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Monday, March 07, 2016

Ind. Tax Courts - Two orders issued today in Popovich disputes

In Nick Popovich v. Ind. Dept. of State Revenue, a 6-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue argues that it is entitled to expenses in the amount of $5,175.25 for successfully defending against Nick Popovich’s second motion to compel. See generally Popovich v. Indiana Dep’t of State Revenue (Popovich II), 7 N.E.3d 419 (Ind. Tax Ct. 2014), reh’g denied. The Court agrees. * * *

Popovich was not substantially justified in filing his second motion to compel, and therefore, the Department is entitled to a reimbursement for expenses in the amount of $5,175.25 for successfully defending against that motion.


In Nick Popovich v. Ind. Dept. of State Revenue, a 2-page opinion, Judge Wentworth writes:

Nick Popovich has requested expenses in the amount of $51,210.29 for successfully prosecuting his first motion to compel. See generally Popovich v. Indiana Dep’t of State Revenue (Popovich I), 7 N.E.3d 406 (Ind. Tax Ct. 2014). The Court finds that Popovich is entitled to be reimbursed for reasonable expenses and awards him $24,963.00. * * *

In determining what constitutes a reasonable amount of expenses, the Court has considered the credibility of Popovich’s evidence, the relative success of Popovich in filing his first motion to compel, and the relative success of the Department’s substantial justification arguments. Moreover, the Court has considered the conduct that unnecessarily prolonged the entire discovery process and consumed far too much of this Court’s valuable time. For instance, the Department raised hundreds of blanket objections over several months and was not forthright in presenting its deliberative process privilege arguments. As to Popovich, his failure to promptly address the Department’s objections regarding the production of certain tax returns unnecessarily put that matter at issue in Popovich I. See, e.g., Popovich I, 7 N.E.3d at 412 n.5. In fact, this will be the fifth written decision regarding some aspect of the parties’ battle for information and not the merits of the case.

Having considered and weighed all relevant factors, the Court finds that the Department must pay Popovich for his reasonably incurred expenses. See Noble Cnty v. Rogers, 745 N.E.2d 194, 197-98 (Ind. 2001); State v. Kuespert, 411 N.E.2d 435, 438-39 (Ind. Ct. App. 1980) (both recognizing that a court may issue monetary sanctions against the State for discovery violations). See also, e.g., Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997) (providing that this Court, like any other court that initially resolves discovery disputes, has broad discretion in
ruling on those matters, including the appropriate sanctions for misuse of the discovery process), trans. denied. Accordingly, the Court orders the Department to pay Popovich $24,963.00 for expenses.

Posted by Marcia Oddi on March 7, 2016 06:32 PM
Posted to Ind. Tax Ct. Decisions