ATTORNEYS FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
B. KEITH SHAKE    STEVE CARTER
MICHAEL R. HARPRING    ATTORNEY GENERAL OF INDIANA
HENDERSON DAILY WITHROW & DEVOE     Indianapolis, IN
Indianapolis, IN    
    
    JOEL SCHIFF
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
______________________________________________________________________
     IN THE INDIANA TAX COURT

THE DALTON FOUNDRIES, INC.,        )
                                    )
    Petitioner,                     )
    v.                              )

      
            ) Cause No. 49T10-0001-TA-5
DEPARTMENT OF LOCAL         )
GOVERNMENT FINANCE, See footnote         )
                )
    Respondent.            )    
______________________________________________________________________
ORDER ON PARTIES’ CROSS-MOTIONS
FOR SUMMARY JUDGMENT

NOT FOR PUBLICATION
April 28, 2004

FISHER, J.
    The Dalton Foundries, Inc. (Dalton) appeals the State Board of Tax Commissioners’ (State Board) final determination denying its claim for a resource recovery system (RRS) deduction See footnote for the March 1, 1993 assessment. The matter is currently before the Court on the parties’ cross-motions for summary judgment. The issue for the Court to decide is whether the State Board erred in denying Dalton’s application for the RRS deduction.
FACTS AND PROCEDURAL HISTORY

    The material facts as they relate to this case are undisputed. Dalton is an Indiana corporation with principal offices in Warsaw, Indiana. On June 18, 1993, Dalton filed a Claim for Deduction of Assessed Valuation Applicable to Resource Recovery Systems (Form RRS-1) covering real and personal property with the Kosciusko County Auditor (Auditor). The Auditor denied the application on June 22, 1993, because it was not timely filed. On October 22, 1993, Dalton filed a second Form RRS-1; the Auditor again denied it because Dalton missed the filing deadline.
Dalton appealed to the Kosciusko County Board of Review (BOR) by filing two Petitions for Correction of Error (Forms 133) – one for the real property in its RRS, one for the personal property in its RRS. The BOR denied Dalton’s claims. Dalton then appealed to the State Board. The State Board upheld the Auditor’s denial.
    Dalton subsequently filed an original tax appeal. On July 28, 1995, this Court reversed and remanded the State Board’s final determination, finding that the Auditor lacked the authority to deny Dalton’s claim for deduction. See Dalton Foundries, Inc. v. State Bd. of Tax Comm’rs, 653 N.E.2d 548, 553 (Ind. Tax Ct. 1995) (Dalton I). The Court instructed the State Board to order the Auditor to forward Dalton’s Form RRS-1 to the Wayne Township Assessor (Assessor) for review. See id. at 555.
    Pursuant to the remand order, the Assessor received Dalton’s Form RRS-1. On October 10, 1995, the Assessor denied Dalton’s application because it was not timely filed. Dalton appealed to the BOR; the BOR upheld the Assessor’s denial. Dalton again appealed the BOR’s denial to the State Board. On November 30, 1999, the State Board issued a final determination upholding the Assessor’s denial.
    On January 13, 2000, Dalton filed another original tax appeal. Dalton subsequently filed a motion for summary judgment on September 28, 2000. The State Board filed a response brief on January 9, 2001. See footnote The Court conducted a hearing on April 9, 2001. Additional facts will be supplied as necessary.


ANALYSIS AND OPINION
Standard of Review


This Court gives great deference to the final determinations of the State Board when it acts within the scope of its authority. Hamstra Builders, Inc. v. Dep’t of Local Gov’t Fin., 783 N.E.2d 387, 390 (Ind. Tax Ct. 2003). Thus, this Court will reverse a final determination of the State Board only when its findings are unsupported by substantial evidence, arbitrary, capricious, constitute an abuse of discretion, or exceed statutory authority. Id.
In addition, a motion for summary judgment will be granted only when there is no genuine issue of material fact, and a party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). Cross motions for summary judgment do not alter this standard. See Mantonovich v. State Bd. of Tax Comm’rs, 705 N.E.2d 1093, 1096 (Ind. Tax Ct. 1999), review denied.
Discussion

    Indiana Code § 6-1.1-12-35 provides that a Form RRS-1 covering real property must be filed between March 1st and May 10th of the assessment year; a Form RRS-1 covering personal property must be filed between March 1st and May 15th of the assessment year. Ind. Code Ann. § 6-1.1-12-35(a), (d) (West 1993) (repealed 2001). In Dalton I, this Court determined that “while nothing in the law prevents a township assessor from considering an untimely filed Form RRS-1, nothing in the law requires a township assessor to consider an untimely filed Form RRS-1, either.” Dalton I, 653 N.E.2d at 554 (emphasis added). Thus, this Court refused to consider the statutory filing deadline language “meaningless” and held “that a township assessor has discretion to deny an untimely filed Form RRS-1.” Id. at 554-55.
Dalton does not dispute that its application was untimely filed; however, it claims that because “[t]here exist[s] no previously stated, ascertainable standards for the exercise of discretion to deny the [RRS] deduction . . . based on untimely filing of the paperwork[,] . . . that discretion cannot be exercised against the taxpayer at this juncture.” (Pet’r Mot. for and Mem. in Supp. of Summ. J. at 8 (internal quotation omitted).) Dalton is incorrect. The ascertainable standard for the exercise of the Assessor’s discretion is the statutory filing deadline contained in Indiana Code § 6-1.1-12-35.
The Assessor specifically denied Dalton’s Form RRS-1 because “the statement MUST be filed between March 1 and May 15[.]” (See Pet’r Mot. for and Mem. in Supp. of Summ. J., Ex. B at 1 (emphasis in original).) The State Board upheld the Assessor’s determination, finding that “Dalton did not file the claim for resource recovery within the statutory deadlines required by IC 6-1.1-12-35(a) and (d).” (See Pet’r Mot. for and Mem. in Supp. of Summ. J., Ex. C at 11.) Thus, it is clear to the Court that Dalton’s RRS application was denied because it was untimely filed. Having stated in Dalton I that the Assessor had discretion to deny an untimely filed Form RRS-1, and in light of the filing deadlines prescribed by statute, the Court cannot say that the State Board abused its discretion in affirming the Assessor’s denial of Dalton’s RRS deduction application.

CONCLUSION

For the aforementioned reasons, the Court denies Dalton’s motion for summary judgment and GRANTS summary judgment in favor of the Department of Local Government Finance.
SO ORDERED this 28th day of April, 2004.

_____________________________


         Thomas G. Fisher, Judge
     Indiana Tax Court



Distribution :

B. Keith Shake
Michael R. Harpring
Henderson, Daily, Withrow & DeVoe
2600 One Indiana Square
Indianapolis, IN 46204

Steve Carter
Attorney General of Indiana
By: Joel Schiff
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770

Indiana Board of Tax Review
100 N. Senate Ave.
Room N-1058 (A)
Indianapolis, IN 46204



Footnote: The State Board of Tax Commissioners (State Board) was originally the Respondent in this appeal. However, the legislature abolished the State Board as of December 31, 2001. 2001 Ind. Acts 198 § 119(b)(2). Effective January 1, 2002, the legislature created the Department of Local Government Finance (DLGF), see Indiana Code Annotated § 6-1.1-30-1.1 (West Supp. 2003)(eff. 1-1-02); 2001 Ind. Acts 198 § 66, and the Indiana Board of Tax Review (Indiana Board). Ind. Code Ann. § 6-1.5-1-3 (West Supp. 2003)(eff. 1-1-02); 2001 Ind. Acts 198 § 95. Pursuant to Indiana Code § 6-1.5-5-8, the DLGF is substituted for the State Board in appeals from final determinations of the State Board that were issued before January 1, 2002. Ind. Code Ann. § 6-1.5-5-8 (West Supp. 2003)(eff. 1-1-02); 2001 Ind. Acts 198 § 95. Nevertheless, the law in effect prior to January 1, 2002 applies to those appeals. A.I.C. § 6-1.5-5-8. See also 2001 Ind. Acts 198 § 117. Although the DLGF has been substituted as the Respondent, this Court will still reference the State Board throughout this opinion.

Footnote: “Resource recovery system” (RRS) is defined as “tangible property directly used to dispose of solid waste or hazardous waste by converting it into energy or other useful products.” Ind. Code Ann. § 6-1.1-12-28.5(a) (West 1993) (amended 2003). “[T]he owner of a [RRS] . . . is entitled to have deducted annually from the assessed value of the system an amount equal to ninety-five percent (95%) of that assessed value.” Id.

Footnote: Although not captioned as a cross motion for summary judgment, the State Board’s response brief requests that summary judgment be entered in its favor. Pursuant to Indiana Trial Rule 56(B), summary judgment may be granted to the non-moving party. Therefore, the Court will treat the State Board’s request as a cross motion for summary judgment. See Hunt Corp. v. Indiana Dep’t of State Revenue, 709 N.E.2d 766, 767 n.5 (Ind. Tax Ct. 1999).