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Monday, August 20, 2012

Ind. Decisions - One Friday from Tax Court

In Wireless Advocates, LLC v. Indiana Department of State Revenue, a 6-page opinion, Judge Wentworth writes:

Wireless Advocates, LLC appeals the Indiana Department of State Revenue’s final determination denying its claim for refund of adjusted gross income tax for the 2006 tax year. The matter is currently before the Court on the Department’s Motion to Dismiss (Motion) for failure to state a claim upon which relief may be granted. The Court finds the Motion should be denied. * * *

On September 26, 2011, Wireless Advocates filed a Notice of Appearance and a Verified Petition for Judicial Review to which it attached a three-page letter, the Department’s order denying its refund claim, a postal receipt, a certified mail receipt, and the power of attorney it executed for the administrative proceedings. Thomas Gaisser, a member, vice-president, and chief financial officer of Wireless Advocates, signed the Verified Petition and Notice of Appearance. * * *

The Department initially explains that Indiana does not require limited liability companies to be represented by counsel in court, in contrast to corporations. Accordingly, the Department invites the Court to create such a rule as a matter of first impression in this state. The Department then asks the Court to dismiss this case because Wireless Advocates, a limited liability company, could not initiate this appeal itself; Gaisser, as a non-attorney, could not initiate this appeal on Wireless Advocates’s behalf; and Gaisser engaged in the unauthorized practice of law by signing and filing the Verified Petition and Notice of Appearance. The Court declines to invent such a rule where one does not currently exist. Thus, the Court consolidates the Department’s several issues into the one dispositive issue: whether dismissal is the proper remedy in this case. * * *

When a corporation prosecutes or defends its case pro se and its opponent contests such representation, Indiana courts generally have given the corporation an opportunity to retain counsel, which the corporation must refuse before dismissing the action. See, e.g., State ex. rel. Western Parks v. Bartholomew Cnty. Ct., 383 N.E.2d 290, 292-93 (Ind. 1978) (prohibiting a court from exercising its jurisdiction until the plaintiff-corporation obtained counsel). Indeed, the Indiana Court of Appeals has explained that a “corporate litigant must be given a fair opportunity to correct its error and retain competent counsel before dismissal would be appropriate.” Christian Bus. Phone Book, Inc. v. Indianapolis Jewish Cmty. Relations Council, 576 N.E.2d 1276, 1277 (Ind. Ct. App. 1991). Furthermore, over twenty years ago this Court noted that while an appeal initiated by a non-attorney on a corporation’s behalf is procedurally defective, the defect is curable. Sherry Designs, Inc. v. State Bd. of Tax Comm’rs, 589 N.E.2d 285, 285 n.1 (Ind. Tax Ct. 1992). * * *

Therefore, the Court finds that Wireless Advocate’s petition does not deserve the terminal result of dismissal. Accordingly, the Department’s Motion is DENIED, and the Court ORDERS the Department to file its Answer within thirty (30) days of the date of this Order.

Posted by Marcia Oddi on August 20, 2012 02:08 PM
Posted to Ind. Tax Ct. Decisions