ATTORNEY FOR PETITIONERS: ATTORNEYS FOR RESPONDENT:
GARY M. TIMPE STEVE CARTER
TIMPE LEGAL SERVICES, LLC ATTORNEY GENERAL OF INDIANA
Indianapolis, IN Indianapolis, IN
JOHN D. SNETHEN
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
WILLIAM and DOROTHY LONG, )
v. ) Cause No. 49T10-0404-TA-20
WAYNE TOWNSHIP ASSESSOR, )
ORDER ON RESPONDENTS MOTION TO DISMISS
January 12, 2005
The Petitioners, William and Dorothy Long (the Longs), appeal from a final determination
of the Indiana Board of Tax Review (Indiana Board) assessing their real property
for the 2002 assessment. The matter is currently before the Court on
the Wayne Township Assessors (Assessor) motion to dismiss. For the reasons stated
below, the Court DENIES the Assessors motion.
FACTS AND PROCEDURAL HISTORY
The Longs own land and a multi-family, row-type dwelling in Indianapolis,
Indiana. For the 2002 assessment, the property was assigned an assessed value
Believing this value to be too high, the Longs appealed the assessment to
the Indiana Board. On December 16, 2003, the Indiana Board conducted a
hearing on the Longs appeal. On March 15, 2004, the Indiana Board
issued a final determination in which it affirmed the assessment.
The Longs filed an appeal with this Court on April 29, 2004.
On June 3, 2004, the Assessor moved to dismiss the case on the
basis that the Court lacked subject matter jurisdiction. More specifically, the Assessor
asserted that, pursuant to Indiana Code § 4-21.5-5-13, the Longs were required to
file a copy of the administrative record with the Court by June 1,
2004 and they failed to do so. Both parties waived a
hearing on the matter. Additional facts will be supplied as necessary.
ANALYSIS AND OPINION
The sole issue currently before the Court is whether it has jurisdiction
over the Longs appeal. Every action has three jurisdictional elements: 1)
jurisdiction of the subject matter; 2) jurisdiction of the person; and 3) jurisdiction
of the particular case. Carroll County Rural Elec. Membership Corp. v. Indiana
Dept of State Revenue, 733 N.E.2d 44, 47 (Ind. Tax Ct. 2000) (citation
omitted). The Assessor maintains that this Court lacks subject matter jurisdiction over
the Longs appeal and therefore the case must be dismissed.
Subject matter jurisdiction is the power of a court to hear and determine
the general class of cases to which the proceedings before it belong.
Musgrave v. State Bd. of Tax Commrs, 658 N.E.2d 135, 138 (Ind. Tax
Ct. 1995). A determination as to whether subject matter jurisdiction exists depends
on whether the type of claim advanced by the petitioner falls within the
general scope of authority conferred upon the court by constitution or statute.
The general scope of authority conferred upon the Tax Court is governed by
Indiana Code § 33-26-3-1. This statute provides that the Tax Court has
exclusive jurisdiction over any case that arises under the tax laws of Indiana
and that is an initial appeal of a final determination made by the
Indiana Board. Ind. Code Ann. § 33-26-3-1 (West Supp. 2004). The
Longs appeal meets both jurisdictional prerequisites. First, they challenge the assessment of
Indianas property tax. Second, they appeal initially from a final determination of
the Indiana Board. Thus, this Court has subject matter jurisdiction over the
Nevertheless, as the Court stated earlier, every action has three jurisdictional elements.
Carroll County, 733 N.E.2d at 47. Consequently, because the Court maintains subject
matter jurisdiction does not necessarily mean that it has jurisdiction over the particular
case. Jurisdiction over the particular case refers to the right, authority, and
power to hear and determine a specific case within the class of cases
over which a court has subject matter jurisdiction. Id. at 50 (quoting
Adler v. Adler, 713 N.E.2d 348, 352 (Ind.
Ct. App. 1999) (citation omitted)).
The Court, therefore,
construes the Assessors argument as a challenge to its jurisdiction over
this particular case.
When this Court has subject matter jurisdiction over a case pursuant to Indiana
Code § 33-26-3-1, Indiana Code § 6-1.1-15-5(b) provides, generally, that the appeal is
subject to the provisions of Indiana Code § 4-21.5-5 - otherwise known as
the Administrative Orders and Procedures Act (AOPA).
See Ind. Code Ann. §
6-1.1-15-5(b) (West Supp. 2004). In turn, Indiana Code § 4-21.5-5-13 provides that
[w]ithin thirty (30) days after the filing of the petition, or within further
time allowed by the court or by other law, the petitioner shall transmit
to the court the original or a certified copy of the agency record
for judicial review of the agency action[.] Ind. Code Ann. § 4-21.5-5-13(a)
(West Supp. 2004). Failure to file the record within the time permitted
. . . is cause for dismissal of the petition for review by
the court, on its own motion, or on petition of any party of
record to the proceeding. A.I.C. § 4-21.5-5-13(b). It is this statute,
the Assessor argues, that requires the Court to dismiss the Longs case.
The Court, however, disagrees.
Indiana courts of general jurisdiction review agency decisions exclusively under AOPA. This
Court, however, reviews agency decisions not only in light of Indiana Code §
33-3-5 and § 6-1.1-15, but also in light of its own rules of
procedure. Accordingly, Indiana Tax Court Rule 3(E) provides that
[i]n original tax appeals [from final determinations of the Indiana Board], the petitioner
shall request the Indiana Board  to prepare a certified copy of the
agency record within thirty (30) days after filing the petition. . . .
The petitioner shall transmit a certified copy of the record to the Tax
Court within (30) days after having received notification from the Indiana Board 
that the record has been prepared.
Ind. Tax Court Rule 3(E). Thus, under the provisions of this rule,
a petitioner may have more than thirty days after the filing of its
petition to file the record. To that end, Indiana Code § 4-21.5-5-13
and Indiana Tax Court Rule 3(E) conflict.
When a rule of procedure and a statute conflict, the rule will govern.
Ziegler v. Indiana Dept of State Revenue, 797 N.E.2d 881, 886 (Ind.
Tax Ct. 2003) (citing Jackson v. City of Jeffersonville, 771 N.E.2d 703, 705
(Ind. Ct. App. 2002), trans. denied) (footnote added). Consequently, when a taxpayer
appeals a final determination of the Indiana Board to this Court, the taxpayer
is not subject to the provisions of Indiana Code § 4-21.5-5-13, but rather
to the provisions of Indiana Tax Court Rule 3(E).
The Longs have informed this Court that they requested the agency record from
the Indiana Board on April 30, 2004, and that they received notice from
the Indiana Board that the record was prepared on June 2, 2004.See footnote
Pursuant to Indiana Tax Court Rule 3(E), the Longs had thirty
days after receiving that notice to file the record with the Court.
They filed the record on June 7, 2004 well within the time
frame prescribed by Tax Court Rule 3(E).
For the above stated reasons, the Assessors motion to dismiss is DENIED.
A separate opinion, in which the Court will decide the merits of the
Longs appeal, is forthcoming.
SO ORDERED this 12th day of January, 2005.
Thomas G. Fisher,
Indiana Tax Court
Gary M. Timpe
TIMPE LEGAL SERVICES, LLC
4212 West 71st Street, Suite C
Indianapolis, IN 46268
Attorney General of Indiana
By: John D. Snethen
Deputy Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington St.
Indianapolis, IN 46204-2770
The Assessor did not raise this particular type of jurisdictional challenge;
nevertheless, the Court examines the issue
sua sponte. See Thousand Trails, Inc.
v. State Bd. of Tax Commrs, 757 N.E.2d 1072, 1075 n.5 (Ind. Tax
Ct. 2001). The appropriate means for a party to challenge a courts
jurisdiction over a particular case is a motion under Indiana Trial Rule 12(B)(6).
Carroll County Rural Elec. Membership Corp. v. Indiana Dept of State Revenue,
733 N.E.2d 44, 50 (Ind. Tax Ct. 2000).
To be "in conflict," the rule of procedure and the statute
must be incompatible to the extent that both could not apply in a
Ziegler v. Indiana Dept of State Revenue, 797 N.E.2d 881,
886 (Ind. Tax Ct. 2003) (citing Jackson v. City of Jeffersonville, 771 N.E.2d
703, 705 (Ind. Ct. App. 2002), trans. denied).
This information was contained in a motion the Longs filed with
this Court on June 2, 2004. (
See Petrs Mot. for Extension of
Time, ¶ 1,3.) The Assessor has provided no evidence contradicting the information
contained in this motion.