_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

JACK GRAY TRANSPORT, INC. et al.,                                         )
                                                                               )
    Petitioners,                                                               )
                                                                               )
    v.                                                                         )   Cause No. 49T10-0002-TA-14
                                                                               )
INDIANA DEPARTMENT OF                                                          )
STATE REVENUE,                                                                 )
                                                                               )
    Respondent.                                                                )    
 ______________________________________________________________________
    
                                                 

ORDER ON MOTION TO DISMISS


NOT FOR PUBLICATION
April 18, 2002

FISHER, J.

    The Respondent, Indiana Department of State Revenue (Department), moves for partial summary judgment against eight of the thirty-nine Petitioners. See footnote Specifically, the Department alleges that this Court lacks subject matter jurisdiction as to all or some of the claims of the following petitioners: (1) Boncosky Transportation, Inc.; (2) Browning-Ferris Industries of Indiana; (3) Bulkmatic Transport Company; (4) Groendyke Transport, Inc.; (5) Illiana Disposal & Recycling; (6) Matlack, Inc.; (7) Roeder Cartage Co., Inc.; and (8) Sellyer Transport, Inc. Therefore, the sole issue is whether this Court has subject matter jurisdiction over these eight petitioners.
    For the reasons stated below, the Court GRANTS, in part, and DENIES, in part, the Department’s motion to dismiss for lack of subject matter jurisdiction.
FACTS AND PROCEDURAL HISTORY See footnote

    Between January and March 2000, the Department sent each of the eight Petitioners an “Order Denying Refund,” which stated that the order was in regards to their refund claim currently filed with the Department. (Pet’rs Designation of Evidence, Exs. B-H.) The quarters of the Petitioners’ refund claims filed with the Department at that time were for various quarters of 1997 and 1998. See footnote (Pet’rs Designation of Evidence, Exs. B-H at 2.) The order, however, also stated the Department’s position on refund claims for the second, third, and fourth quarters of 1998 and the first and second quarters of 1999. Specifically, the order stated:
The Department has no statutory authority to pay refunds for all non-highway usage for any period BETWEEN THE DATE OF THE TAX COURT DECISION [in Bulkmatic Transport Co. v. Indiana Dep’t of State Revenue, 691 N.E.2d 1371 (Ind. Tax Ct. 1998)] See footnote AND JULY 1, 1999, when the statute was amended. Therefore, the Department must deny all proportional use refund claims for the affected periods. The enclosed spreadsheet indicates the periods that were approved and/or denied.

(Pet’rs Designation of Evidence, Exs. B-H (original emphasis) (footnote added).) The Department “erroneously and prematurely” sent this order to the Petitioners who had not yet filed a refund claim for the second, third, and fourth quarters of 1998 and the first and second quarters of 1999.See footnote (Resp’t Reply Br. at 1.)
    On February 10, 2000, Jack Gray filed an original tax appeal with this Court, challenging Department’s final determination wherein the Department declined to apply Indiana’s proportional use exemption to the motor fuel and surcharge taxes under Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) for the second, third, and fourth quarters of 1998 and the first two quarters of 1999. Jack Gray also requested that this Court certify this case as a class action with Jack Gray as class representative. On April 20, 2000, Jack Gray filed a motion to add additional petitioners, which included the eight Petitioners at issue, and attached a proposed amended complaint to that motion. On May 5, 2000, this Court granted Jack Gray’s motion to add additional parties and deemed that the amended complaint was filed as of that date. In that amended complaint, Jack Gray alleged that the eight Petitioners had filed refund claims with the Department for the five quarters at issue and that each of the Petitioners’ refund claims had been denied by the Department. However, none of the eight Petitioners at issue, except Illiana Disposal, had received a refund denial from the Department for the five quarters at issue on or before May 5, 2000. See footnote
    On June 5, 2000, the Department filed a motion to dismiss, which this Court treated as a motion for summary judgment. See Jack Gray Transport, Inc. v. Indiana Dep’t of State Revenue, 744 N.E.2d 1071, 1073 n.3 (Ind. Tax Ct. 2001), reh’g granted in part. In its motion, the Department argued that this Court’s opinions in Bulkmatic Transp. Co. v. Indiana Dep’t of State Revenue, 691 N.E.2d 1371 (Ind. Tax Ct. 1998) (Bulkmatic II) and Bulkmatic Transp. Co. v. Indiana Dep’t of State Revenue, 715 N.E.2d 26 (Ind. Tax Ct. 1999) (Bulkmatic III) held that the statutes under which the Petitioners sought their refunds, Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d), were wholly unconstitutional and thereby authorized the Department to deny the exemptions at issue.
    In its published opinion issued on February 20, 2001, this Court denied Jack Gray’s request for class certification. Jack Gray, 744 N.E.2d at 1077. The Court concluded that the Bulkmatic II and III opinions did not find Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) unconstitutional on the whole See footnote and did not authorize the Department to deny the parties’ exemptions and claims for refund for the quarters at issue. This Court denied the Department’s motion for summary judgment, entered summary judgment in favor of Jack Gray and the other thirty-eight Petitioners, and instructed the Department to grant the exemptions and issue refunds to each the Petitioners. Id.
    Both parties then petitioned for rehearing. Jack Gray petitioned for rehearing from this Court’s determination that class certification should be denied. In the Department’s petition for rehearing, it argued that it should have been given an opportunity to present material evidence as to the subject matter jurisdiction of all added petitioners. The Department also argued that this Court should vacate its judgment against the Department.
    In an unpublished opinion issued on June 8, 2001, this Court denied Jack Gray’s petition for rehearing. Jack Gray Transport, Inc. v. Indiana Dep’t of State Revenue, No. 49T10-0002-TA-14 (Ind. Tax Ct. June 8, 2001) (unpublished order). The Court granted the part of the Department’s petition allowing it time See footnote to investigate whether all joined petitioners had filed a claim for refund or met other jurisdictional requirements and denied the part of the Department’s petition requesting the Court to vacate its judgment. Id. at 4 n.3, 6.
    On October 5, 2001, the Department moved for partial summary judgment against Boncosky, Browning-Ferris, Bulkmatic, Groendyke, Illiana Disposal, Matlack, Roeder, and Sellyer, claiming that this Court lacks subject matter jurisdiction as to all or some of their claims because the amended petition was filed with this Court before they had received a final determination from the Department denying their refund claims for the quarters at issue. See footnote The Court held a hearing on March 11, 2002. Additional facts will be provided as necessary.

ANALYSIS AND OPINION
Standard of Review

    In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court may consider not only the complaint and motion but also any affidavits or evidence submitted in support. GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 2001). In addition, the court may weigh the evidence to determine the existence of the requisite jurisdictional facts. Id.
Discussion

    The Department argues that, under Indiana Code § 6-8.1-9-1(c)(3), this Court does not have subject matter jurisdiction over all or part of the eight Petitioners’ claims because the Petitioners’ amended tax petition was filed this Court before: (1) the Department issued a final determination on their refund claims and (2) the 181st day after the date that the Petitioners filed their refund claims with the Department. The Petitioners argue that the respective Orders Denying Refund that they each received between January to March 2000, which were issued before they filed their refund claims with the Department for the quarters in question, constituted a final determination for each petitioner from which they could appeal to the Tax Court.
    “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.” Carroll County Rural Elec. Membership Corp. v. Indiana Dep’t of State Revenue, 733 N.E.2d 44, 47 (Ind. Tax Ct. 2000). Whether a court has subject matter jurisdiction “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.” Id. (quoting Musgrave v. State Bd. of Tax Comm’rs, 658 N.E.2d 135, 138 (Ind. Tax Ct. 1995)).
    The general scope of authority conferred upon the Tax Court is governed by Indiana Code § 33-3-5-2(a)(1). This section provides that the Tax Court is a court of limited jurisdiction and has exclusive jurisdiction over any case that: (1) arises under the tax laws of Indiana and (2) is an initial appeal of a final determination made by the Department. Ind. Code § 33-3-5-2(a)(1); see also Carroll County Rural Elec. Membership Corp., 733 N.E.2d at 47. Indiana Code § 33-3-5-11(a) states that “[i]f a taxpayer fails to comply with any statutory requirement for the initiation of an original tax appeal, the tax court does not have jurisdiction to hear the appeal.” Ind. Code § 33-3-5-11. Indiana Code § 6-8.1-9-1(c) states that the Tax Court does not have jurisdiction over a refund case if:
the appeal is filed more than three (3) years after the date the claim for refund was filed with the department;

the appeal is filed more than ninety (90) days after the date the department mails the decision of denial to the person; or

the appeal is filed both before the decision is issued and before the one hundred eighty-first day after the date the person files the claim for refund with the department.

Ind. Code § 6-8.1-9-1(c). Thus, the Tax Court’s jurisdiction is also dependent upon when the appeal from the Department is filed in this Court. Hyatt Corp. v. Indiana Dep’t of State Revenue, 695 N.E.2d 1051, 1053 (Ind. Tax Ct. 1998), review denied.
    This Court agrees, in part, with the Department’s contention that this Court lacks subject matter jurisdiction over some of the Petitioners’ claims. Specifically, this Court lacks subject matter jurisdiction over the claims of Bulkmatic, Matlack, Groendyke, Boncosky, Sellyer, Roeder, and Browning-Ferris because the Department had not denied their refund claims for the specific quarters at issue before they appealed to this Court on May 5, 2000.
    The dates of these seven Petitioners’ refund claims and denial of refund are as follows:
On February 22, 2000, Bulkmatic filed a refund claim for the second, third, and fourth quarters of 1998. On May 23, 2000, the Department issued its final determination denying this claim.

On February 29, 2000, Matlack filed a refund claim for the second, third, and fourth quarters of 1998 and for the first and second quarters of 1999. On May 22, 2000, the Department issued its final determination denying this claim.

On March 10, 2000, Groendyke filed a refund claim for the second, third, and fourth quarters of 1998. On May 24, 2000, the Department issued its final determination denying this claim.

On April 13, 2002, Boncosky filed a refund claim for the first and second quarter of 1999. On May 4, 2000, Boncosky filed a refund claim for the third quarter of 1998. On June 8, 2000, the Department issued its final determination denying these claims.

On April 20, 2000, Sellyer filed a refund claim for the second, third, and fourth quarters of 1998 and for the first and second quarters of 1999. On June 8, 2000, the Department issued its final determination denying this claim.
On April 24, 2000, Roeder filed a refund claim for the second, third, and fourth quarters of 1998 and for the first and second quarters of 1999. On June 8, 2000, the Department issued its final determination denying this claim.

On May 11, 2000, Browning-Ferris filed a refund claim for the first and second quarters of 1999. On May 15, 2000, the Department issued its final determination denying this claim.

    The Court deemed these seven Petitioners’ original tax appeal filed on May 5, 2000, when it granted Jack Gray’s motion to add parties and to amend the tax petition. However, the Petitioners filed their tax appeal before the Department denied each of their refund claims and before the 181st day following the date that each of them filed their refund claims. Therefore, this Court lacks subject matter jurisdiction as to the above listed refund claims of these seven Petitioners. See I.C. § 6-8.1-9-1(c). Accordingly, the Court GRANTS, in part, the Department’s motion to dismiss these seven Petitioners on the specific quarters listed above.
    The Court does, however, have jurisdiction over Illiana Disposal’s claim. On February 2, 2000, Illiana Disposal filed a refund claim for the first quarter of 1999. On May 5, 2000, the Department issued its final determination denying this claim. Because Illiana Disposal’s tax petition was deemed filed with the Tax Court on the same day the Department issued a final determination on Illiana Disposal’s refund claim, this Court has subject matter jurisdiction over Illiana Disposal’s claim. See I.C. § 6-8.1-9-1(c). Therefore, the Court DENIES the Department’s motion to dismiss Illiana Disposal.
    Finally, this Court rejects Petitioners’ argument that the erroneously sent “Order Denying Refund,” which was issued before the Petitioners filed their refund claims with the Department for the specific quarters in question, was a final determination from which they could appeal to the Tax Court. In effect, the Petitioners argue that they need not follow the steps of the administrative process for filing a refund appeal because the Department had indicated its position on all potential claims for the second, third, and fourth quarters of 1998 and the first two quarters of 1999 in that order. (See Pet’rs Designation of Evidence, Exs. B-H.) Although the Petitioners state that the usual sequence in a refund appeal is to: (1) file a refund claim with the Department; (2) receive a denial order from the Department; and (3) appeal that denial to the Tax Court, they claim that the statute does not require that it be done in that order. (Trial Tr. at 11.) This Court disagrees.
    Indiana Code § 6-8.1-9-1 clearly indicates that a petitioner must follow a certain process before appealing to this Court. If a petitioner believes that he has paid more tax than is “legally due for a particular taxable period,” then he may file a refund claim with the Department for that particular taxable period. Ind. Code § 6-8.1-9-1(a). Thereafter, the Department will issue a decision either granting or denying the refund. Ind. Code § 6-8.1-9-1(b). If the petitioner disagrees with the Department’s decision, then he may appeal to the Tax Court. Ind. Code § 6-8.1-9-1(c). In short, a petitioner may only appeal a refund claim to the Tax Court once he has filed a refund claim with the Department and had that claim denied by the Department. See State v. Sproles, 672 N.E.2d 1353, 1357, 1361 (Ind. 1996) (citing Ind. Code § 6-8.1-9-1).
    Here, the Petitioners did not follow the steps of the administrative process in the order proscribed by statute. Despite the fact that the Department “erroneously and prematurely” sent out this order discussing its position on potential refund claims for the five quarters at issue, the order did not serve as a denial of the five quarters in question because the Petitioners had not yet filed a refund claim with the Department for those five quarters. See footnote Thus, the Petitioners were still required to follow the statutory procedures set forth for filing a refund claim. The Petitioners began that process once they filed their refund claims for those five quarters. However, they skipped an administrative step when they appealed their refund claims with this Court before the Department had denied those specific refund claims. Because the Department had not issued a denial order for the particular taxable periods set for in the Petitioners’ refund claims, this Court lacks subject matter jurisdiction. See Ind. Code §§ 6-8.1-9-1(c)(3); 33-3-5-11(a). Therefore, this Court GRANTS, in part, the Department’s motion to dismiss the above referenced claims of Boncosky, Browning-Ferris, Bulkmatic, Groendyke, Matlack, Roeder, and Sellyer and DENIES the Department’s motion to dismiss Illiana Disposal.

CONCLUSION

    For the foregoing reasons, the Court GRANTS, in part, the Department’s motion to dismiss the refund claims of Boncosky, Browning-Ferris, See footnote Bulkmatic, Groendyke, Matlack, Roeder, and Sellyer for lack of subject matter jurisdiction. The Court DENIES the Department’s motion to dismiss Illiana Disposal.
    The Court now enters final judgment as to all Petitioners’ claims over which it has
subject matter jurisdiction.


         _____________________________
            Thomas G. Fisher, Judge
            Indiana Tax Court

Dated: ____________________


Distribution:

Robert W. Loser, II    
Patrick M. O’Brien    
Michael R. Franceschini        
William S. Ayres
Ruth E. Myer
AYRES CARR & SULLIVAN, P.C.
251 East Ohio Street, Suite 500
Indianapolis, Indiana 46204

Steve Carter
Attorney General of Indiana
By: David A. Arthur
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770




Footnote:      Upon motion by Jack Gray, this Court joined the thirty-eight other petitioners in this case on May 5, 2000.

Footnote: For a more detailed factual and procedural history of this case, see Jack Gray Transport, Inc. v. Indiana Dep’t of State Revenue, 744 N.E.2d 1071, 1073-74 (Ind. Tax Ct. 2001), reh’g granted in part and Jack Gray Transport, Inc. v. Indiana Dep’t of State Revenue, No. 49T10-0002-TA-14 (Ind. Tax Ct. June 8, 2001) (unpublished order).


Footnote: Specifically, the Petitioners had filed refund claims with the Department for the following quarters: Boncosky – first quarter of 1998; Browning-Ferris – last two quarters of 1997, all four quarters of 1998; Groendyke – first quarter of 1998; Illiana Disposal – all four quarters of 1997 and 1998; Matlack – first quarter of 1998; Roeder – first quarter of 1998; and Sellyer – first quarter of 1998. (Pet’rs Designation of Evidence, Exs. B-H at 2.)


Footnote: This Court issued its opinion in Bulkmatic on February 13, 1998.


Footnote: Because Browning-Ferris and Illiana Disposal had filed refund claims for second, third, and fourth quarters of 1998 before receiving this “Order Denying Refund,” the order was not prematurely sent to them. ( See Pet’rs Exs. C, E.) Therefore, the Department does not contest this Court’s subject matter jurisdiction over Browning-Ferris and Illiana Disposal’s claims for those three quarters. (Resp’t Mem. in Support of Summ. J. at 4-5.)


Footnote: Browning-Ferris’ refund claims for second, third, and fourth quarters of 1998, however, had been denied by the Department prior to the May 5, 2000, filing date of the amended complaint. See n.5 supra.


Footnote: This Court found that only the limiting clause “in Indiana” contained in Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) was unconstitutional and that the effect of the Bulkmatic opinions was to sever this infirm part of the statutes and leave the remainder of the statutes intact. Jack Gray, 744 N.E.2d at 1077.

Footnote: The Court gave the Department 120 days to investigate the propriety of the thirty-eight petitioners’ claims and to present any claims that may need to be dismissed due to a lack of subject matter jurisdiction.


Footnote: The Department improperly raised its subject matter jurisdiction argument in a motion for summary judgment. An attack on the Court’s subject matter jurisdiction cannot form the basis of a summary judgment motion. Tippmann v. Hensler, 716 N.E.2d 372, 374 (Ind. 1999). “[S]ubject matter jurisdiction cannot be resolved by means of summary judgment because the court has no jurisdiction to enter a judgment if it has no jurisdiction of the subject matter of the action.” Owens v. DSM Engineering Plastics, Inc., 641 N.E.2d 1271, 1272 (Ind. Ct. App. 1994). The appropriate manner to dispose of the issue of subject matter jurisdiction is by a motion to dismiss under Trial Rule 12(B)(1). Id. Therefore, this Court will treat the Department’s summary judgment motion as a motion to dismiss.

Footnote: While the Department’s orders sent erroneously and prematurely have no legal effect in this case, they nevertheless were misleading.


Footnote: As discussed in nn. 5 & 6, supra, the Court does have subject matter jurisdiction over Browning-Ferris’ refund claims for the second, third, and fourth quarters of 1998. Therefore, those specific claims are not dismissed.