Void Tax Assessment Due to Delay of Hearing
Indiana Code Section 6-8.1-5-1(c)(1) states: "If a person files a protest and requires a hearing on the protest, the department shall set the hearing at the department's earliest convenient time." IND. CODE 6-8.1-5-1(c)(1) (1993). the law does not define "earliest convenient time." See id.
The law provides no remedy for a delay of hearing under Indiana Code Section 6-8.1-5-1, nor does it expressly link the validity of a Controlled Substance Excise Tax assessment to the timing of a protest hearing. See IND. CODE 6-8.1-5-1.
Furthermore, this Court will not engraft a remedy on a statue where none exists absent an express indication by the Legislature that consequences should attach. See City Securities Corp. v. Dep't of State Revenue, 704 N.E.2d 1122, 1126 (Ind. Tax Ct. 1998).
1 the controlled substance excise tax is imposed on controlled substances that are:
(2) possessed; or
In Indiana in violation of IC 35-48-4 or 21 U.S.C. 841 through 21 U.S.C. 852. the tax does not apply to a controlled substance that is distributed, manufactured, or dispensed by a person registered under IC 35-48-3. IND. CODE 6-7-3-5.
The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution states, "No person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. CONST. amend. V. Our Supreme Court has clearly held that because the Controlled Substance Excise Tax assessment itself is a judgment, jeopardy attaches when the Department serves a person with an assessment notice and demand. See Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995).
This Court reviews final determinations of the Department de novo and is not bound by the evidence presented or the issues raised at the administrative level. IND. CODE 6-8.1-5-1(h); see also Clifft v. Indiana Dep't of Revenue, 748 N.E.2d 449, 452 (Ind. Tax Ct. 2001).
Although statutes that impose tax are to be strictly construed against the State, in Indiana, "the burden of proving that the proposed assessment is wrong rests with the person against whom the proposed assessment is made." IND. CODE 6-8.1-5-1(b); see also Clifft, 748 N.E.2d at 452.