . . on motor
fuel purchased in Indiana;
(2) consumed the motor fuel outside Indiana; and
(3) paid a gasoline, special fuel, or road tax with respect to the
fuel in one (1) or more other states or jurisdictions.
The amount of this tax-paid fuel credit is equal to the amount of
the pump tax paid. Ind. Code § 6-6-4.1-6(b). To qualify for
the credit, the carrier shall submit any evidence required by the department of
[the carriers] payment of the [gasoline or special fuel tax]. Ind. Code
As noted supra, the road tax calculation formula excludes from its amount of
motor fuel consumed total those gallons for which a carrier has already paid
either of the pump taxes. Ind. Code § 6-6-4.1-4(c). Because these
gallons are never part of the formula, they are never taxed. Thus,
carriers who pay a pump tax and then consume the fuel purchased on
Indianas highways pay either the road tax or the pump tax on those
gallons, but not both.
The tax-paid fuel credit permits carriers who purchase fuel within Indiana but consume
the fuel out-of-state to receive the same benefit. In general, a credit
is an allowance against the tax itself. Graybar Elec. Co. v. State
Bd. of Tax Commrs, 723 N.E.2d 491, 495 (Ind. Tax Ct. 2000) (quoting
Wests Tax Law Dictionary 193 (1995)). The tax-paid fuel credit is an
allowance against a carriers Indiana road tax liability.
See footnote It lowers a carriers
road tax liability where the taxpayer can show, via the evidence required by
the Department, that it has paid the pump tax. Without the
credit, a taxpayer who purchases fuel within Indiana (and pays a pump tax
on the fuel) and then consumes it out-of-state would be subjected to Indianas
and to another jurisdictions gasoline, special fuel, or road tax.
The credit prevents this double taxation; a carrier essentially pays either Indianas pump
tax or another states road tax, but not both.
Taxpayers purchasing fuel within Indiana are basically treated the same with respect to
their fuel tax liability regardless of whether they consume the fuel within or
without Indiana. The complimentary nature of the road and pump taxes ensures
this result. The road tax is designed to prevent a carrier from
having a free ride on Indianas highways by purchasing fuel tax out-of-state and
then consuming the fuel in state. In comparison, the tax-paid fuel credit
prevents the double taxation of carriers choosing to purchase fuel in Indiana (and
thereby pay a pump tax) and then consume the fuel outside of the
state. The road and pump taxes work together to permit taxation of
carriers consuming fuel on Indianas highways without punishing carriers for consuming fuel beyond
the states borders. In short, they are two means to the same
As recently observed by the Indiana Court of Appeals, IFTA is a multi-jurisdictional
agreement that is intended to encourage cooperation in the administration and collection of
motor fuel use tax.
Owner-Operator Indep. Assn v. Department of Revenue, 725
N.E.2d 891, 892 (Ind. Ct. App. 2000), trans. denied; see also
Roehl Trans., Inc. v. Wisconsin Div. of Hrgs and Appeals, 570 N.W.2d 864,
867 (Wis. Ct. App. 1997) (noting that IFTA is designed to facilitate the
collection of state fuel taxes from interstate motor carriers). This statement mirrors
Article I(C) of IFTA, which provides [i]t is the purpose of [IFTA] to
enable participating jurisdictions to act cooperatively and provide mutual assistance in the administration
and collection of motor fuels use taxes. IFTA Article I(C). Additionally,
IFTA Article I(B) states [i]t is the purpose of [IFTA] to promote and
encourage the fullest and most efficient possible use of the highway system by
making uniform the administration of motor fuels use taxation laws with respect to
motor vehicles operated in multiple member jurisdictions. IFTA Article I(B). IFTA
enables carriers to file a consolidated tax return in a carriers base jurisdiction;
the base jurisdiction, upon collection of the tax, distributes the revenue to those
other jurisdictions in which the carrier operates.
Owner-Operator Indep. Assn, 725 N.E.2d
Indiana became a member jurisdiction of IFTA in 1991, as authorized by Indiana
Code § 6-8.1-3-14(a) & (b). The Department is permitted to adopt rules
to carry out and enforce IFTA.
Ind. Code § 6-8.1-3-14(c). Further,
Indiana Code § 6-8.1-3-14(d) provides that if the provisions set forth in [IFTA]
are different from provisions prescribed by an Indiana Statute, then the [IFTA] provisions
prevail. Ind. Code § 6-8.1-3-14(d). During the tax years in question,
not all states were member jurisdictions of IFTA.
Under IFTA, the taxable event is the consumption of motor fuels used in
the propulsion of qualified motor vehicles. IFTA Article III(A). However, IFTA
excludes fuel consumed that is exempt from taxation by a jurisdiction. Id.
Further, IFTA provides that [a]ll motor fuel acquired that is normally subject
to consumption tax is taxable unless proof to the contrary is provided by
the licensee. IFTA Article III(C).
IFTA permits member jurisdictions to tax the retail sale of fuel delivered into
the fuel tank that propels the motor vehicle and allows member jurisdictions to
require tax payments on fuel delivered into bulk storage or withdrawn from bulk
storage. IFTA Articles VII(A) & (D). These purchases are referred to
as tax-paid purchases. IFTA Article VII(D). Per Article XIII(A), [a] licensee
shall receive full credit or refund for tax-paid fuel used outside the jurisdiction
where the fuel was purchased. IFTA Article XIII(A). To obtain credit
for these tax-paid purchases, a carrier must retain a receipt or credit card
receipt as evidence that the tax was paid directly to the applicable jurisdiction
or at the pump.
IFTA Article VII(B). However, [n]o member jurisdiction
shall require evidence of such purchases beyond what is specified in the IFTA
Procedures Manual. Id.
IFTA provides for the adoption of a Procedures Manual to help administer its
requirements. See IFTA Article XVII(E) (Adopted procedures shall become part of [IFTA]
and shall be placed in writing in the IFTA Procedures Manual.). The
IFTA Manual reiterates the need for evidence that fuel tax has been paid
in order for a carrier to receive credit for a tax-paid purchase.
IFTA Manual II(A). It lists the minimum requirements that a receipt or
invoice must be included to be deemed acceptable. IFTA Manual II(B).
The Manual also states that each member jurisdiction will allow full credit for
tax[-]paid purchases. IFTA Manual V(A)(6).
I. Idle Time Reduction
The Department argues that it correctly determined that fuel consumed during a commercial
motor vehicles idle time must be included as part of a carriers total
fuel consumed figure for the purpose of determining its motor carrier fuel tax
liability. Idle time refers to the time when a motor vehicles
engine is on, but the vehicle is not moving, so that consumption of
fuel is occurring while the vehicle remains stationary.
According to the
Department, a plain reading of Indiana Code § 6-6-4.1-4 does not allow the
removal of idle time from the road tax calculation formula. However, IFTA
defines the taxable event under its provisions to be the consumption of motor
fuels used in the propulsion of qualified motor vehicles. IFTA Article III(A)
(emphasis added). Arguably, idle time does not involve the propulsion of a
motor vehicle, so that fuel consumed during idling may not factor into a
carriers road tax liability under IFTA.
Per Indiana Code § 6-6-4.1-4, Indiana imposes the road tax upon the consumption
of motor fuel by a carrier in its operations on the states highways.
I.C. § 6-6-4.1-4. This Court, in Roehl Transport v. Indiana Department
of State Revenue, held that all fuel consumed by a commercial motor vehicle,
regardless of where and how it is consumed, is to be included in
the formula for purposes of calculating motor carrier fuel tax liability. Roehl
Transp., 653 N.E.2d at 544. This holding included fuel consumed during a
vehicles idle time activities. See id. Thus, under Indiana law, the
Department correctly decided that Hi-Way was required to report the fuel consumed while
its vehicles idled. See also Ind. Admin. Code tit. 45, r. 13-4-4
(2001) (providing example where motor fuel consumed by a vehicle idling as it
is unloaded has been consumed for the purpose of propelling the vehicle along
The issue, however, is whether Indiana Code § 6-6-4.1-4 is broader than and
therefore in conflict with IFTA Article III(A). If so, arguably, this tax
imposition statute would be trumped by IFTA to the extent Indiana does not
exclude gallons consumed during idle time (i.e., non-propulsion) activities from road tax liability.
See Ind. Code § 6-8.1-3-14(d).
IFTA imposes no taxes. Rather, its member jurisdictions impose the motor fuels
taxes, and IFTA permits the uniform administration and collection of those taxes as
they pertain to multi-state carriers. Moreover, IFTA provides no exemptions from what
qualifies as taxable fuel except for those exemptions permitted by member jurisdictions.
IFTA Article III(A). In short, member jurisdictions determine the scope of their
road taxes, while IFTA governs how the jurisdictions administer the taxes. The
Court views the road tax imposition language and the IFTA taxable event language
in light of this relationship. Cf. Uniden Am. Corp. v. Indiana Dept of
State Revenue, 718 N.E.2d 821, 828 (Ind. Tax Ct. 1999) (Statutes applicable to
the same subject matter should be construed in harmony with one another.) (citation
and internal quotation marks omitted).
As used in IFTA Article III(A), the modifying phrase used in the
propulsion does not prohibit a jurisdiction from imposing a tax on fuel consumed
in a carriers operations on the jurisdictions highways. The phrase explains the
general use for which fuel must be consumed under IFTA, not the fuels
specific use at any given time. Cf. Roehl Trans., Inc., 570 N.W.2d
at 870. This interpretation is consistent with the Departments presumption that all
fuel consumed by a motor vehicle is solely for the purpose of propelling
the vehicle along highways. Ind. Admin. Code tit. 45, r. 13-4-4 (2001).
The Court will not overemphasize a strict, literal or selective reading of
the phrase used in the propulsion; to do so would undermine the intended
relationship between Indiana Code § 6-6-4.1-4 and IFTA, i.e., the former imposes a
road tax and the latter administers it. See Roehl Trans., 653 N.E.2d
at 542; Department of State Revenue, Inheritance Tax Div. v. Estate of Hardy,
703 N.E.2d 705, 710 (Ind. Tax Ct. 1998) (concluding any interpretation of belongs
to, as it is used in [Indiana Code §] 6-4.1-2-5, must take into
account [the General Assemblys] obvious legislative intent.); Mynsberge v. Department of State Revenue,
716 N.E.2d 629, 633 (Ind. Tax Ct. 1999) (observing legislative intent as ascertained
from an act or statutory scheme as a whole will prevail over a
strict literal reading of any one particular statutory provision).
The Court also observes that, if IFTA were interpreted as excluding fuel consumed
while idling, it, in effect, would be authorizing another exemption to Indianas road
tax. This result would render meaningless IFTAs adherence to only the exemptions
granted by member jurisdictions. The Court will not interpret IFTA in a
manner that renders part of it meaningless or absurd. See Uniden Am.,
718 N.E.2d at 828; Dalton Foundries, Inc. v. State Bd. of Tax Commrs,
653 N.E.2d 548, 554-55 (Ind. Tax Ct. 1995).
The Court concludes that there is no conflict between IFTA Article III(A) and
Indiana Code § 6-6-4.1-4. Therefore, as a matter of law, the Department
properly concluded that Hi-Way could not reduce its total fuel consumed figures by
the number of gallons used by its vehicles while they idled.
II. Affirmative Defenses
In response to the Departments motion for summary judgment,
See footnote Hi-Way maintains that the
idle time issue is inappropriate for summary judgment because there is conflicting evidence
of record that creates issues of material fact . . . as to
whether the Department is equitably estopped to deny Hi-Way an adjustment for [idle
time] activity and/or whether the Departments denial of the adjustment is barred or
limited by the doctrine of laches. (Petr Oppn Br. at 7.)
Hi-Ways argument is based upon the depositions of Frank A. Bove and
James Poe. Bove was President of Hi-Way during the tax years in
question. From 1992 to 1995, Poe served as the Deputy Administrator for
the Departments Returns Processing Division. From 1984 to 1992, Poe was the
Administrator of the Departments Special Tax Division. In that capacity, Poe was
responsible for the auditing of the road tax.
The Court will consider Hi-Ways affirmative defenses of equitable estoppel and laches in
turn. See Ind. Trial Rule 8(C). First, however, the Court notes
that [i]n a summary judgment proceeding . . . the burden of establishing
the existence of material affirmative defenses is on the party raising such defenses.
Paint Shuttle, Inc. v. Continental Cas. Co., 733 N.E.2d 513, 519 (Ind.
Ct. App. 2000), trans. denied; see also Woods v. Harris, 600 N.E.2d 163,
165 (Ind. Ct. App. 1992). To meet this burden, the party asserting
the affirmative defenses must designate evidence demonstrating genuine issues of material fact exist
as to the elements of the affirmative defenses. Huff v. Langman, 646
N.E.2d 730, 732 (Ind. Ct. App. 1995). Cf. Northern Ind. Pub. Serv. Co.
v. Stokes, 595 N.E.2d 275, 278 (Ind. Ct. App. 1992) (stating that defendants
were entitled to summary judgment if undisputed facts without inference favorable to [plaintiff]
established each element of equitable estoppel).
A. Equitable Estoppel
Equitable estoppel is a doctrine by which a person may be precluded by
his act or conduct, or silence when it is his duty to speak,
from asserting a right which he otherwise would have had. Blacks Law
Dictionary 373 (6th ed. abr. 1991). The elements of equitable estoppel are:
(1) a representation or concealment of material fact; (2) made by a
person with knowledge of the fact and with the intention that the other
party act upon it; (3) to a party ignorant of the fact; (4)
which induces the other party to rely or act upon it to his
detriment. Salin Bancshares Inv. v. Indiana Dept of Revenue, 744 N.E.2d 588,
592 (Ind. Tax Ct. 2000) (citing Wabash Grain, Inc. v. Smith, 700 N.E.2d
234, 237 (Ind. Ct. App. 1998), trans. denied)).
Equitable estoppel cannot ordinarily be applied against government entities. Metropolitan Dev. Commn
of Marion County, 727 N.E.2d 742, 752 (Ind. Ct. App. 2000), trans. denied;
accord Hunt Corp. v. Department of State Revenue, 709 N.E.2d 766, 781 (Ind.
Tax Ct. 1999). The reason for this general rule is two-fold.
Samplawski v. City of Portage, 512 N.E.2d 456, 459 (Ind. Ct. App. 1987).
If the government could be estopped, then dishonest, incompetent or negligent public
officials could damage the interests of the public. At the same time,
if the government were bound by its employees unauthorized representations, then government itself,
could be precluded from functioning. Id. (citing Gressley v. California, 609 F.2d
1265 (7th Cir. 1979)).
However, application of the doctrine against the government is not absolutely prohibited.
U.S. Outdoor Advertising, Inc. v. Indiana Dept of Transp., 714 N.E.2d 1244, 1259
(Ind. Ct. App. 1999), trans. denied. The exception to the general rule
exists wherethe public interest would be threatened by the governments conduct.
Dev. Commn, 727 N.E.2d at 742. What constitutes the public interest, however,
is not well defined. Samplawski, 512 N.E.2d at 459 (noting that decisions
have done little to define when it is that public policy favors rather
than opposes the application of estoppel). To succeed, the party claiming
estoppel must identify an articulable public policy reason which the court determines outweighs
the public policy that supports denying estoppel. Id.
Hi-Way must identify an important public policy reason for disregarding the general rule
that government entities cannot be estopped. It has not done so in
the present case. Hi-Way acknowledges that equitable estoppel is not favored under
Indiana law but neither identifies nor articulates a reason to ignore the general
rule, other than to say that equitable estoppel is nevertheless a valid defense
to Department action if all of its elements can be shown by the
taxpayer. (Petr Oppn Br. at 18.) It is true that Hi-Way
must demonstrate how the elements of estoppel are met; however, that alone is
insufficient. Hi-Way must offer a public policy reason favoring estoppel that is
counter and outweigh the general rule. Having offered no such reasoning, the
Court concludes that the Department is not estopped from rejecting Hi-Ways claim on
the idle time issue. See U.S. Outdoor Advertising, 714 N.E.2d at 1260
(stating that, where company failed to show how the application of equitable estoppel
against [state] would serve the public interest, the Court could find no compelling
reason to reverse administrative law judges determination); Fraternal Order of Eagles, Lodge No.
255 v. Indiana State Bd. of Tax Commrs, 512 N.E.2d 491, 495 (Ind.
Tax Ct. 1987) (observing that petitioner had neither shown nor argued that an
exception to the general rule [against applying estoppel against the state] should be
made and that to do so would be in the public interest), revd
on other grounds, 521 N.E.2d 678 (Ind. 1988); see also Switzerland County Sch.
Corp. v. Sartori, 442 N.E.2d 702, 704-05 (Ind. Ct. App. 1982) (noting that
application of equitable estoppel would circumvent [a] strong public policy and obvious legislative
intent and finding the expenditure of public funds in the name of equitable
estoppel in the instant case to be contrary to public interest).
Laches is an equitable defense [that] may be raised to stop a person
from asserting a claim that he would normally be entitled to assert.
Storm, Inc. v. Indiana Dept of State Revenue, 663 N.E.2d 552, 557 (Ind.
Tax Ct. 1996) (citing Haas v. Holder, 218 Ind. 263, 32 N.E.2d 590
(Ind. 1941)). The rationale behind the doctrine of laches is that a
person who, for an unreasonable length of time, has neglected to assert a
claim against another waives the right to assert his claim when this delay
prejudices the person against whom he would assert it. Id. The
defense of laches has three elements: (1) inexcusable delay in asserting a
right; (2) an implied waiver arising from knowing acquiescence in existing conditions; and
(3) circumstances resulting in prejudice to the adverse party. Id.; accord Beiger
Heritage Corp. v. Kilbey, 676 N.E.2d 784, 789 (Ind. Ct. App. 1997).
To preclude summary judgment, Hi-Way must establish that a genuine issue of material
fact exists as to the elements of laches. It has done so.
The crux of Hi-Ways argument is that a discussion between Bove and
Poe regarding Hi-Ways use of equipment to measure its vehicles idle time activities
and the corresponding reduction of Hi-Ways total fuel consumption figures by the gallons
used during idle time shows that there is a genuine issue of material
fact. Bove contends that he met with Poe, who gave him the
okay to exclude idle time fuel. (Bove Dep. at 28.) According
to Bove, Poe requested that Hi-Way send him a letter with their first
fuel tax filing explaining its method. (Bove Dep. at 28.) Bove
asserted that Poes assurance was the sole reason that Hi-Way excluded the idle
time fuel. (Bove Dep. at 45.) A letter from Hi-Way to
Poe, dated January 17, 1989, states that it is enclosing its fourth quarter
fuel tax report for 1988 and that it is doing so because it
was the first time [Hi-Way had] taken into consideration idle time. You
have had some discussions with Frank Bove concerning idle time. We are
hopeful that the enclosed method will meet with your approval. (Poe Dep.,
Ex. 1.) In contrast to Boves statements, Poe indicated that he only
told Bove that the Department would consider allowing reductions for idle time fuel
consumption. (Poe Dep. at 19.) Poe maintained that the Departments problem
with allowing the reductions at the time was how to be fair to
all the taxpayers in the State of Indiana. (Poe Dep. at 19.)
Poe never responded in writing to Hi-Ways letter but may have responded
orally. (Poe Dep. at 22-23.)
Essentially, Hi-Way argues that the Department, via Poe, approved of and acquiesced to
Hi-Ways reductions for idle time fuel consumption. Further, Hi-Way maintains that it
was inexcusable for the Department to wait almost seven full years (the time
between the letter to Poe and the Departments audit of Hi-Way) to enforce
its right to collect taxes on fuel consumed during idling activities. This
delay, Hi-Way asserts, prejudiced it because, had the Department sought to enforce its
rights at an earlier time, Hi-Way would not have excluded the idle time
fuel from its consumption figures for the tax years in question, would have
paid the tax on that fuel, and would not be subject to interest
payments now. Hi-Way posits that [a]t the very least, . . .
the Departments excessive and unreasonable delay in asserting its claim should preclude it
from imposing interest. (Petr Oppn Br. at 24.)
Based upon the evidence presented, the Court concludes that Hi-Way has established a
material issue of fact as to whether the Department engaged in inexcusable delay
in enforcing its right to collect taxes on idle time consumption, whether the
Department acquiesced to Hi-Ways idle time reductions, and whether Hi-Way was prejudiced by
the Departments inaction. See Habig v. Bruning, 613 N.E.2d 61, 65 (Ind.
Ct. App. 1993), trans. denied (concluding that summary judgment was improper where several
issues of fact must be resolved in order to determine whether the doctrine
of laches may properly be invoked);
See footnote c
f. Storm, 663 N.E.2d at 558 (holding
that laches did not bar Department from collecting special fuels taxes owed by
taxpayer, where no inexcusable delay by the Department in assessing taxpayer following audit
was shown). Therefore, whether laches bars the Departments collection of the road
tax on (and/or the accrued interest associated with) Hi-Ways use of fuel consumed
during idling activities during the tax years is a question that this Court
must consider in its role as trier of fact. Thus, summary judgment
on the issue of laches is DENIED. See Beiger Heritage, 676 N.E.2d
at 789 (reversing summary judgment in breach of contract action, where partys affidavits
raised material factual issue with respect to laches claim, which entitled non-moving party
to submit their causes to the trier of fact).
III. Tax-Paid Fuel Credit
Hi-Way contends that, as a matter of law, it was entitled to full
credit for tax-paid fuel for the fuel it purchased in Indiana (and upon
which it paid a pump tax) but consumed in a non-IFTA jurisdiction.
The Departments audit report explained why it denied Hi-Way credit for the fuel
consumed in non-IFTA jurisdictions:
[Indiana Code § 6-6-4.1-6(a)(3)] mandates that in order for a taxpayer to receive
credit for tax paid fuel purchased in Indiana yet consumed in another state
or jurisdiction, a similar fuel tax must be remitted to that state or
jurisdiction. Such gallons determined not to have been reported to those jurisdictions
are termed excess credit gallons and are disallowed for purposes of Indiana tax
paid credit. Upon review of other non-IFTA states fuel tax reports, it
was discovered that disallowed excess credit gallons were present in each quarter of
the audit period and are represented in [the Departments] adjustment.
(Stipulation, Ex. A at 5.) Hi-Way proposes two alternative arguments against the
Departments application of Indiana Code § 6-6-4.1-6 to deny them full credit for
tax-paid fuel. Hi-Way first asserts that Section 6(a)(3) violates the plain, unambiguous,
and controlling terms of IFTA and is therefore unlawful and unenforceable against Hi-Way
pursuant to Ind. Code § 6-8.1-3-14. (Petr Br. at 5.) Second,
according to Hi-Way, application of Section 6(a)(3) is unconstitutional under the Commerce Clause
of the U.S. Constitution. (Petr Br. at 5-6.) A. IFTA Violation
Hi-Way maintains that IFTA requires Indiana to afford it full credit for all
tax-paid fuel purchased within the state even if Hi-Way consumed the fuel in
a non-member jurisdiction. To support its argument Hi-Way relies upon IFTA Article
XIII(A), which states that a licensee shall receive full credit or refund for
tax-paid fuel used outside the jurisdiction where the fuel was purchased. Hi-Way
argues that Indiana cannot use Section 6(a)(3) to deny it this full credit
required by IFTA because Section 6(a)(3) and IFTA are in conflict, and therefore,
IFTA trumps. Section 6(a)(3) requires a carrier to show that it has
paid a gasoline, special fuel, or road tax on fuel purchased in Indiana
but consumed out-of-state in order to receive the tax-paid fuel credit for the
pump tax paid to Indiana. As noted supra, Section I, if an
Indiana statute is in conflict with an IFTA Article (or the IFTA Procedures
Manual, which is deemed part of IFTA), the IFTA provision may trump Indianas
statute. Ind. Code § 6-8.1-3-14. Specifically, it is Hi-Ways position that
neither IFTA nor the IFTA Procedures Manual authorizes a member jurisdiction to require
proof that tax-paid fuel was also taxed upon use outside the [jurisdiction] in
which it was purchased. (Petr Br. at 10.) Hi-Way contends that
because IFTA does not give Indiana the authority to require proof that a
tax has been paid, there is a conflict with Section 6(a)(3).
IFTA is designed to facilitate the efficient administration and collection of motor fuels
use taxes in member jurisdictions. During the tax years in question, not
all of the forty-eight contiguous states belonged to IFTA. See supra n.10.
IFTA Article VII permits member jurisdictions to impose a pump tax on
retail sales of motor fuels and permits credits for the pump tax.
IFTA Article XIII(A) states that a licensee shall receive full credit or refund
for tax-paid fuel used outside the jurisdiction where the fuel was purchased.
In addition, the IFTA Procedures Manual V(A)(6) provides that [e]ach jurisdiction will allow
full credit for tax paid purchases. However, the last sentence of IFTA
Article XIII(A) states that the base jurisdiction shall allow credits and issue refunds
for all of its licensees on behalf of all member jurisdictions. IFTA
Article XIII(A) (emphasis added). Further, the Court notes again that one of
IFTAs stated purposes is to make uniform the administration of motor fuels use
taxation laws with respect to motor vehicles operated in multiple member jurisdictions.
IFTA Article I(B) (emphasis added). Another stated purpose is to enable participating
jurisdictions to act cooperatively and provide mutual assistance in the administration and collection
of motor fuels use taxes. IFTA Article I(C).
From these provisions, the Court concludes that IFTA requires that licensees receive full
credits or refunds for tax-paid fuel purchases, only where the fuel was purchased
in one member jurisdiction and consumed in another member jurisdiction.
See footnote In
other words, IFTA does not govern credits or refunds for tax-paid fuel purchases
in non-member jurisdictions. IFTA is not applicable here because Hi-Way is seeking
a full credit or refund for tax paid fuel purchases in non-member jurisdictions.
Because IFTA does not govern non-member jurisdictions, there is no conflict between
IFTA and Section 6(a)(3) here. Therefore, the Department properly looked to Section
6(a)(3), not IFTA to determine whether Hi-Way was entitled to a credit against
the road tax for fuel consumed in non-member jurisdictions. Consequently, Hi-Way was
not entitled to full credit under IFTA for tax-paid fuel consumed in non-member
B. Commerce Clause Violation
Hi-Way argues that application of Section 6(a)(3) violates the Commerce Clause of the
United States Constitution, art. I, § 8, cl. 3, which provides in part
that Congress shall have the power [t]o regulate Commerce . . . among
the several States.
U.S. Const. art. I, § 8, cl. 3.
It is designed to create an area of free trade among the states.
Bulkmatic Transp. Co. v. Dept of State Revenue, 691 N.E.2d 1371, 1374 (Ind.
Tax Ct. 1998) (Bulkmatic II) (citing Boston Stock Exch. v. New York State
Tax Commn, 429 U.S. 318, 328, 97 S. Ct. 599, 606 (1977)).
By its terms, the Commerce Clause is only an authorization for Congress to
regulate commerce. Bulkmatic Transp. Co. v. Department of State Revenue, 715 N.E.2d
26, 29 (Ind. Tax Ct. 1999) (Bulkmatic III). However, there
is a negative or dormant implication of the Commerce Clause that prohibits taxation
by a state in a manner that discriminates against or unduly burdens interstate
commerce. Bulkmatic II, 691 at 1374 (citing General Motors Corp. v. Tracy,
519 U.S. 278, 117 S. Ct. 811 (1997)). Whether a state tax
unconstitutionally discriminates against or burdens interstate commerce will be considered by application of
the Supreme Courts four-part test as set forth in Complete Auto Transit, Inc.
v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 1079 (1977), rehg
denied. The Complete Auto test provides that a state tax will survive
a Commerce Clause challenge if the tax (1) is imposed on an activity
with a substantial nexus with the taxing state, (2) is fairly apportioned, (3)
does not discriminate against interstate commerce in favor of local commerce, and (4)
is fairly related to services the state provides. Indiana-Ky. Elec. Corp. v.
Indiana Dept of State Revenue, 598 N.E.2d 647, 656 (Ind. Tax Ct. 1992).
In examining a state tax, a court must look not only to
the tax, but also to any credits, exemptions or exclusions with that tax.
Bulkmatic III, 715 N.E.2d at 29 (citing Maryland v. Louisiana, 451 U.S.
725, 101 S. Ct. 2114 (1981)).
Hi-Way attacks the fair apportionment and discrimination parts of the Complete Auto test
with respect to application of Section 6(a)(3). The Court limits its review
to these two parts of the Complete Auto test.
1. Fair Apportionment
Hi-Way contends that Section 6(a)(3) violates the fair apportionment requirement because it applies
only to the out-of-state activities of an interstate carrier. It is Hi-Ways
position that denial of the tax-paid fuel credit requires it to pay additional
tax on fuel used outside of Indiana, which effectively taxes the out-of-state component
of an interstate motor carriers operations. (Petr Br. at 15.) To
determine whether a tax is fairly apportioned, the Court examines whether it is
internally and externally consistent. Indiana-Ky. Elect., 598 N.E.2d at 656 (citing Goldberg
v. Sweet, 488 U.S. 252, 261, 109 S. Ct. 582, 588 (1989)).
Hi-Way asserts that the application of Section 6(a)(3) only fails to meet the
test for external consistency. External consistency . . . looks . .
. to the economic justification for the States claim upon the value taxed,
to discover whether a States tax reaches beyond that portion of value that
is fairly attributable to economic activity within the taxing State. Oklahoma Tax
Commn v. Jefferson Lines, Inc., 514 U.S. 175, 185, 115 S. Ct. 1331,
1338 (1995), rehg denied (citations omitted). The external inconsistency test is a
practical inquiry. Indiana-Ky., 598 N.E.2d at 658 (citing Goldberg, 488 U.S. at
264, 109 S. Ct. at 619.) Hi-Way maintains that non-payment of tax
to another state . . . does not justify imposition of an additional
. . . tax payable to Indiana when the taxed event (out of
state fuel use) bears no relation to the taxpayers activity in Indiana.
(Petr Br. at 17.)
Hi-Way is incorrect. Hi-Way was denied a credit against the road tax,
which had the practical effect of increasing its road tax liability to Indiana.
The taxed event is not, as Hi-Way asserts, its out-of-state fuel use;
rather, it is the consumption of fuel upon Indianas highways. Thus, Indiana
taxes only that activity occurring within its borders. As the Court discussed
supra, slip op. at 8-9, the tax-paid fuel credit prevents carriers operating in
multiple jurisdictions from double taxation. Section 6(a)(3) merely places a condition on
this benefit, i.e., the carrier must have first paid a similar tax to
the other jurisdictions. If Hi-Way were permitted to receive the tax-paid fuel
credit without having demonstrated that it had paid a tax on the fuel
to the jurisdiction in which the fuel was consumed, Indianas goal of preventing
double taxation would be thwarted. Instead, Indiana would receive less than the
road tax revenue to which it was entitled, absent any threat of double
taxation from another jurisdiction.
Hi-Way was required to demonstrate that application of Section 6(a)(3) violated the fair
apportionment requirement of the Complete Auto test. It has shown only the
risk that it may evade full payment of Indianas road tax, if the
tax-paid fuel credit was allowed; it has not shown a risk of multiple
taxation in the constitutional sense. See Hoosier Energy Rural Elec. Co-op., Inc.
v. Indiana Dept of State Revenue, 528 N.E.2d 867, 872 (Ind. Tax 1988),
affd, 572 N.E.2d 481, 485 (Ind. 1991). Therefore, the Court concludes that
application of Section 6(a)(3) does not run afoul of the external consistency test.
Consequently, the Court holds that application of Section 6(a)(3) does not violate
the fair apportionment requirement.
Finally, Hi-Way complains that application of Section 6(a)(3) discriminates against interstate commerce because
intrastate carriers are afforded unqualified tax-paid fuel credit when calculating their road tax
liability, while interstate carriers receive the credit only after having satisfied a condition
precedent. (Petr Br. at 19.) It is Hi-Ways position that Section
6(a)(3) guarantees on its face that motor carriers operating on Indianas highways will
be treated differently depending upon whether a motor carrier conducts its business wholly
within the state or also operates outside the states borders. (Petr Br.
Section 6(a)(3) does not discriminate against interstate commerce. Intrastate and interstate carriers
are treated virtually the same. In calculating its road tax liability, an
intrastate carrier simply excludes those gallons upon which it has paid a pump
tax. This is not a credit per se, because it is not
an allowance against the road tax. Rather, it reduces the gallons upon
which the road tax is calculated. However, the practical effect is that
the carrier receives an automatic credit against its road tax liability. In
contrast, to receive the true credit allowed by Indiana Code § 6-6-4.1-6, an
interstate carrier who purchases fuel in Indiana (and pays a pump tax) but
consumes it out-of-state must show that it paid a corresponding tax to the
other jurisdictions. Thus, both intrastate and interstate carriers must report their
road tax (or equivalent) liabilities to Indiana before receiving any credit against those
road taxes. For the intrastate carrier, the report to Indiana includes the
regular quarterly road tax calculation (which excludes those gallons upon which a pump
tax has been paid). For interstate carriers, the report to Indiana is
evidence that tax was already paid to another jurisdiction, as required by the
Department. Therefore, interstate and intrastate carriers are treated virtually the same.
Moreover, application of Section 6(a)(3) actually ensures that interstate commerce is not discriminated
against. By requiring carriers to prove that they paid a road (or
similar) tax to other jurisdictions, it ensures that carriers pay the same amount
of tax and not less tax depending upon whether the carrier chooses to
properly report its fuel consumption to a particular jurisdiction. Carriers purchasing their
fuel in Indiana are subject to basically the same level of taxation regardless
of whether they consume the fuel within Indiana or beyond the states borders.
Section 6(a)(3) cannot be reasonably viewed to discriminate against interstate commerce.
Thus, Hi-Way has not met this part of the Complete Auto test.
Cf. Bulkmatic III, 715 N.E.2d at 31. (holding that where effect of PTO
exemption penalized those motor carriers outside of Indiana while promoting business in Indiana,
exemption violated the Commerce Clause).
Hi-Way has not demonstrated that Section 6(a)(3) fails to meet either the fair
apportionment or the discrimination parts of the Complete Auto test. Therefore, Hi-Ways
claim that Section 6(a)(3) violates the Commerce Clause is without merit.
In summary, Indiana was not required to grant Hi-Way full credit under IFTA
for tax-paid fuel purchased within Indiana and consumed in a non-member jurisdiction.
In addition, Hi-Way has not demonstrated that Section 6(a)(3) violates the Commerce Clause.
The Court holds that, as a matter of law, Hi-Way could not exclude
fuel consumed while its vehicles idled from its total fuel consumed figures, in
calculating its road tax liability. While Hi-Way has claimed equitable estoppel as
an affirmative defense, it has not met its burden of demonstrating that it
is in the public interest to equitably estop the Department from denying Hi-Way
an adjustment for idle time activity. However, because Hi-Way has demonstrated a
genuine issue of material fact with respect to its affirmative defense of laches,
the Departments summary judgment motion is DENIED based only upon the laches issue.
Therefore, the laches issue will be the only issue to be decided
at trial. Further, for the aforementioned reasons, the Court concludes that application
of Section 6(a)(3) does not conflict with IFTA and does not violate the
Commerce Clause. Therefore, Hi-Ways motion for partial summary judgment is DENIED.
The Department argues that it is entitled to summary judgment in
its favor as a matter of law on this issue.
Footnote: Hi-Way asserts these affirmative defenses in response to the Departments motion
for summary judgment on the idle time issue.
Footnote: Both Hi-Way and the Department contend that they are entitled to
summary judgment in their favor as a matter of law on this issue.
Footnote: Hi-Way posits that it is entitled to summary judgment as a
matter of law in its favor on this issue.
Footnote: A carrier is a person who operates or causes to be operated
a commercial motor vehicle on any highway in Indiana.
Ind. Code §
6-6-4.1-1(a). Per Indiana Code § 6-6-4.1-1(b), a commercial motor vehicle subject
to the fuel tax is any vehicle listed in Indiana Code § 6-6-4.1-2(a)
and not excluded by Indiana Code § 6-6-4.1-2(b).
The credit for the pump tax is applied to a carriers road
tax liability, even though the road tax calculation formula excludes fuel consumed by
a carrier on out-of-state highways.
Footnote: For general information on IFTA, including access to the agreement itself and
the IFTA Manual, one may visit the web site of the International Fuel
Tax Association, Inc., at
(last visited Aug. 29, 2001). This Association
is responsible for managing the administration of [IFTA]. IFTA Article XIX(A).
The concept of a base jurisdiction is an important aspect of IFTA.
Base jurisdiction is defined as the member jurisdiction where (1) qualified motor
vehicles are based for vehicle registration purposes, (2) the operational control and operational
records of the licensees qualified motor vehicles are maintained or can be made
available, and (3) where some travel is accrued by qualified motor vehicles within
the fleet. IFTA Article II(B). Base jurisdictions are intended to provide
a central licensing and administrative entity for carriers; for individual carriers, the base
jurisdiction serves as the administrator of [IFTA] and execute[s] all its provisions with
respect to the carrier. IFTA Article I(D). As one author explains,
under IFTA the carrier registers with, and reports to, a single [jurisdiction] (the
base [jurisdiction]) which, in turn, is responsible for distributing the [tax] proceeds among
all other states in which the carrier has activity. The base [jurisdiction]
also audits the carrier and provides the other states with all other necessary
State and Local Taxation of Electronic Commerce: Reflections on the
Emerging Issues, 52 U. Miami L. Rev. 691, 717 n.92 (1998). See
generally IFTA Articles IX Reporting (providing that licensees shall file quarterly reports with
base jurisdiction and shall pay all taxes due to all member jurisdictions with
one check, which is to be made payable to the base jurisdiction); X
Base Jurisdiction Accounting (stating that the base jurisdiction shall maintain the records of
licensees located therein and that each jurisdiction shall forward all funds received to
the appropriate jurisdictions once each month); and XI Auditing (requiring base jurisdictions to
audit its licensees on behalf of all member jurisdictions).
As of 2000, Indiana had 6119 IFTA accounts and completed 213 audits
of these accounts.
Indiana Jurisdiction Annual Report for 2000.
In 1994, federal legislation was passed mandating that, after September 30, 1996,
all states (excluding Alaska and Hawaii) may establish, maintain, or enforce a law
or regulation that has a fuel use tax reporting requirement (including any tax
reporting form) only if the requirement conforms with [IFTA]. 49 U.S.C. §
See also id., § 31701(6) (defining State as the 48
contiguous States and the District of Columbia). In addition, the eleven provinces
of Canada are member jurisdictions of IFTA. See IFTA Texas Guidebook (Pub.
96-336) (June 1999).
The receipt must identify the motor vehicle into which the motor fuel
was placed. IFTA Article VII(C). For fuels withdrawn from bulk storage,
the carriers records must identify the quantity of fuel taken from the licensees
own bulk storage and placed in its qualified motor vehicles. IFTA Article
Footnote: Frank A. Bove, President of Hi-Way, stated that one device used on
vehicles to measure idle time began measuring idle time when the device sensed
rpm and no revolution on the drive shaft or the wheels. (Bove
Dep. at 21.) Bove indicated that idle time might take place when
a vehicle is stopped for a train, when drivers wait to unload, or
when drivers sleep in their vehicles (and must have the engine idling in
order to control the vehicles interior temperatures). (Bove Dep. at 21, 22
See also Roehl Trans., Inc. v. Wisconsin Div. of Hrgs
and Appeals, 570 N.W.2d 864, 867 (Wis. Ct. App. 1997). (observing that idling
time fell into two basic categories: (1) stops on the highway, such
as waiting at railroad crossings; and (2) off-highway idling, as when drivers would
keep engines running while sleeping in order to maintain a comfortable cab temperature).
Footnote: Hi-Way argues that even if IFTA permits taxation of non-propulsion fuel
use, the Departments idle time adjustment against Hi-Way can still be legally barred
or limited based upon the doctrines of equitable estoppel and laches, and neither
the estoppel issue nor the question of laches may be resolved in a
summary judgment context. (Petr Oppn Br. at 17.) (original emphasis). In
Hi-Ways motion for partial summary judgment, it requested summary judgment be granted in
its favor based upon its contention that IFTA and Section 6 conflict and
IFTA should control in favor of Hi-Way. (Petr Br. at 13).
The Court of Appeals, in
Samplawski v. City of Portage, observed
that estoppel may be permitted when its application will not involve the unauthorized
or unlawful use of public funds. Samplawski v. City of Portage, 512
N.E.2d 456, 459 (Ind. Ct. App. 1987) (citing City of Crown Point v.
Lake County, 510 N.E.2d 684 (Ind. 1987)). Also, according to the Court in
Samplawski, estoppel may be permitted where the limitations on governmental authority are not
clear and unambiguous, or where the government attempts to take inconsistent positions at
different stages of the same proceedings. Id. (citing State v. Hendricks Supt.
Ct., 250 Ind. 675, 235 N.E.2d 458 (Ind. 1968); Cablevision of Chicago v.
Colby Cable Corp., 417 N.E.2d 348 (Ind. Ct. App. 1981)).
There does not appear to be a generally recognized prohibition against enforcing
the laches defense against a government entity; thus, unlike with its equitable estoppel
argument, Hi-Way did not have articulate an important public policy reason for applying
the laches defense against the Department.
But cf. Harbour Town Assocs.
v. City of Noblesville, 540 N.E.2d 1283, 1287 (Ind. Ct. App. 1989) (agreeing
that public policy interests prohibit a private party from asserting laches against a
municipality in the enforcement of its zoning ordinances); United States v. Wedzeb Enters.,
Inc., 809 F. Supp. 646, 658 n.19 (S.D. Ind. 1992) (Equitable defenses, such
as laches, typically may not be asserted against the Government when it acts
in its sovereign capacity to protect the public welfare.).
Hi-Way argues that at least fourteen of the IFTA member jurisdictions in
which its vehicles operated during the tax years permitted a full unqualified credit
for tax-paid fuel, regardless of whether the fuel was taxed by an out-of-state
jurisdiction. (Petr Br. at 12, n.5.) Section 6(a)(3), as explained
does not conflict with IFTA. It is irrelevant that other jurisdictions may
not have had provisions similar to Section 6(a)(3).