_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

JACK GRAY TRANSPORT, INC. et al.,                                         )
                                                                               )
    Petitioners,                                                               )
                                                                               )
    v.                                                                         )   Cause No. 49T10-0002-TA-14
                                                                               )
INDIANA DEPARTMENT OF                                                          )
STATE REVENUE,                                                                 )
                                                                               )
    Respondent.                                                                )    
 ______________________________________________________________________
    
                                                 

ORDER ON REHEARING


NOT FOR PUBLICATION
June 8, 2001

FISHER, J.

    Both parties have petitioned for rehearing. The petitioners, Jack Gray Transport, Inc. and thirty-eight other similarly situated parties See footnote (collectively Jack Gray), petition for rehearing from this Court’s determination that class certification should be denied. The respondent, Indiana Department of State Revenue (Department), petitions for rehearing from this Court’s determination that summary judgment should be denied for the Department and instead granted for Jack Gray on the basis that it should have been given an opportunity to present material evidence as to the subject matter jurisdiction of all petitioners.
    For the reasons stated below, the Court denies Jack Gray’s petition for rehearing and grants, in part, the Department’s petition for rehearing.
FACTS AND PROCEDURAL HISTORY

    The Court has previously reviewed the facts of this case, which are set forth in Jack Gray Transport, Inc. v. Indiana Dep’t of State Revenue, 744 N.E.2d 1071, 1073-74 (Ind. Tax Ct. 2001). Therefore, this Court will briefly review only the relevant factual and procedural history of this case in order to provide insight as to the current posture of this case.
    Jack Gray appealed the Department’s final determination wherein the Department declined to apply Indiana’s proportional use exemption to the motor fuel and surcharge taxes under Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) for the second, third, and fourth quarters of 1998 and the first two quarters of 1999. Jack Gray requested that this Court certify this case as a class action with Jack Gray as class representative. The Department filed a motion to dismiss, which the Court transformed into a motion for summary judgment. See Jack Gray Transport, 744 N.E.2d at 1073 n.3 (Ind. Tax Ct. 2001). In its motion, the Department argued that this Court’s opinions in Bulkmatic Transp. Co. v. Indiana Dep’t of State Revenue, 691 N.E.2d 1371 (Ind. Tax Ct. 1998) (Bulkmatic II) and Bulkmatic Transp. Co. v. Indiana Dep’t of State Revenue, 715 N.E.2d 26 (Ind. Tax Ct. 1999) (Bulkmatic III) held that the statutes under which Jack Gray sought its refund, Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d), were wholly unconstitutional and thereby authorized the Department to deny the exemptions at issue.
    This Court denied Jack Gray’s request for class certification. Jack Gray, 744 N.E.2d at 1077. After concluding that this Court’s Bulkmatic II and III opinions did not find Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) unconstitutional on the whole See footnote and did not authorize the Department to deny the parties’ exemptions and claims for refund, this Court denied the Department’s motion for summary judgment, entered summary judgment in favor of Jack Gray, and instructed the Department to grant the exemptions and issue refunds to the petitioners. Id. Both parties now petition for rehearing. Additional facts will be provided as necessary.
ANALYSIS, OPINION AND ORDER

    Having reviewed both parties’ petitions for rehearing and having held a hearing with regard thereto, the Court now finds the following as set forth below.
Jack Gray’s Petition for Rehearing

    Jack Gray argues that this Court should grant rehearing in its favor because this Court erred in finding that Jack Gray had not met the numerosity requirement for class certification. (Pet’r Pet. for Reh’g at 2.) See Ind. Trial Rule 23(A)(1). Jack Gray has not presented any evidence of numerosity that persuades this Court to vacate its original judgment denying class certification. Therefore, the Court denies Jack Gray’s petition for rehearing.

Department’s Petition for Rehearing

    The Department does not challenge this Court’s holding that it was required to apply the exemptions and issue refunds. Instead, the Department argues, among other things, that this Court should grant rehearing in its favor because this Court did not provide it with a reasonable opportunity to present evidence on the issue of any potential subject matter jurisdictional infirmities of the additional thirty-eight parties when the Court treated its motion to dismiss as a motion for summary judgment. (Resp’t Pet. for Reh’g at 3-6.) See footnote
     “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.” Carroll County Rural Elec. Membership Corp. v. Indiana Dep’t of State Revenue, 733 N.E.2d 44, 47 (Ind. Tax Ct. 2000). Whether a court has subject matter jurisdiction “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. (quoting Musgrave v. State Bd. of Tax Comm'rs, 658 N.E.2d 135, 138 (Ind. Tax Ct. 1995)).
    The general scope of authority conferred upon the Tax Court is governed by Indiana Code § 33-3-5-2(a)(1). This section provides that the Tax Court is a court of limited jurisdiction and has exclusive jurisdiction over any case that: (1) arises under the tax laws of Indiana and (2) is an initial appeal of a final determination made by the Department. Ind. Code § 33-3-5-2(a)(1) (West 2000); see also Carroll County Rural Elec. Membership Corp., 733 N.E.2d at 47. Indiana Code § 33-3-5-11(a) states that “[i]f a taxpayer fails to comply with any statutory requirement for the initiation of an original tax appeal, the tax court does not have jurisdiction to hear the appeal.” Ind. Code § 33-3-5-11 (West 2000). The Tax Court’s jurisdiction is also dependent upon when the appeal from the Department is filed in this Court. Hyatt Corp. v. Indiana Dep’t of State Revenue, 695 N.E.2d 1051, 1053 (Ind. Tax Ct. 1998), review denied. Indiana Code § 6-8.1-9-1(c) states that the Tax Court does not have jurisdiction over a refund case if:
the appeal is filed more than three (3) years after the date the claim for refund was filed with the department;

the appeal is filed more than ninety (90) days after the date the department mails the decision of denial to the person; or

the appeal is filed both before the decision is issued and before the one hundred eighty-first day after the date the person files the claim for refund with the department.

Ind. Code § 6-8.1-9-1(c) (West 2000).
    The Department does not challenge the jurisdictional prerequisite that this case arises under Indiana tax laws, but instead challenges the jurisdictional prerequisite that requires that a final determination has been issued. The Department contends that it should have been given the opportunity to verify whether there was a final determination issued by the Department for each of the petitioners that would confer jurisdiction upon this Court. Specifically, the Department claims that it needs to investigate whether all petitioners even filed a claim for refund with the Department for the quarters at issue or met other jurisdictional requirements. The failure to obtain this Court’s jurisdiction “may be raised by the parties or the court at any point during the action including appeal.” Coachman Vans v. State Bd. of Tax Comm’rs, 639 N.E.2d 1066, 1067 (Ind. Tax. Ct. 1994) (quotation omitted). This Court lacks jurisdiction over a taxpayer’s case seeking a refund from the Department if the taxpayer has not filed a claim for refund with the Department. GasAmerica Services, Inc. v. Indiana Dep’t of State Revenue, 552 N.E.2d 860, 862 (Ind. Tax Ct. 1990). Because the issue of jurisdiction is crucial to this Court’s entry of a final judgment as to all parties, the Court GRANTS, IN PART, the Department’s petition for rehearing by allowing it 120 days to investigate whether all joined petitioners have filed a claim for refund or met other jurisdictional requirements.

CONCLUSION

For the foregoing reasons, the Court DENIES Jack Gray’s petition for rehearing and GRANTS IN PART the Department’s petition for rehearing. The judgment finding that the Department acted contrary to law when it failed to grant the exemptions and issue refunds to petitioners for the quarters at issue is hereby affirmed to the extent that each petitioner has met jurisdictional prerequisites. Final judgment as to all parties, however, is hereby suspended so that the Department can conduct further investigation to verify that all petitioners properly filed claims for refund and that this Court has jurisdiction over all thirty-eight petitioners. The Department is ordered that it has 120 days to investigate the propriety of the thirty-eight petitioners’ claims and to present any claims that may need to be dismissed due to a lack of subject matter jurisdiction. See footnote
Thereafter, this Court will enter final judgment as to all claims over which it has subject matter jurisdiction.


         _____________________________
            Thomas G. Fisher, Judge
            Indiana Tax Court


Dated: ____________________


Distribution:

Robert W. Loser, II    
Patrick M. O’Brien    
Michael R. Franceschini        
William S. Ayres
Ruth E. Myer
AYRES CARR & SULLIVAN, P.C.
251 East Ohio Street, Suite 500
Indianapolis, Indiana 46204

Steve Carter
Attorney General of Indiana
By: David A. Arthur
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770


Footnote:      Upon motion by Jack Gray, this Court joined the thirty-eight other petitioners in this case on May 5, 2000.

Footnote: This Court found that only the limitation, “in Indiana,” contained in Indiana Code §§ 6-6-4.1-4(d) and 6-6-4.1-4.5(d) was unconstitutional and that the effect of the Bulkmatic opinions was to sever this infirm part of the statutes and leave the rest of the statutes intact. Jack Gray Transport, Inc. v. Indiana Dep’t of State Revenue, 744 N.E.2d 1071, 1077 (Ind. Tax Ct. 2001).

Footnote: The Department also argues that this Court should vacate its original judgment, deny the Department’s motion to dismiss, direct the Department to answer Jack Gray’s petition, and set a management schedule for discovery and dispositive motions. (Resp’t Pet. for Reh’g at 3, 9.) This Court denies this part of the Department’s petition for rehearing.

Footnote: To the extent that the Department may not be able to locate the necessary documents in its own files that show the all petitioners met the jurisdictional requirements, the Department should first request the documents from the individual petitioner before filing a motion to dismiss that petitioner.