ATTORNEY FOR PETITIONER
MICHAEL T. WALLACE
ROBERTS & BISHOP
ATTORNEYS FOR THE RESPONDENT
ATTORNEY GENERAL OF INDIANA
DAVID A. ARTHUR
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
PRESTON H. FORD, )
v. ) Cause No. 49T10-9903-TA-17
INDIANA DEPARTMENT OF STATE )
ON APPEAL FROM A FINAL DETERMINATION OF
THE INDIANA DEPARTMENT OF STATE REVENUE
December 17, 2002
Preston H. Ford (Ford) appeals the final determination of the Indiana Department of
State Revenue (Department) assessing Ford for the Controlled Substance Excise Tax (CSET)
See footnote liability
under Indiana Code Section 6-7-3-13. Ford raises two issues:
I. Whether Fords protection against double jeopardy was violated by his CSET assessment; and
II. Whether Fords CSET assessment is void because the hearing on his protest was
held six years after he requested it.
FACTS AND PROCEDURAL HISTORY
For the reasons stated below, the Court AFFIRMS the Departments final determination.
After finding nearly a kilogram of cocaine in the trunk of Fords vehicle,
the State charged him with dealing cocaine, a class B felony, on September
3, 1992. On December 7, 1992, the Department assessed Ford with a
Ford protested the assessment and, on December 17, 1992, he requested a hearing
with the Department. On December 20, 1993, Ford plead guilty to the
charge of possession of cocaine. The trial court accepted his plea at
a sentencing hearing on March 28, 1994. On August 6, 1998, the
Department held a hearing on Fords protest. The Department issued a final
determination on September 10, 1998, denying Fords protest.
On March 5, 1999, Ford initiated an original tax appeal. The Court
did not conduct a trial, as both parties agreed to have the matter
resolved based on the evidence stipulated into the record as well as on
their briefs. On November 30, 1999, oral arguments were held. Additional
facts will be supplied as needed.
ANALYSIS AND OPINION
Standard of Review
This Court reviews final determinations of the Department de novo and is not
bound by the evidence presented or the issues raised at the administrative level.
Ind. Code § 6-8.1-5-1(h); see also Clifft v. Indiana Dept of Revenue,
748 N.E.2d 449, 452 (Ind. Tax Ct. 2001). Although statutes that impose
tax are to be strictly construed against the State, in Indiana, [t]he burden
of proving that the proposed assessment is wrong rests with the person against
whom the proposed assessment is made. Ind. Code § 6-8.1-5-1(b); see also
Clifft, 748 N.E.2d at 452.
I. Double jeopardy
The first issue is whether Fords protection against double jeopardy was violated by
his CSET assessment. Ford argues that jeopardy attached to him for the
first time when the trial court accepted his guilty plea in 1993 and
for the second time at his 1998 CSET protest hearing. Thus, he
reasons that the CSET hearing placed him in double jeopardy. Ford is
The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution states,
No person shall be . . . subject for the same offence to
be twice put in jeopardy of life or limb[.] U.S. Const. amend.
V. Our Supreme Court has clearly held that because the CSET assessment
itself is a judgment, jeopardy attaches when the Department serves a person with
an assessment notice and demand. See Bryant v. State, 660 N.E.2d 290,
299 (Ind. 1995). Here, jeopardy attached the first time in December 1992
when the Department issued Ford the CSET assessment. See id.; see also
Hayse v. Indiana Dept of State Revenue, 660 N.E.2d 325, 326 (Ind. 1995).
It attached the second time in 1994 when the trial court accepted
Fords guilty plea.
See State v. Keith, 482 N.E.2d 751, 754 (Ind.
Ct. App. 1985) (holding that jeopardy attaches when a court accepts a defendants
guilty plea). Because Fords CSET assessment was the first attachment of jeopardy,
it did not violate his protection against double jeopardy. See Hayse, 660
N.E.2d at 326; Bryant, 660 N.E.2d at 299. Accordingly, the Court AFFIRMS
the Departments final determination on this issue.
II. The CSET
The second issue is whether Fords CSET assessment is void because the hearing
on his protest was held six years after he requested it. Ford
argues that the Department was required to grant him a hearing at its
earliest convenience and that it unreasonably delayed doing so, to his detriment.
Thus, Ford asks the Court to void his CSET assessment.
Indiana Code Section 6-8.1-5-1(c)(1) states: If [a] person files a protest and
requires a hearing on the protest, the department shall  set the hearing
at the departments earliest convenient time[.]
Ind. Code § 6-8.1-5-1(c)(1) (1993).
The law does not define earliest convenient time. See id. However,
the Court need not determine its meaning to reach the merits of Fords
claim. The law provides no remedy for a delay of hearing under
Indiana Code Section 6-8.1-5-1, nor does it expressly link the validity of a
CSET assessment to the timing of a protest hearing. See Ind. Code
§ 6-8.1-5-1. Furthermore, this Court will not engraft a remedy on a
statue where none exists absent an express indication by the Legislature that consequences
should attach. See City Securities Corp. v. Dept of State Revenue, 704
N.E.2d 1122, 1126 (Ind. Tax Ct. 1998).
Because the Legislature has not expressly provided for consequence in the event of
a delay of a protest hearing under Indiana Code Section 6-8.1-5-1, the Court
will not void Fords CSET assessment due to any alleged delay of his
hearing. See id. Accordingly, the Court AFFIRMS the Departments final determination.See footnote
For the aforementioned reasons, the Court AFFIRMS the Departments final determination.
The controlled substance excise tax is imposed on controlled substances that are:
(2) possessed; or
in Indiana in violation of IC 35-48-4 or 21 U.S.C. 841 through 21
U.S.C. 852. The tax does not apply to a controlled substance that
is distributed, manufactured, or dispensed by a person registered under IC 35-48-3.
Ind. Code § 6-7-3-5.
An assessment for the tax due under [Indiana Code Section 6-7-3] is
considered a jeopardy assessment. The department shall demand immediate payment and take
action to collect the tax due as provided by IC 6-8.1-5-3.
Code § 6-7-3-13.
Fords criminal conviction, of course, is not before this Court in this
original tax appeal.
Footnote: In particular, Ford argues that interest on his CSET assessment accumulated during
the wait and that evidence potentially favorable to his case grew stale.
Ford also makes the remarkable allegation that the Departments delay forced him to
endure a criminal proceeding and deal with the punishment. (Petr Br. at
7.) The source of Fords criminal woes was not in the Departments
alleged delay. It was in Fords trunk, where the authorities discovered nearly a
kilogram of cocaine.
Footnote: A taxpayer such as Ford who believes he is being prejudiced by
the delay of a taxing authority may seek the remedy of mandamus.
State Board of Tax Commrs v. Mixmill Mfg. Co., 702 N.E.2d 701, 705
(Ind. 1998). Ford neither made an attempt to seek the remedy of
mandamus nor showed good cause why he did not.