Indianapolis, IN

    IN THE INDIANA TAX COURT _____________________________________________________________________

ANDREW BAKOS,                                                             )
    Petitioner,                                                                )
    v.                                                                         )       Cause No. 49T10-0412-TA-60
DEPARTMENT OF LOCAL                                                            )
                                      See footnote                       )
    Respondent.                                                                )    


May 13, 2005

Andrew Bakos (Bakos) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) assessing his real property for the 2002 tax year. The matter is currently before the Court on the Indiana Board’s motion to dismiss. In its motion, the Indiana Board claims this Court lacks subject matter jurisdiction to hear Bakos’ appeal. For the reasons stated below, the Court DENIES the Indiana Board’s motion.

Bakos owns a single-family residence in Lake County, Indiana. For the March 1, 2002 assessment date, the Department of Local Government Finance (DLGF) assessed Bakos’ land at $20,200 and his improvement at $70,900. Bakos timely filed a Form 139L, Petition for Review of DLGF Action for Lake County Residents, with the Indiana Board asserting that the DLGF erred in calculating the square footage of his home, and that the home’s assessed value was higher than comparable homes in the neighborhood. The Indiana Board issued a final determination on November 15, 2004. While the In`diana Board corrected the square footage of the improvement, it did not change the overall assessed value of the property.
On December 24, 2004, Bakos initiated an original tax appeal. The Indiana Board filed a motion to dismiss for lack of subject matter jurisdiction on February 3, 2005. The Court conducted a hearing on the Indiana Board’s motion on April 8, 2005. Additional facts will be supplied as necessary.

The sole issue before the Court is whether it has jurisdiction over Bakos’ 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 Indiana Board argues that the Court lacks subject matter jurisdiction because Bakos’ petition failed to identify the DLGF as the appropriate respondent. (See Resp’t Am. Mot. to Dismiss at ¶¶ 2, 5-7 (citing Miller Village Properties Co., LLP v. Indiana Bd. of Tax Review, 779 N.E.2d 986, 989 (Ind. Tax Ct. 2003) and Ind. Code Ann. § 4-21.5-5-7(b)(4).) The Court disagrees.
“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) (citation omitted). 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 § 33-26-3-1. 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” of the Indiana Board. Ind. Code Ann. § 33-26-3-1 (West 2005). Bakos’ appeal meets both jurisdictional prerequisites: it challenges the assessment of Indiana’s property tax and it requests review of a final determination of the Indiana Board. (See Pet. at 1.) Accordingly, the Court has subject matter jurisdiction over Bakos’ appeal.
Having said that, the Court notes that the Indiana Board’s motion really challenges the Court’s jurisdiction over the particular case. (See Resp’t Mot. to Dismiss at 2, ¶ 6.) “Jurisdiction over the particular case refers to the ‘right, authority, and power to hear and determine a specific case within the class of cases over which a court has subject matter jurisdiction.’” Carroll County, 733 N.E.2d at 50 (quoting Adler v. Adler, 713 N.E.2d 348, 352 (Ind. Ct. App. 1999)). When this Court has subject matter jurisdiction pursuant to Indiana Code § 33-26-3-1, an appeal is subject to the requirements of the Administrative Orders and Procedures Act (AOPA), as well as the Indiana Tax Court Rules. See Ind. Code Ann. § 6-1.1-15-5(b) (West Supp. 2004-2005); see also Ind. Code Ann. § 4-21.5-5 (West 2005); Ind. Tax Court Rule 1.
Pursuant to Indiana Code § 4-21.5-5-7, a petition for judicial review must identify the persons who were parties to any proceeding that led to the Indiana Board action. See Ind. Code Ann. § 4-21.5-5-7(b)(4) (West 2005). Similarly, Indiana Tax Court Rule 4(B)(2)(c) provides that:
[i]n original tax appeals of final determinations of the [Indiana Board] in which the [DLGF] was a party to the administrative proceedings, the [DLGF] shall be a named respondent, and, if a local government official who made an original determination under review was a party to the administrative proceeding before the [Indiana Board], such local government official shall also be a named respondent.

Ind. Tax Court Rule 4(B)(2)(c). In this case, the DLGF was the respondent in the proceeding that led to the Indiana Board’s final determination. (See Pet. at 4 (attached Final Determination, Findings and Conclusions at 1).) Thus, the DLGF should be a named respondent to the original tax appeal.
Bakos’ petition does not have a caption listing a respondent; however, it states, “[c]opies of the [f]inal [d]etermination and identification [of] respondent except for North Township Assessor John Matonovich are enclosed.” (See Pet. at 1 (emphasis added).) In turn, Bakos attached a copy of the Indiana Board’s final determination, which lists the DLGF as a respondent. (See Pet. at 4.) The Indiana Board argues that Bakos cannot name the DLGF by reference to another document; rather, it claims that pursuant to Indiana Code § 4-21.5-5-7, Bakos was required to identify the DLGF within the contents of his petition. (See Hr’g Tr. at 10-11.) The Court disagrees.
Bakos’ handwritten petition sufficiently identified the DLGF as a respondent to the previous proceeding and the tax appeal by incorporating the attached final determination. See Bd. of Zoning Appeals of Porter County, et. al v. Lake County Trust Co., 783 N.E.2d 382, 385 (Ind. Ct. App. 2003) (attached signature page met verification requirement, where the verification statement clearly referred the judge to the attachment), review denied. Indeed, his petition clearly referred the Court to the attached order, which identifies the DLGF as a respondent. (See Pet. at 1.) While the form of the petition is atypical, it satisfies the substantive statutory requirement. See, e.g., Beach v. Beach, 642 N.E.2d 269, 275 (Ind. Ct. App. 1994) (stating that where all of the required information was contained in or attached to the petition, the court declined to elevate form over substance); Comm’r, Indiana Dep’t of Envtl. Mgmt. v. Bethlehem Steel Corp., 703 N.E.2d 680, 682 (Ind. Ct. App. 1998) (holding that an incomplete petition failed to invoke jurisdiction because an agency order, which contained information satisfying several jurisdictional requirements, was referenced in the petition but not attached to it). Therefore the Court is not prevented from exercising jurisdiction over Bakos’ appeal for a failure to name the DLGF as a respondent. See footnote


    As the Court has subject matter jurisdiction and jurisdiction over the particular case in this matter, the Indiana Board’s motion to dismiss is DENIED. The Court will issue a briefing schedule under a separate order.
SO ORDERED this 13th day of May, 2005.

                                Thomas G. Fisher, Judge
                                Indiana Tax Court

Andrew Bakos
6626 Maryland Avenue
Hammond, IN 46323

Steve Carter
Attorney General of Indiana
By: Amber Merlau St.Amour
Deputy Attorney General
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, IN 46204

Footnote: The original petition, filed by Mr. Bakos, did not contain a caption. Nevertheless, the Court provides the appropriate caption in order to remain consistent with its decision today.

Footnote: During the hearing on the motion, counsel for the Indiana Board claimed that the petition lacked several other statutory requirements which could deprive the Court of jurisdiction over the case. In particular, counsel stated:
[t]he petition does not specify facts demonstrating standing, it does not specify the extent of relief sought, it does not contain a certificate of service, so that [] we’re unable to verify if service was made on the parties that are required under the statute. The petition was not verified as it must be both under statute and under the . . . Tax Court rules. And the [petition] did not contain an identification of the agency action. It only had a copy of it attached, but the statute says that you are to identify it in the petition and . . . together with a copy of a summary or brief.

(Hr’g Tr. at 5.)
“Challenges to [the C]ourt’s jurisdiction over the particular case must be raised at the first opportunity to avoid waiver.” Harp v. Indiana Dep’t of Highways, 585 N.E.2d 652, 659 (Ind. Ct. App. 1992). In this case, any grounds for dismissal based on the Court’s jurisdiction over the particular case should have been raised in the Indiana Board’s motion to dismiss. See Foor v. Town of Hebron, 742 N.E.2d 545, 550 (Ind. Ct. App. 2001). Furthermore, because the grounds mentioned during the hearing on the motion were not raised in the Indiana Board’s written motion, the objections have been waived. See Ind. Trial Rule 7(B) (stating “[u]nless made during a hearing or trial, or otherwise ordered by the court, an application to the court for an order shall be made by written motion. The motion shall state the grounds therefor and the relief or order sought.”). See also William F. Harvey, 1 Indiana Practice, Rules of Procedure Annotated § 7.5 at 481 (stating that “oral motions may be made during a hearing or trial . . . [but] a hearing on a written motion previously made is not a ‘hearing’ within this provision of the Rule”).