IN THE
INDIANA TAX COURT
CASE NO. 49T10-9701-TA-00072

L.H. CARBIDE CORP.,                                                                                                      )
                                                                                                                              )
    Petitioner,                                                                                                               )
                                                                                                                              )
    v.                                                                                                                        )
                                                                                                                              )
STATE BOARD OF TAX COMMISSIONERS,                                                                                             )
                                                                                                                              )
    Respondent.                                                                                                               )
ORDER
March 19, 1998
On February 26, 1998, the Petitioner, L.H. Carbide Corporation (Carbide ), and the Respondent, the State Board of Tax Commissioners (State Board ), appeared before the Court for
oral argument on the State Board's Motion to Dismiss. On January 13, 1992, Carbide filed Form 133 Petitions for the Correction of Errors for the tax years 1989, 1990, 1991 with the Auditor of Allen County, Indiana (County).See footnote 1 See Ind. Code Ann. § 6-1.1-15-12 (West 1989) (amended 1993, 1995 & 1997). The petitions were not acted on for more than five years and were never forwarded by the County to the State Board. (Brooks Aff. at 1). On January 6, 1997, Carbide filed an original tax appeal in this Court. The State Board filed a Motion to Dismiss claiming

that Carbide failed to exhaust its administrative remedies and thus this Court lacks jurisdiction. The State Board argues that “two steps must occur in the administrative appeal process with regard to 133 petitions before [this] Court is vested with subject matter jurisdiction. First, the State Board must receive the form 133. Second, the State Board must issue a final determination upon it.” (Resp't Mot. to Dismiss at 4). The State Board claims that it has not received a Form 133 from the County and that Carbide has never received a final determination from the State Board. Therefore, Carbide has not exhausted its administrative remedies and this Court does not have jurisdiction to hear this matter.
    Carbide argues that this Court has jurisdiction based on the State Board's failure to act and this Court's decision in Bielski v. Zorn, 627 N.E.2d 880 (Ind. Tax Ct. 1994). In Bielski, this Court held that the failure of the State Board to review a petition constitutes a final determination. Id. at 885.
    As a starting point in its analysis, this Court notes that it is dealing with its subject matter jurisdiction. This Court has “exclusive jurisdiction over any case that arises under the tax laws of this state and that is an initial appeal of a final determination” of the State Board or the Department of Revenue. See Ind. Code Ann. § 33-3-5-2(a) (West 1996). However, in this instance both the County and the State Board have failed to issue a final determination. This inaction by the County and the State Board has erected a barrier to Carbide's ability to have errors in its assessment corrected. No statutes or regulations provide a resolution for instances where a county has failed to act on a Form 133 petition or forward a Form 133 petition to the State Board.
    Taxpayers have a statutory right to have errors in their assessment corrected. See Ind.

Code Ann. § 6-1.1-15-12. Through the inaction of the County, Carbide's statutory right has been ignored. The State Board asks this Court to dismiss Carbide's petition because the County has not acted and the State Board itself has not issued a final determination. (Resp't Mot. to Dismiss at 4). This would put the statutory rights of the taxpayer at the mercy of County and State Board inaction.See footnote 2 Cf. Zakutansky v. State Bd. of Tax Comm'rs, 64T10-9410-TA-00227, slip op. at 4-5 (Ind. Tax Ct. February 13, 1998). Such a result is absurd. Id. The legislature could not have intended to allow inaction on the part of the County and the State Board to effectively eliminate a taxpayer's right to have errors in an assessment corrected.
    The Court having heard the argument of counsel and being duly advised in the premises now finds that both parties have failed to pursue a resolution of the issue at hand. In short, neither party has insisted that the County act on the Form 133 petitions filed by Carbide. Carbide has failed to insist that the County act and has allowed more than five years to elapse without following up on its Form 133 filings. The State Board, having been advised of the inaction by the County by the filing of Carbide's original tax appeal, failed to assist Carbide in requesting that the County act on the Form 133 petitions.


    The Court now ORDERS Carbide to present a copy of the timely filed January 13, 1992 Form 133 petitions to the appropriate Allen County officials for action.See footnote 3 If the County approves the petitions, then this matter will have been resolved with no further action necessary. If the County denies the petitions, then the County shall give Carbide notice of that denial and Carbide will have 30 days to appeal the county's determination to the State Board. See Ind. Code Ann. § 6-1.1-15-12(e) (West Supp. 1997). If the State Board denies the petitions, the matter may be appealed to this Court. See Ind. Code Ann. § 6-1.1-15-5 (West 1989) (amended 1990 & 1997).
    If the County fails to act on the petitions within 90 days of Carbide's submission of the Form 133 petitions, the State Board is ORDERED to use its good offices to induce the County to act. If the County does not act within 60 days thereafter, Carbide is GRANTED leave to join any necessary county officials in this action. This cause shall remain open pending resolution of the issues presented in Carbide's Form 133 petitions. The proceedings on the Form 130 and 131 petitions are STAYED until further order of the Court.

    IT IS SO ORDERED.


Thomas G. Fisher, Judge
Indiana Tax Court


Distribution to:

David L. Pippen
Dickinson & Abel
8900 Keystone Crossing, Suite 1095
Indianapolis, Indiana 46240


Jeffrey A. Modisett
Attorney General of Indiana
By: Vincent Mirkov
Deputy Attorney General
Indiana Government Center South, 5th Floor
Indianapolis, Indiana 46204-2770


Footnote:     1 During oral argument, the State Board argued that there was no proof that Carbide's Form 133 petitions were filed with the County. The State Board claimed that there was no file stamp on the Form 133 petitions showing they were received by the County. However, Carbide produced a copy of a cover letter mailed with the original Form 133 petitions that bears the file stamp of the County showing the Form 133 petitions were received and filed on January 13, 1992. Based on the file stamp on the cover letter, this Court finds that the Form 133 petitions were filed and received by the County.
Footnote:     2 The State Board claims that it could not possibly have acted on Carbide's Form 133 petitions because the County did not forward the Form 133 petitions to the State Board. (Tr. at 6). However, when Carbide filed its original tax appeal with this Court, the State Board was thus informed of the 1992 filing with the County and the County's failure to act. The State Board did nothing. After Carbide filed its original tax appeal, the State Board could have asked this Court for a stay to provide it time to ask the County to investigate and act or could have sought resolution of the matter through an agreement to review the Form 133 itself. Instead, the State Board seeks to shuffle the blame for inaction on the Form 133 to everyone except itself. Although fault for inaction clearly lies partly with the County and Carbide, the State Board is charged with administering the property tax laws of Indiana. See Ind. Code Ann. §§ 6-1.1-31 (West 1989 & Supp. 1997).
Footnote:     3 The Court notes that no action has been taken on Carbide's Form 133 petitions by the County or the State Board. The petitions were timely filed and are therefore still pending resolution. This order does not change the active status of the initial January 13, 1992 Form 133 petitions.

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