ATTORNEY FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
ROBERT M. FRYE    STEVE CARTER    
FOLEY & POOL, LLP    ATTORNEY GENERAL OF INDIANA
Indianapolis, IN     Indianapolis, IN
    
     TED J. HOLADAY
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN

_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

SHELBY STREET REALTY CORP.,                                               )
n/k/a MERCHANDISE WAREHOUSE, INC.,                                             )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )       Cause No. 49T10-0205-TA-46
                                                                               )
PERRY TOWNSHIP ASSESSOR,                                                       )
                                                                               )
    Respondent.                                                                )    
 _____________________________________________________________________
     
                                                 

ORDER ON RESPONDENT’S MOTION TO DISMISS


NOT FOR PUBLICATION
April 26, 2004


FISHER, J.

Shelby Street Realty Corp., n/k/a Merchandise Warehouse, Inc. (MWI), appeals the final determination of the Indiana Board of Tax Review (Indiana Board) assessing its real property for the 1997 tax year. The matter is currently before the Court on the Perry Township Assessor’s (Assessor) motion to dismiss. For the reasons stated below, the Court DENIES the Assessor’s motion.

FACTS AND PROCEDURAL HISTORY

MWI owns several multi-tenant warehouses in Perry Township, Marion County, Indiana. Believing the obsolescence depreciation assigned to its warehouses for the 1997 assessment to be too low, MWI filed a Form 130 Petition for Review with the Marion County Property Tax Assessment Board of Appeals (PTABOA). The PTABOA declined to adjust the assessment.
On May 24, 2000, MWI filed a Form 131 Petition for Review with the State Board of Tax Commissioners (State Board) requesting review of the PTABOA’s decision. After the State Board conducted an administrative hearing, the Indiana Board See footnote issued a final determination on March 21, 2002, in which it affirmed the PTABOA’s decision. On May 6, 2002, MWI appealed the Indiana Board’s final determination to this Court.
After receiving briefs from both MWI and the Assessor, the Court scheduled oral argument for October 31, 2003. During the oral argument, however, the Court noted that MWI had not filed a copy of the Certified Administrative Record (Record) with the Court. Both parties, however, had copies of the Record (albeit they were not file-stamped). The Court continued with the oral argument, taking the matter under advisement.
MWI filed the Record with the Court on November 6, 2003. On November 12, 2003, the Assessor moved to dismiss MWI’s appeal on the basis that the Court lacked subject matter jurisdiction. More specifically, the Assessor alleged that MWI failed to timely file a copy of the Record as mandated by either Indiana Code § 6-1.1-15-5(b) or Indiana Tax Court Rule 3(E). The Court conducted a hearing on the Assessor’s motion on January 9, 2004. Additional facts will be provided as needed.
ANALYSIS AND OPINION

The sole issue currently before the Court is whether it has jurisdiction over MWI’s 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 Dep’t 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 MWI’s 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 Comm’rs, 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.” Id.
The general scope of authority conferred upon the Tax Court is governed by Indiana Code § 33-3-5-2. 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. § 33-3-5-2(a)(2) (West Supp. 2003). MWI’s appeal meets both jurisdictional prerequisites. First, MWI challenges the assessment of Indiana’s property tax. Second, it appeals initially from a final determination of the Indiana Board. Thus, this Court has subject matter jurisdiction over MWI’s appeal.
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 a particular case refers to the ‘right, authority, and power to hear and determine a specific case 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 Assessor’s argument as a challenge to its jurisdiction over this particular case. See footnote
When this Court has subject matter jurisdiction pursuant to Indiana Code § 33-3-5-2, an appeal is subject to certain provisions and requirements of the Administrative Orders and Procedures Act (AOPA), including Indiana Code § 4-21.5-5-13. See Ind. Code Ann. § 6-1.1-15-5(b) (West Supp. 2003). 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[.]” See footnote Ind. Code Ann. § 4-21.5-5-13(a) (West 2003) (footnote added). In a similar vein, 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). See footnote
The Assessor argues that MWI’s failure to follow either one of these provisions “robs” this Court of its jurisdiction over the case. (Resp’t Mem. In Supp. of [Its] Mot. to Dismiss at 2.) As support for its argument, the Assessor relies on Clendening v. Indiana Family and Social Services Administration, 715 N.E.2d 903 (Ind. Ct. App. 1999). (Resp’t Mem. In Supp. of [Its] Mot. to Dismiss at 2.) In Clendening, the Indiana Court of Appeals found that a trial court lacked jurisdiction to hear a case under Indiana Code § 4-21.5-5-13 due to petitioner’s failure to timely file the record. Clendening, 715 N.E.2d at 906. The Court, however, declines the Assessor’s invitation to follow Clendening in this case. See footnote
    “Whether a court has jurisdiction to hear a specific case depends upon the existence of particular facts contained within the case.” Carroll County, 733 N.E.2d at 50 (citations omitted). In this case, the Assessor had a copy of the Record before it was even formally filed. Accordingly, the Assessor was still able to submit a brief to the Court on the merits of the case, as well as present an oral argument, before the Record was filed. Because the Assessor was not prejudiced by MWI’s failure to act, dismissal would not serve any procedural end. In other words, the Court denies the Assessor’s motion to dismiss given the fact that this case has already progressed nearly to the point of completion, despite the procedural error, without any proof of harm to the litigants. See State v. Moore, 796 N.E.2d 764, 766-67 (Ind. Ct. App. 2003) (stating that a motion to suppress was not subject to dismissal, despite the fact that the notice of completion of the clerk’s record was not filed within the 30 day timeline, because litigants were not prejudiced), trans. denied.
    The whole point of procedural time limits is “to move these matters along.” See Indiana Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 947 (Ind. 1999). Because there has been no ascertainable delay caused by MWI’s error, this Court cannot say that dismissing MWI’s appeal is a proper balance of procedure against the administration of justice:
[a]lthough our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means.

Am. States Ins. Co. v. Indiana ex rel. Jennings, 283 N.E.2d 529, 531 (Ind. 1972). Had the facts in this case been any different, dismissal may have been warranted.


CONCLUSION

    For the above stated reasons, the Assessor’s motion to dismiss is DENIED. Simultaneous with the filing of this order, the Court also issues a separate opinion in which it decides the merits of MWI’s appeal.
SO ORDERED this 26th day of April, 2004.


________________________________


Thomas G. Fisher, Judge
Indiana Tax Court


Distribution:

Robert M. Frye
FOLEY & POOL, LLP
300 Marott Center
342 Massachusetts Avenue
Indianapolis, IN 46204

Steve Carter
Attorney General of Indiana
By: Ted J. Holaday
Deputy Attorney General
Indiana Government Center South
Fifth Floor
402 W. Washington St.
Indianapolis, IN 46204-2770




Footnote: The State Board of Tax Commissioners was abolished by the legislature as of December 31, 2001. 2001 Ind. Acts 198 § 119(b)(2). In its stead, the Indiana Board of Tax Review (Indiana Board) was created. Ind. Code Ann. § 6-1.5-1-3 (West Supp. 2003)(eff. 1-1-02); 2001 Ind. Acts 198 § 95. Consequently, when a final determination was issued on MWI’s appeal, the Indiana Board issued it.


Footnote: 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 Comm’rs, 757 N.E.2d 1072, 1075 n.5 (Ind. Tax Ct. 2001). The appropriate means for a party to challenge a court’s jurisdiction over a particular case is a motion under Indiana Trial Rule 12(B)(6). Carroll County Rural Elec. Membership Corp. v. Indiana Dep’t of State Revenue, 733 N.E.2d 44, 50 (Ind. Tax Ct. 2000).

Footnote:
In turn, “[f]ailure 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.” Ind. Code Ann. § 4-21.5-5-13(b) (West 2003).

Footnote: Given the provisions of Indiana Tax Rule 3(E), a petitioner may have more than thirty days after the filing of its petition to file the record.

Footnote:
It should be noted that Indiana courts of general jurisdiction review agency decisions exclusively under AOPA. This Court, however, reviews agency decisions in light of Indiana Code § 33-3-5, Indiana Code § 6-1.1-15, as well as its own rules of procedure (Indiana Tax Court Rules).