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 This document is effective on its date of publication and remains in effect until the date it is superseded or deleted by the publication of another document in the Indiana Register.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.

The Department denied Carrier's protest of the civil penalty imposed against Carrier. Carrier established that the civil penalty amount should be lowered.

I. Motor Vehicles - Overweight Civil Penalty.

Authority: IC 6-8.1-1-1; IC 6-8.1-5-1; 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); Dept. of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579 (Ind. 2014).

Carrier protests the assessment of overweight civil penalty.

On May 5, 2022, the Indiana State Police ("ISP") cited the Carrier's commercial motor vehicle ("vehicle") for an overweight violation. ISP found that the vehicle was "[e]xcessive weight - 1-2500 lbs over on an axle/axle groups" and stated, regarding the violation, "52400 lbs/50000 lbs [t]riaxle group." As a result of the overweight violation, the Department issued Carrier a "DOR Civil Penalty Proposed Assessment for Oversize/Overweight Violation(s)" in the amount of $1,000. Carrier filed a protest; an administrative telephonic hearing was held. Additional facts will be provided below, as necessary.

I. Motor Vehicles - Overweight Civil Penalty.

Carrier states in its protest letter that it does "not agree with" the civil penalty. Specifically, Carrier states:

Turning to the law, pursuant to IC 6-8.1-1-1, the "fees and penalties assessed for overweight vehicles (IC 9-20-4 and IC 9-20-18)" are a listed tax. Thus, as a threshold issue, it is a taxpayer's responsibility to establish that the existing tax assessment is incorrect. As stated in IC 6-8.1-5-1(c), "[t]he notice of proposed assessment is prima facie evidence that the [D]epartment's claim for the unpaid tax is valid. The burden of proving that the proposed assessment is wrong rests with the person against whom the proposed assessment is made." See also 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). Consequently, a taxpayer is required to provide documentation explaining and supporting his or her challenge that the Department's position is wrong. Further, "when [courts] examine a statute that an agency is 'charged with enforcing . . . [courts] defer to the agency's reasonable interpretation of [the] statute even over an equally reasonable interpretation by another party.'" Dept. of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579, 583 (Ind. 2014).

The Department's proposed assessment, mailed to Carrier on July 18, 2022, states in pertinent part (emphasis in the original):

Thus, pursuant to IC 9-20-18-14.5(a)(1), the civil penalty is imposed on the carrier; and in the instant case, the Department issued a proposed assessment for $1,000 pursuant to IC 9-20-18-14.5(d).

After the administrative hearing, Carrier sent the Department an e-mail stating that its "truck drivers are not allowed to exit their vehicle while being loaded at the stone quarry." Carrier also stated that the "scales do not have the ability to weigh the axles . . . there is no way for the driver to know that information before leaving the quarry[.]" Carrier sent an attachment with the e-mail with information from the "MSHA.gov" which is the federal government's Mine Safety and Health Administration. Of relevance from that MSHA information, are the admonitions to "stay in your truck," that "[r]emaining in a truck is the single best thing a driver can do to protect themselves at a mine," and that if "a driver does get out of a truck, wear hard hats, safety glasses, vests, and other protective equipment."

In the present case, Carrier provided no analysis to show that the ISP report was inaccurate or that the Department misapplied the law. Thus, Carrier has failed to meet its burden of proof outlined in IC 6-8.1-5-1(c) regarding there having been a violation of the law. However, Carrier has established that the assessment should be lowered. The Department is authorized to lower the assessment pursuant to the "not more" language found in IC 9-20-18-14.5(d) (namely, "a civil penalty of not more than ten thousand dollars ($10,000)"). An examination of Carrier's records with the Department shows that–at the time of the violation–Carrier did not have a history of oversize and overweight violations (although Carrier did previously receive a warning letter from the Department). Given Carrier's history, and the mitigating factors outlined supra, the Department finds that the civil penalty should be reduced.

Carrier's protest is denied but the civil penalty should be reduced.

June 6, 2023