During the period at issue, Fresenius sold equipment used to treat patients with End Stage Renal Disease. ... Fresenius collected sales tax from its customers on its equipment sales and remitted it to the Department. Fresenius subsequently filed a refund claim with the Department, maintaining that the sales were relieved from taxation pursuant to the durable medical equipment exemption and, as a result, it erroneously collected sales tax from its customers. Fresenius indicated that once it received the refund from the Department, it would return the proper amounts to each of its customers.
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In its motion, the Department provides three alternative reasons for the dismissal of Fresenius’s appeal:
I. The Court lacks subject matter jurisdiction over Fresenius’s appeal and the case must therefore be dismissed under Indiana Trial Rule 12(B)(1);
II. Fresenius lacks standing to bring its appeal and the case must therefore be dismissed under Indiana Trial Rule 12(B)(2) ; and
III. Fresenius has failed to certify its appeal as a class action lawsuit and the case must therefore be dismissed under Indiana Trial Rule 12(B)(6).
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Fresenius, the petitioner in this case, meets both statutory requirements for initiating an original tax appeal. First, Fresenius’s case arises under Indiana’s tax laws as it concerns sales tax, a listed tax. See IND. CODE § 6-8.1-1-1 (designating the sales tax as a listed tax). Second, Fresenius received a final determination from the Department on June 7, 2010, denying its claim for refund. The Department’s claim that this Court lacks subject matter jurisdiction over Fresenius’s appeal is therefore without merit.
...The Department contends that this statute clearly provides that "the merchant is not entitled to seek a refund until it refunds the money to its customers." (Hr’g Tr. at 8 (emphasis added).) The Department explains that because Fresenius acknowledges that it has not yet returned to its customers the tax it initially collected from them, it lacks the requisite standing to bring its case before this Court. ...
In support its claim that Fresenius lacks standing, the Department has urged the Court to read words into Indiana Code § 6-2.5-6-14.1 that are not there. Nonetheless, the language of the statute is plain and unambiguous, and therefore the Court has no power to construe it in a way that would either limit or extend its operation. See F.A. Wilhelm Constr. Co. v. Indiana Dep't of State Revenue, 586 N.E.2d 953, 955 (Ind. Tax Ct. 1992) (citation omitted).
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In its motion, the Department argues that Fresenius’s appeal must be dismissed "[b]ecause [Fresenius] has sought to litigate this matter on behalf of a class of taxpayers but has not sought class certification[.]" (Resp’t Br. at 13.) This claim, like the Department’s previous two, however, fails.
Fresenius has a statutory right to appeal the denial of its claim for refund with this Court. See supra. Consequently, it does not need to pursue its appeal – nor has it – as a class action. Accordingly, the Department’s request that the case be dismissed under Indiana Trial Rule 12(B)(6) due to Fresenius’s failure to seek class certification is DENIED.
http://www.in.gov/judiciary/opinions/pdf/06011201mbw.pdf
