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Express Scripts Incorporated V. Indiana Department of State Revenue

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Express Scripts Incorporated V. Indiana Department of State Revenue ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT: BENJAMIN A. BLAIR THEODORE E. ROKITA DANIEL R. ROY ATTORNEY GENERAL OF INDIANA FAEGRE DRINKER BIDDLE & REATH LLP KELLY S. EARLS Indianapolis, IN ZACHARY D. PRICE COURTNEY L. ABSHIRE R. GREGORY ROBERTS DEPUTY ATTORNEYS GENERAL ROBERTS LAW GROUP, PLLC Indianapolis, IN White Plains, New York IN THE INDIANA TAX COURT EXPRESS SCRIPTS INCORPORATED, ) ) Petitioner, ) ) v. ) Cause No. 19T-TA-00018 ) INDIANA DEPARTMENT OF ) STATE REVENUE, ) ) Respondent. ) ORDER ON RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT FOR PUBLICATION May 14, 2021 WENTWORTH, J. Express Scripts Incorporated has appealed the Indiana Department of State Revenue’s final determination assessing it with additional adjusted gross income tax (AGIT) and interest for the 2011, 2012, and 2013 tax years. The matter is currently before the Court on the Department’s motion for partial summary judgment (“Motion”), which presents just one issue for resolution: whether Express Scripts, a pharmacy benefit management company, receives its Indiana income from the retail sale of prescription drugs or from the provision of services. (See Resp’t Mem. Supp. Partial Mot. Dismiss [or] Summ. J. (“Resp’t Br.”) at 41; Hr’g Tr. at 10-12.). After reviewing all the designated evidence, the Court finds that Express Scripts receives its Indiana income from the latter. As a result, the Court denies the Department’s Motion and grants summary judgment to Express Scripts. FACTS AND PROCEDURAL HISTORY Many health maintenance organizations, health insurers, third-party administrators, employers, union-sponsored benefit plans and government health programs (collectively, “health insurers”) provide health insurance and medical benefits programs to their members or employees, “a standard part of which is a prescription drug or pharmacy benefit[.]” (See App. Pet’r Resp. Resp’t Mot. Summ. J., Vol. II (“Pet’r Des’g Evid.”), Ex. 2 ¶¶ 3-4.) While some of these health insurers administer the prescription drug/pharmacy benefit themselves, others outsource that function to a pharmacy benefit management company. (See Pet’r Des’g Evid., Ex. 2 ¶¶ 3, 5.) One of the largest pharmacy benefit management companies in the United States is Delaware corporation Express Scripts. (Pet’r Des’g Evid., Ex. 1 ¶ 4, Ex. 2 ¶ 3.) In administering the prescription drug/pharmacy benefits of its health insurer clients (“Clients”), Express Scripts provides them “(i) wide access to a network of independent third-party retail pharmacies that provide discounted prescription drugs in most therapeutic categories, (ii) formulary design and implementation, (iii) concurrent drug interaction reviews, (iv) 1 In conjunction with its motion for partial summary judgment (“Motion”), the Department filed a brief entitled “Memorandum in Support of [its] Partial Motion to Dismiss or for Summary Judgment.” (See Resp’t Mem. Supp. Partial Mot. Dismiss [or] Summ. J. (“Resp’t Br.”).) The Department subsequently clarified that it made a mistake in naming that document and that it is only seeking partial summary judgment in this case. (See Hr’g Tr. at 6 (stating that its Motion is “not a partial motion to dismiss, it is a partial motion for summary judgment”).) 2 concurrent and retrospective drug utilization reviews, (v) claims processing and adjudication, and (vi) call center services[.]” (Pet’r Des’g Evid., Ex. 2 ¶ 9.) Clients pay a “Service Charge” to Express Scripts for the administration and management of their prescription drug/pharmacy benefits. (See Pet’r Des’g Evid., Ex. 2 ¶ 40.) To provide its Clients’ members or employees (“Members”) with “wide access” to discounted prescription drugs, Express Scripts negotiated contracts with over 60,000 local pharmacies (e.g., CVS, Walgreens, RiteAid).2 (Pet’r Des’g Evid., Ex. 2 ¶¶ 9, 12.) The contracts specify, among other things, that when filling a Member’s prescription, the local pharmacy must charge a negotiated rate that reflects both the “Ingredient Cost” for the dispensed drug and a “Dispensing Fee.” (Pet’r Des’g Evid., Ex. 2 ¶ 42.) Thus, in a typical scenario: 1) Member takes a prescription to local pharmacy to have it filled; 2) local pharmacy electronically notifies Express Scripts, which in turn: a) confirms the Member’s eligiblity and coverage for benefits; b) performs a concurrent drug interaction/utilization review, alerting local pharmacy to any possible drug interactions; and c) informs local pharmacy of any co-payment amount it must collect from the Member. 3) Express Scripts pays local pharmacy the difference between the negotiated rate for the dispensed drug and the Member’s co- payment. 2 The local pharmacies are independent contractors and not representatives or agents of Express Scripts; thus, they maintain their own licenses and insurance, use their own inventory when filling prescriptions, and dispense prescriptions in accordance with applicable professional standards. (See App. Pet’r Resp. Resp’t Mot. Summ. J., Vol. II (“Pet’r Des’g Evid.”), Ex. 2 ¶¶ 12, 14.) 3 (See Pet’r Des’g Evid., Ex. 1 ¶ 12, Ex. 2 ¶¶ 23, 42.) Express Scripts periodically bills its Clients its Service Charges. (See Pet’r Des’g Evid., Ex. 2 ¶ 42.) While the amount of the Service Charges billed varies from Client to Client, it always represents three components: (i) the Ingredient Costs of the prescription drugs dispensed by the local pharmacies during that period (reduced by the co-payments paid by Members to the local pharmacies); (ii) the local pharmacies’ Dispensing Fees; and (iii) Express Scripts’ administrative fee for that period. (See Pet’r Des’g Evid., Ex. 2 ¶ 41.) (See also Pet’r Des’g Evid., Ex. 3 at 42 ¶ 3.1 (indicating that Clients reimburse Express Scripts for what it paid to the local pharmacies).) As is relevant to this case, Express Scripts generated revenue from its Service Charges and from rebates it received from pharmaceutical manufacturers in return for including their drugs on Express Scripts’ Clients’ prescription drug formularies.3,4 (See Pet’r Des’g Evid., Ex. 2 ¶¶ 24-25, 35-36, 38, 40.) Having conducted business in Indiana during the years at issue, Express Scripts filed Indiana adjusted gross income tax returns for those years. (See Pet’r Des’g Evid., Ex. 1 ¶¶ 2, 13.) Express Scripts apportioned its income in accordance with Indiana’s statutory provisions applicable to service providers. (Pet’r Des’g Evid., Ex. 1 ¶ 14 (referring generally to Indiana Code § 6-3-2-2(f)).) In doing so, Express Scripts “determined that none of its revenue . should be sourced to Indiana because the greater proportion of its income 3 “A formulary is a list of generic and brand name prescription drugs covered by a pharmacy benefit plan.” (Pet’r Des’g Evid., Ex. 2 ¶ 24.) 4 Express Scripts shares with its Clients a portion of the rebates it receives from the pharmaceutical manufacturers. (Pet’r Des’g Evid., Ex. 2 ¶ 39.) 4 producing activities were incurred in a state other than Indiana.” (Pet’r Des’g Evid., Ex. 1 ¶ 15.) The Department subsequently audited Express Scripts and, in March of 2016, issued both an audit report and Proposed Assessments. (Pet’r Des’g Evid., Ex. 7 ¶¶ 11, 13, Ex. B.) The Department determined that Express Scripts was not a service provider because “[its] primary ‘revenue stream’ was attributable to buying, selling, and delivering prescription drugs in transactions which occurred within the state.” (Pet’r Des’g Evid., Ex. 7 ¶ 15, Ex. A at 3-4.) Consequently, the Department determined that Express Scripts’ receipts from its sale of prescription drugs should have been sourced to Indiana as required for sales of tangible personal property under Indiana Code § 6-3-2-2(e). (See generally Pet’r Des’g Evid., Ex. 7 ¶ 15, Ex. A at 4-12.) Express Scripts timely protested the Proposed Assessments. After conducting an administrative hearing on the protest on September 6, 2016, the Department referred the matter back to its Audit Division. (Pet’r Des’g Evid., Ex. 7 ¶¶ 17-18.) On March 4, 2019, the Department issued a Letter of Findings that upheld the Proposed Assessments in their entirety. (Pet’r Des’g Evid., Ex. 7 ¶ 34, Ex. A at 12.) On May 23, 2019, Express Scripts intiated an original tax appeal. On February 17, 2020, the Department filed its Motion.5 The Court conducted a hearing on the Motion on 5 The Department explains that it seeks partial summary judgment because a judgment in its favor would still not address the calculation of Express Scripts’ income from its retail sales in Indiana. (See Resp’t Br. at 3 (stating that “the proper calculation for [an] adjustment to account for the retail sales in Indiana is more a factual question which [] cannot be determined at this time”).) 5 April 30, 2020. Additional facts will be supplied when necessary. LAW During the years at issue, all corporations were subject to an Indiana tax “on [the] part of the[ir] adjusted gross income derived from sources within Indiana[.]” IND. CODE § 6- 3-2-1(b) (2011) (amended 2013). The computation of this liability “beg[an] with federal taxable income, to which [the] taxpayer ma[de] expressly enumerated adjustments under Indiana Code § 6-3-1-3.5(b)[.]” Indiana Dep’t of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579, 581 (Ind. 2014). The corporate taxpayer doing business in more than one state then needed to determine what portion of its adjusted gross income was derived from sources within Indiana. See I.C. § 6-3-2-1(b). This determination required the corporation to apply the applicable allocation and apportionment rules set forth in Indiana Code § 6-3-2-2(a)-(k), referred to as the “Standard Sourcing Rules.” See IND. CODE § 6-3-2-2(a)-(k) (2011) (amended 2015). See also Indiana Dep’t of State Revenue v.
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