HAMMERLE, FOSTER, ALLEN     Indianapolis, IN
Indianapolis, IN     DAVID A. ARTHUR
    Indianapolis, IN

DANTE ADAMS,                                                           )
    Petitioner,                                                             )
    v.                                                                      )   Cause No. 49T10-9904-TA-24
STATE OF INDIANA, INDIANA                                                   )
DEPARTMENT OF    REVENUE,                                                   )
    Respondents.                                                            )    


November 8, 2004

    Dante Adams (Adams) appeals the final determination of the Indiana Department of State Revenue (Department) assessing him with controlled substance excise tax (CSET). The issues for the Court to decide are: (1) whether Adams’ right to be free from double jeopardy was violated; (2) whether the CSET statutory procedures are constitutional; and, (3) whether the Department followed statutory procedures in assessing Adams with the CSET.

    On August 13, 1997, Adams was arrested and charged with dealing and possessing cocaine; Class A and Class C felonies, respectively. On March 23, 1998, the Department assessed Adams with CSET (and penalties) in the amount of $159,096.00 and demanded immediate payment. On March 24, 1998, Adams’ criminal charges were dismissed after a trial court determined that the cocaine was found pursuant to an illegally obtained search warrant. (See Stip. of Facts at J. Ex. 9.) On March 31, 1998, when Adams still had not paid the CSET, the Department issued a warrant to collect the tax. See footnote
On April 9, 1998, Adams protested the Department’s CSET assessment. After conducting a hearing, the Department issued a Letter of Findings denying Adams’ protest. Adams initiated an original tax appeal on April 5, 1999. The Court conducted a trial on November 10, 1999, and heard the parties’ oral arguments on March 1, 2000.
    This Court issued an opinion on June 5, 2000, reversing the Department’s CSET assessment, holding that the Department could not base its CSET assessment on “judicially determined illegally seized evidence.”See footnote Adams v. Indiana Dep't of State Revenue, 730 N.E.2d 840, 843 (Ind. Tax Ct. 2000) (footnote added). On February 8, 2002, the Indiana Supreme Court reversed this Court’s decision, holding that because the exclusionary rule did not apply to the CSET, the Department’s CSET assessment

(based on the illegally seized cocaine) was valid. See State, Indiana Dep’t of State Revenue v. Adams, 762 N.E.2d 728 (Ind. 2002), cert. denied, 537 U.S. 1030 (2002). Adams now returns to this Court, on remand from the Supreme Court, for resolution of his remaining claims.

Standard of Review

This Court reviews the Department’s final determinations de novo. Ind. Code Ann. § 6-8.1-5-1(h) (West Supp. 2004). Therefore, the Court is not bound by either the evidence presented or the issues raised at the administrative level. Snyder v. Indiana Dep't of State Revenue, 723 N.E.2d 487, 488 (Ind. Tax Ct. 2000), review denied.
(1) Double Jeopardy

    Adams first claims that his right to be free from double jeopardy was violated when the Department assessed him with CSET. Specifically, Adams argues that because he was facing criminal charges at the time of the Department’s assessment, and those criminal charges were resolved with finality, the Department’s actions “violate[], at least in spirit, the protections of the Indiana Constitution’s prohibition against double jeopardy.” (Pet’r Br. at 8.) The Department claims that because no jeopardy attached in the criminal proceedings, Adams cannot claim that he was twice placed in jeopardy. The Department is correct.
    The Double Jeopardy Clause of Indiana’s Constitution states that “[n]o person shall be put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14. The key word is twice – in this case, jeopardy first attached on March 23, 1998, when the Department assessed Adams with CSET. See Ford v. Indiana Dep't of State Revenue, 779 N.E.2d 1274, 1276 (Ind. Tax Ct. 2002) (“because CSET itself is a judgment, jeopardy attaches when the Department serves a person with an assessment notice and demand”). The criminal charges were later dismissed; accordingly, Adams was never placed in jeopardy a second time. See Clifft v. Indiana Dep't of State Revenue, 660 N.E.2d 310, 313 (Ind. 1995) (stating that when “[t]he State assessed the CSET against [the taxpayer], but did not follow that assessment with any criminal action[,] [the taxpayer] cannot be said to have twice been placed in jeopardy”). See also Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995) (stating that “[w]here a risk of a determination of guilt exists[] . . . jeopardy attaches”), cert denied, 519 U.S. 926 (1996).
(2) Adams’ Statutory Claims

Indiana imposes the CSET on “controlled substances that are: (1) delivered; (2) possessed; or (3) manufactured; in Indiana in violation of IC 35-48-4 or 21 U.S.C. 841 through 21 U.S.C. 852.” See footnote Ind. Code Ann. § 6-7-3-5 (West 2004) (footnote added). Furthermore, because “[a]n assessment for the [CSET] due . . . is considered a jeopardy assessment[, t]he department shall demand immediate payment and take action to collect the tax due as provided by IC 6-8.1-5-3.” Ind. Code Ann. § 6-7-3-13 (West 2004).
If payment of CSET liability is not made immediately upon demand, Indiana Code § 6-8.1-5-3 provides that the Department “may issue or request the state police department to serve a jeopardy tax warrant against the person [owing the tax] and, either without or with the assistance of the sheriffs of any counties in the state, may levy on and sell the person’s property which is located in those counties.” Ind. Code Ann. § 6-8.1-5-3 (West Supp. 2004).
a. Due Process

Adams claims that these CSET procedures violate his due process and due course of law rights See footnote because it imposes an automatic jeopardy assessment. Adams contends that because the CSET statute imposes a jeopardy assessment per se, “[t]his finding of jeopardy is arbitrarily made by a criminal investigator of the [Department] without a probable cause determination by a judicial officer or due process afforded the taxpayer. Thereafter, the taxpayers’ property is seized and sold without notice.” (Pet’r Br. at 9.)
As the Department correctly points out, this Court rejected a similar argument in 1994. Indeed, this Court explained:
The moment a person receives a jeopardy assessment with its concomitant payment demand, and before a tax warrant is issued and collection efforts begin, the person assessed has the ability to seek injunctive relief from this court. This procedure allows for review in a meaningful time and a meaningful manner before a court of competent jurisdiction and satisfies due process.

Clifft v. Indiana Dep't of State Revenue, 641 N.E.2d 682, 691 (Ind. Tax Ct. 1994), rev’d on other grounds, 660 N.E.2d 310 (Ind. 1995). Consequently, the Court declines Adams’ invitation to revisit the issue.

b. Statutory Compliance

Indiana Code § 6-7-3-19 provides that the Department may not commence CSET collection proceedings unless it “is notified in writing by the prosecuting attorney of the jurisdiction where the offense occurred that the prosecuting attorney does not intend to pursue criminal charges of delivery, possession, or manufacture of the controlled substance that may be subject to the [CSET].” Ind. Code Ann. § 6-7-3-19(2) (West 2004). Adams claims that the Department did not comply with this statute because it assessed Adams with a CSET liability prior to receiving notification from the prosecuting attorney that no criminal charges for the possession of cocaine would be pursued. The Department claims, however, that it complied with the statute because it did not issue the tax warrant against Adams until March 31, 1998, five days after it received notification from the prosecutor’s office that criminal charges were dropped. The Department is correct.
The foremost goal of statutory construction is to determine and give effect to the true intent of the legislature. Caylor-Nickel Clinic, P.C. v. Indiana Dep't of State Revenue, 569 N.E.2d 765, 768 (Ind. Tax. Ct. 1991) (citations omitted), aff’d, 587 N.E.2d 1311 (Ind. 1992). To determine the legislature’s intent, the words of a statute must be read in their plain, ordinary, and usual sense. Id. Furthermore, the Court will “read the statute as a whole, and not sections or parts of it piecemeal.” Roehl Transp., Inc. v. Indiana Dep't of State Revenue, 653 N.E.2d 539, 542 (Ind. Tax Ct. 1995) (citation omitted).
Under the CSET’s statutory framework, Adams became liable for the CSET when he took possession of cocaine. On March 23, 1998, when the Department discovered that Adams was in possession of cocaine and had not paid the CSET, it issued an assessment and demand notice for payment of the CSET. (See Stip. of Facts at J. Ex. 8.) It was only after Adams failed to remit payment to the Department, and after the prosecutor’s office notified the Department that it would not be pursuing criminal charges, that the Department commenced collection proceedings by filing a “warrant for collection of tax” pursuant to Indiana Code § 6-8.1-5-3. (See Stip. of Facts at J. Ex. 12.) Therefore, until March 31, 1998, when the jeopardy tax warrant was filed, Adams was free to pay the CSET and avoid action to collect the liability by the Department. Thus, the Court concludes that the Department followed the statutory procedures for imposing and collecting the CSET.

For the aforementioned reasons, the Court AFFIRMS the final determination of the Department.

Footnote: As a result of the warrant, local authorities levied on Adams’ personal property and applied $28,314.17 against his CSET liability. ( See Stip. of Facts at J. Ex. 17.)

Footnote: In Adams’ initial appeal to this Court, he raised inter alia, the issue of whether the exclusionary rule applies to CSET. The exclusionary rule is a judicially created remedy that acts to deter illegal searches and seizures by excluding illegally obtained evidence in criminal proceedings.

Footnote: A taxpayer’s CSET liability “is due when the person receives delivery of, takes possession of, or manufactures a controlled substance in violation of IC 35-48-4 or 21 U.S.C. 841 through 21 U.S.C. 852.” Ind. Code Ann. § 6-7-3-8 (West 2004).

Footnote: The Fourteenth Amendment of the U.S. Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. C onst. amend. XIV. Indiana’s corresponding constitutional provision states that “every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” Ind. Const. art. I, §12. “Th[is] fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Clifft v. Indiana Dep't of State Revenue, 660 N.E.2d 310, 318 (Ind. 1995) (citations and internal quotations omitted).