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
INDIANA TAX COURT
SHELBY STREET REALTY CORP., )
n/k/a MERCHANDISE WAREHOUSE, INC., )
v. ) Cause No. 49T10-0205-TA-46
PERRY TOWNSHIP ASSESSOR, )
ORDER ON RESPONDENTS MOTION TO DISMISS
NOT FOR PUBLICATION
April 26, 2004
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 Assessors (Assessor) motion to dismiss. For the reasons
stated below, the Court DENIES the Assessors 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 PTABOAs
decision. After the State Board conducted an administrative hearing, the Indiana Board
issued a final determination on March 21, 2002, in which it affirmed the
PTABOAs decision. On May 6, 2002, MWI appealed the Indiana Boards 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 MWIs 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 Assessors 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
MWIs appeal. Every action has three jurisdictional elements: 1) jurisdiction of
the subject matter; 2) jurisdiction of the person; and 3) jurisdiction of the
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 MWIs 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 § 33-3-5-2. 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). MWIs
appeal meets both jurisdictional prerequisites. First, MWI challenges the assessment of Indianas
property tax. Second, it appeals initially from a final determination of the
Indiana Board. Thus, this Court has subject matter jurisdiction over MWIs 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 Assessors argument as a challenge to its jurisdiction over this particular case.
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[.]
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).
The Assessor argues that MWIs failure to follow either one of these provisions
robs this Court of its jurisdiction over the case. (Respt 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). (Respt 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 petitioners failure to timely file the record.
Clendening, 715 N.E.2d at 906. The Court, however, declines the Assessors
invitation to follow Clendening in this case.
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 MWIs failure to
act, dismissal would not serve any procedural end. In other words, the
Court denies the Assessors 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 clerks 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 Commn v. Indianapolis Newspapers, Inc., 716 N.E.2d 943,
947 (Ind. 1999). Because there has been no ascertainable delay caused by
MWIs error, this Court cannot say that dismissing MWIs 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
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.
For the above stated reasons, the Assessors 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 MWIs appeal.
SO ORDERED this 26th day of April, 2004.
Thomas G. Fisher,
Indiana Tax Court
Robert M. Frye
FOLEY & POOL, LLP
300 Marott Center
342 Massachusetts Avenue
Indianapolis, IN 46204
Attorney General of Indiana
By: Ted J. Holaday
Deputy Attorney General
Indiana Government Center South
402 W. Washington St.
Indianapolis, IN 46204-2770
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 MWIs appeal,
the Indiana Board issued it.
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).
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).
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
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).