Scott Roberts for www.theindianalawyer.com
Nick Popovich’s ongoing saga with the Indiana Tax Court continued Thursday as he again won a partial victory against the Indiana Department of State Revenue.
Popovich has appeared before the Indiana Tax Court on at least two other occasions, winning a partial victory in getting the Department of State Revenue to comply with nearly all of his discovery requests in 2014 after he was audited in 2007 for the 2002 through 2004 tax years. Popovich claims he was a professional gambler in those years and is entitled to deduct gambling losses as business expenses.
On March 7, Popovich won a claim for $24,963 for successfully prosecuting his first motion to compel against the Department of Revenue, but the Tax Court ruled the DOR should get $5,172.25 in court fees for successfully defending Popovich’s second motion to compel.
In this case, the Department of Revenue filed for summary judgment on proposed assessments of Popovich for $403,762.72 as well as interest and penalties after it claimed Popovich was not a gambler and owed that in adjusted gross income tax. The DOR upheld the claims, and Popovich filed a tax claim and then appealed.
There was a split victory on evidentiary issues. The Tax Court ruled Popovich’s affidavit was admissible because the DOR did not point out any points where it contradicts his discovery testimony, but his expert’s report is not, because Popovich did not determine the validity of the expert.
The Tax Court also found Popovich’s 2003 tax return was not untimely and even if it were, the DOR is incorrect in its claim that a late return is tantamount to filing no return at all. However, the DOR filed its proposed assessment in January of 2008, after the three-year time limit and it is thus void. Popovich was awarded summary judgment on the issue.
The test of whether Popovich was a professional gambler in 2003 will have to wait, however, as there are still genuine issues of material fact to be discovered, Judge Martha Blood Wentworth wrote. That factor is too complicated to be decided in summary judgment, and both sides will need to submit briefs to decide that issue.
The case is Nick Popovich v Indiana Department of State Revenue, 49T10-1010-TA-00053
