APPEARING PRO SE: ATTORNEYS FOR RESPONDENT:
ANDREW BAKOS STEVE CARTER
Hammond, IN ATTORNEY GENERAL OF INDIANA
AMBER MERLAU ST.AMOUR
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
ANDREW BAKOS, )
v. ) Cause No. 49T10-0412-TA-60
DEPARTMENT OF LOCAL )
See footnote )
ORDER ON RESPONDENTS MOTION TO DISMISS
NOT FOR PUBLICATION
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 Boards 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 Boards motion.
FACTS AND PROCEDURAL HISTORY
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 homes 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 Boards
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 Dept 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 Respt 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 Commrs, 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 Indianas 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 Boards motion really challenges
the Courts jurisdiction over the particular case. (See Respt 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 Boards 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 Boards 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
Hrg 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); Commr, Indiana Dept 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.
As the Court has subject matter jurisdiction and jurisdiction over the particular case
in this matter, the Indiana Boards 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
6626 Maryland Avenue
Hammond, IN 46323
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
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  were 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.
(Hrg Tr. at 5.)
Challenges to [the C]ourts jurisdiction over the particular case must be raised at
the first opportunity to avoid waiver.
Harp v. Indiana Dept of Highways,
585 N.E.2d 652, 659 (Ind. Ct. App. 1992). In this case, any
grounds for dismissal based on the Courts jurisdiction over the particular case should
have been raised in the Indiana Boards 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 Boards 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).