NOTICE: IC § 6-8.1-3-3.5 and IC § 4-22-7-7 require the publication of this document in the Indiana Register. This document provides the general public with information about the Indiana Department of Revenue's official position concerning a specific set of facts and issues. This document is effective on its date of publication and remains in effect until the date it is superseded or deleted by the publication of another document in the Indiana Register. The "Holding" section of this document is provided for the convenience of the reader and is not part of the analysis contained in this Letter of Findings.

Motor Carrier provided sufficient evidence to establish that it should not be assessed the full penalty for operating a vehicle that was over the statutorily allowed weight on the tandem axle.

I. Motor Vehicles - Overweight Penalty.

Authority: IC § 6-8.1-5-1; IC § 6-8.1-1-1; IC § 9-20-1-1; IC § 9-20-1-2; IC § 9-20-18-14.5; Indiana Dept. of State Revenue v. Rent-A-Center East, Inc., 963 N.E.2d 463 (Ind. 2012); Lafayette Square Amoco, Inc. v. Indiana Dept. of State Revenue, 867 N.E.2d 289 (Ind. Tax Ct. 2007).

Taxpayer protests the assessment of an overweight civil penalty.

Taxpayer is an Indiana-based trucking company. On February 1, 2022, the Indiana State Police ("ISP") cited Taxpayer's commercial motor vehicle for an overweight violation. The Indiana Department of Revenue ("Department") issued a proposed assessment for an overweight violation under IC § 9-2-18-14.5(d). Taxpayer protested the assessment and requested resolution without a hearing. This Letter of Findings results. Additional facts will be provided as necessary.

I. Motor Vehicles - Overweight Penalty.

Taxpayer's commercial motor vehicle was cited for being overweight on two axles. The Department issued a "No Permit Civil Penalty" pursuant to IC § 9-20-18-14.5(d). In its written explanation accompanying the protest, Taxpayer explained that this particular truck was hauling stone used at a power plant. The stone is loaded by a "large loader which makes the effort to distribute the load evenly." The driver received a warning "for being 2900 lbs over the legal axle weight limit on one axle, and 1850 lbs over weight [sic] on the other axle. The total weight for the vehicle was 380 lbs less than 80,000 lbs." Taxpayer believes because of these factors the civil penalty should be waived.

As a threshold issue, it is the Taxpayer's responsibility to establish that the existing tax assessment is incorrect. A proposed assessment is prima facie evidence that DOR's claim for the unpaid tax is valid. IC § 6-8.1-5-1(c). The burden of proving that the proposed assessment is wrong rests with the person against whom the proposed assessment is made. Id.; See e.g., Indiana Dept. of State Revenue v. Rent-A-Center East, Inc., 963 N.E.2d 463, 466 (Ind. 2012); Lafayette Square Amoco, Inc. v. Indiana Dept. of State Revenue, 867 N.E.2d 289, 292 (Ind. Tax Ct. 2007).

According to IC § 9-20-1-1, "[e]xcept as otherwise provided in [IC Art. 9-20], a person, including a transport operator, may not operate or move upon a highway a vehicle or combination of vehicles of a size or weight exceeding the limitations provided in [IC Art. 9-20]."

According to IC § 9-20-1-2, the owner of a vehicle "may not cause or knowingly permit to be operated or moved upon a highway [in Indiana] a vehicle or combination of vehicles of a size or weight exceeding the limitations provided in [IC Art. 9-20]."

IC § 9-20-18-14.5 authorizes the Department to impose civil penalties against Motor Carriers that obtain a permit under IC Art. 9-20 and violate IC Art. 9-20 ("Permit Violation Civil Penalty") or are required, but fail, to obtain a permit under IC Art. 9-20 ("No Permit Civil Penalty"). The Department may also impose a civil penalty for vehicles or loads subject to the size and weight limits provided in IC Art. 9-20 for which no permit is available ("No Permit Available Civil Penalty"). IC § 9-20-18-14.5(d).

IC § 6-8.1-1-1 states that fees and penalties stemming from IC Art. 9-20 violations are a "listed tax." Under IC § 9-20-18-14.5(a) these listed taxes are in addition to and separate from any arrangement or agreement made with a local court or political subdivision regarding the traffic stop.

ISP cited Taxpayer's vehicle for being overweight on a tandem axle by 4,720 pounds. The Department imposed a "No Permit Available Civil Penalty" in accordance with IC § 9-20-18-14.5(d) because Taxpayer was in excess of the legal per axle weight. Under IC Art. 9-20, no permit is available for instances where individual or tandem axles are overweight. Taxpayer's gross vehicle weight was 79,260 pounds.

Taxpayer argued that because its driver only received a warning from ISP that a civil penalty should not have been issued. As noted above, a civil penalty is a listed tax. This is separate and distinct from any warning issued by ISP.

Taxpayer next argued that, because it did not load the truck, its driver had no way of knowing the truck was overweight. Information that Taxpayer did not load its own vehicle may be a mitigating factor but is not dispositive that a civil penalty should not have been assessed.

Additionally, Taxpayer opined that the weights on the ISP report indicate that 80 percent of the load was on the rear of the truck. Taxpayer states if this were true, there would have been "flow over of product" outside of the truck bed. This leads Taxpayer to conclude that the portable scales used by ISP "did not produce an accurate weight." Taxpayer did not provide any further documentation or information related to the distribution of the load in the truck or provide any evidence that the portable scales were not reliable.

The fact that Taxpayer was not responsible for loading its own truck also supports a reduction of the civil penalty.

While Taxpayer has not fully met the burden imposed under IC § 6-8.1-5-1(c) of proving the proposed assessment wrong, IC § 9-20-18-14.5 provides "not more than" language to the Department when generating a proposed assessment amount. In this case the Department will generate a proposed assessment with a reduced amount as authorized by its statutory discretion and this Letter of Findings.

Taxpayer's protest is sustained in part and denied to the extent that Taxpayer did not prove the entire penalty should be removed.

March 14, 2023