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In re Appeal of Burgh

Tax Court of Kansas

September 11, 2013

IN THE MATTER OF THE APPEAL OF BURGH, IAN A. FROM AN ORDER OF THE DIVISION OF TAXATION ON ASSESSMENT OF CONTROLLED SUBSTANCES TAX

ORDER GRANTING KANSAS DEPARTMENT OF REVENUE'S MOTION FOR SUMMARY JUDGMENT

COMES NOW this matter before the Court of Tax Appeals of the State of Kansas on a motion for summary judgment filed by the Kansas Department of Revenue (the "Department"). This tax appeal involves an assessment imposed by the Department pursuant to the marijuana and controlled substances tax act (K.S.A. 79-5201 et seq, (1997 & Supp. 2008)), commonly referred to as the "drug tax."

ORDERED AND ADJUDGED that the Department's motion for summary judgment is granted in full for the reasons set forth herein.

I.

Procedural Background

The taxpayer, Ian A. Burch, appealed from a final determination of the Secretary of Revenue's designee, dated June 30, 2005, which upheld a drug tax assessment issued against Mr. Burch consisting of tax and penalties totaling $17, 761. In reaching its final determination, the Department considered certain evidence that had been suppressed in an earlier criminal proceeding in Trego County District Court. In the criminal case, the district court suppressed the evidence after finding that the investigating officer's entry into Mr. Burch's motor home was an illegal search under the Fourth Amendment to the U.S. Constitution.

On December 4, 2006, Mr. Burch filed a motion for summary judgment, - asserting that the evidence suppressed in the criminal case should likewise be suppressed by this administrative tax tribunal and that the Department's assessment should be dismissed, as a matter of law, for lack of evidentiary support. The Department did not, at that time, file a cross motion for summary judgment. On February 7, 2007, this court issued an order denying Mr. Burch's motion for summary judgment.

On April 14, 2008, the Department filed the instant motion for summary judgment. Jurisdiction is proper pursuant to KS.A. 2008 Supp. 74-2438. We shall apply K.S.A. 2008 Supp. 60-256 and Kansas Supreme Court Rule 141 in deciding this motion. See K.A.R. 94-2-8 (authorized by and implementing K.S.A. 2008 Supp. 74-2437).

II.

Summary Judgment Standards

Summary judgment is appropriate where the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." KS.A. 2008 Supp. 60-256(c).

The purpose of summary judgment is to eliminate delay in legal disposition where there is no real issue of material fact. Timi v. Prescott State Bank, 220 Kan. 377, 386, 553 P.2d 315, 323 (1976). Summary judgment is nonetheless a drastic remedy. The movant has the burden of demonstrating that there are no genuine questions of material fact and that he is entitled to judgment as a matter of law, which is a strict burden. See Saliba v. Union Pacific R.R., 264 Kan. 128, 131, 955 P.2d 1189, 1192 (1998).

The facts averred by the moving party in a motion for summary judgment must be matters admissible in evidence. K.S.A. 2008 Supp. 60-256 (e). The party opposing summary judgment must respond with specific evidence to demonstrate that a genuine issue of material fact remains for trial. See id. The opposition evidence must be probative of the non-movant's position on a material fact. See Hare v. Wendler, 263 Kan. 434, 444, 949 P.2d 1141, 1148 (1997). A fact might be disputed, but if it does not affect the legal outcome of the controlling issues, the fact is not a material fact. See Stone u. City of Kiowa, 263 Kan. 502, 509, 950 P.2d 1305, 1310 (1997).

III.

Kansas Drug Tax Statutes


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