Municipal Law

Berger Family Real Estate, LLC v. City of Covington, et al., 464 S.W.3d 160 (Ky. App. 2015). Holding that the City of Covington, Kentucky’s decision to circulate a petition to form a management decision was not actionable until the requisite signatures were obtained and the City acted on the petition.

Library Taxing Districts

Campbell County Library Board of Trustees v. Charlie Coleman, et al; Kenton County Library Board of Trustees v. Garth Kuhhein, 475 S.W.3d 40 (Ky. App. 2015); (separate cases decided together) Holding library districts formed by petition when setting ad valorem (property) tax rates are governed by H.B. 44 but are limited by KRS 173.790 if they seek to set a rate that will raise revenue by more than four percent over the prior year.

911 Flat Fee

Greater Cincinnati/Northern Kentucky Apartment Assoc., Inc., et al. v. Campbell County Fiscal Court, 479 S.W.3d 603 (Ky. 2015). (Holding Campbell County’s 911 flat fee on occupied residential and commercial units was not an unlawful flat property tax but a lawful fee authorized by KRS 65.760(3).

Prepaid Wireless Service Charges

Virgin Mobile USA, L.P. v. Commonwealth of Kentucky ex rel. Commercial Mobile Radio Service Emergency Telecommunications Board v. Virgin Mobile USA, L.P., 448 S.W.3d 241 (Ky. 2014) Holding that CMRS service charges did not apply to prepaid wireless telecommunications prior to July 2006.

Deduction of Foreign Dividends

Caterpillar Inc. v. Indiana Dept. of State Revenue, 15 N.E.3d 1269 (Ind. 2014). Holding that Ind. Code § 6-3-2-12 did not authorize Caterpillar to deduct foreign dividends when calculating a net operating loss and such denial did not violate the dormant Commerce Clause of the U.S. Constitution.

Presumptive Abandonment Period

American Express Travel Related Services Company, Inc. v. Commonwealth of Kentucky, Kentucky Department of Treasury, et al., 730 F.3d 628 (6th Cir. 2013) Holding that the provisions of the 2008-2010 Executive Branch Budget Bill and subsequent legislation purporting to reduce the presumptive abandonment period for traveler’s checks from 15 years to seven years applied only to checks issued after their enactment but did not violate the Commerce Clause of the U.S. Constitution.

Personal Property Tax Protest

Department of Revenue, Finance and Administration Cabinet v. Cox Interior, Inc., 400 S.W.3d 240 (Ky. 2013) Holding that a taxpayer’s failure to protest the Department of Revenue’s assessment of tangible personal property taxes does not bar a taxpayer from later seeking a refund of overpaid taxes pursuant to KRS 134.590 (amicus curiae participation).

Open Records Act Requirements

Dept. of Revenue v. Timothy J. Eifler, 436 S.W.3d 530 (Ky. App. 2013) Holding the Department of Revenue was required by the Kentucky Open Records Act to disclose the names, addresses and dates of registration of all taxpayers registered for the utility gross receipts license tax for schools and rejecting claim that such disclosure is protected by the taxpayer confidentiality provisions of KRS 61.878(1)(l),  131.190(1)(a) and 131.081(15).

Local Hotel Taxes

Successfully defended online travel companies in litigation by three local governments seeking to collect local hotel taxes. Louisville/Jefferson County Metro Govt., Lexington-Fayette Urban County Govt., et al. v. Hotels.com, L.P., et al., 590 F.3d 381 (6th Cir., 2009).

Utility Gross Receipts License Tax

Successfully represented a provider of utility services in an appeal of a utility gross receipts license tax assessment that reduced their liability by $2.5 million.

Income Tax

Successfully represented taxpayer in refund suit based on unitary income tax filing.

Planning

Advised client with respect to like-kind exchanges of multiple properties under Section 1031 of the Internal Revenue Code involving exchange proceeds in excess of $17 million.

Incentives

Successfully negotiated and implemented incentive packages for a variety of projects involving state income and local occupational tax credits and wage assessments under the Kentucky Business Investment Act program; sales and use tax refunds under the Kentucky Enterprise Initiative Act and Tourism Development Act programs; an up to 30-year state and local ad valorem (property) tax abatement; state grants under the Economic Development Bond and Community Development Block Grant programs; local grants of developable land and credits and power purchase credits and grants from the Tennessee Valley Authority.

Sample projects include the following:

• Two $19 million hydroponic greenhouse facilities.
• $35 million bourbon distillery and related visitors’ center.
• $120 million bourbon maturation warehouse project.
• $60 million bourbon distillery expansion and related visitors’ center.
• $123 million tobacco manufacturing and processing facility.
• $193 million cast iron foundry facility.
• $120 million steel manufacturing plant.
• Multiple $50+ million distribution center projects.

Class Action, Telecommunications and Consumer Protection

SKO acted as counsel for a 175,000-member plaintiff class in U.S. District Court to challenge sales tax collection on broadband Internet access services provided by incumbent local exchange carrier. The Court approved settlement agreement in August 2007 that provided class members full refunds of overpayments plus interest, totaling $8.2 million. Clark v. BellSouth Telecommunications, Inc., 461 F.Supp.2d 541 (W.D. Ky. 2006).

Hotel Tax of Online Travel Company

City of Bowling Green  v. Hotels.com, L.P., et al., 357 S.W.3d 531 (Ky.App. 2011) Holding that the City of Bowling Green, Kentucky’s local transient room license taxes did not apply to online travel companies.

Louisville/Jefferson County Metro Govt., Lexington-Fayette Urban County Government et al. v. Hotels.com, L.P., et al., 590 F.3d 381 (6th Cir., Dec. 22, 2009) (Holding that Kentucky local transient room license taxes did not apply to online travel companies and upholding dismissal of putative class action by Metro Government and LFUCG, on behalf of themselves and a class consisting of all local Kentucky governments levying transient room taxes).

Municipal Property Tax Litigation

St. Matthews Fire Protection District v. John Aubrey, Sheriff, et al., 204 S.W.3d 56 (Ky.App. 2009), disc. rev. den. (2010)
Obtained a ruling that applies the doctrine of sovereign immunity to sheriffs and county clerks in action for failure to properly assess and collect ad valorem (property) taxes.

Eric P. Light, et al. v. City of Louisville, 248 S.W.3d 559 (2008)
Determined the statutory time requirements governing adoption of local ad valorem (property) tax rates.

City of Somerset v. Bell et al., 156 S.W.3d 321 (Ky.App. 2005)
Holding that taxpayers may bring a class action to obtain ad valorem (property) tax refunds.

City of Bromley v. Smith et al., 149 S.W.3d 403 (2004)
Holding that taxpayers may bring a class action to obtain Kentucky specific property tax refunds under common law).

Occupational Tax Litigation

Paradise Tomato Kitchens, Inc. v. Louisville/Jefferson County Metro Revenue Commission, et al., Ky. Court of Appeals Action No. 2007-CA-000965 (June 30, 2008), disc. rev. den. and ordered de-published (2008)

Determined the extent of right to refund of overpaid local occupational license taxes under common law.

Amicus Curiae

Barney Jones, et al. v. Jason H. Cross, et al., 260 S.W.3d 343 (Ky. 2008)
Holding that sovereign immunity otherwise enjoyed by sheriffs has been statutorily waived.

Bob Hook Chevrolet Isuzu, Inc. v. Kentucky Transportation Cabinet, 983 S.W.2d 488 (1998)
Participation in action holding customer courtesy cars could not be registered under a U-Drive-It permit.

Indiana Corporate Income Tax

Caterpillar Financial Services Corporation v. Indiana Dept. of State Revenue, 849 N.E.2d 1235 (Ind. Tax. 2005)

Expanding scope of taxpayers subject to the Indiana financial institutions tax and exempt from Indiana gross income tax, Indiana adjusted gross income tax and Indiana supplemental net income taxes.

Sales and Use Tax Litigation

Falls City Limb & Brace Co., Inc. v. Kentucky Revenue Cabinet, Franklin Circuit Court (Div. II) Case No. 02-CI-00644 (2003)

Affirming Ky. Board of Tax Appeals holding charges for materials, repair parts and replacements parts used in re-fitting and repair of prosthetic limbs and other devices exempt from Kentucky sales and use taxes.

Auto Dealer Usage Tax Litigation

Jim Cooke Buick, Inc. v. Kentucky Transportation Cabinet, KBTA Order No. K-17826 (2000)

Holding Transportation Cabinet cannot remove a vehicle from the U-Drive-It program and assess Kentucky motor vehicle usage tax without first voiding taxpayer’s U-Drive-It permit.