ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
B. JOSEPH DAVIS STEVE CARTER
ATTORNEY AT LAW ATTORNEY GENERAL OF INDIANA
Muncie, IN Indianapolis, IN
RICHARD R. MURPHY JOHN D. SNETHEN
ATTORNEY AT LAW DEPUTY ATTORNEY GENERAL
Anderson, IN Indianapolis, IN
INDIANA TAX COURT
STEVEN R. KREPS d/b/a/ BEST HEATING )
AND COOLING, )
) Cause No. 49T10-0312-TA-61
INDIANA DEPARTMENT OF STATE )
ORDER ON PETITIONERS MOTION TO SET ASIDE DISMISSAL
NOT FOR PUBLICATION
July 22, 2004
Steven R. Kreps d/b/a/ Best Heating and Cooling (Kreps) challenges this Courts order
of February 25, 2004, dismissing his case. The issue is whether Kreps
has established that he is entitled to relief under Indiana Trial Rule 60(B).
FACTS AND PROCEDURAL HISTORY
Kreps is engaged in the business of installing and servicing residential and commercial
heating and cooling systems. After conducting an audit, the Department of State
Revenue (Department) assessed Kreps for unpaid individual income tax and sales and use
tax liabilities for the 1998, 1999, and 2000 tax years. Kreps protested
the assessments; on December 12, 2002, the Department issued two letters of findings
(LOFs) denying Kreps protest. On December 23, 2003, Kreps initiated an original
tax appeal. The Department filed a motion to dismiss on February 6,
2004. The Court granted the Departments motion on February 25, 2004.
Kreps has now filed a motion to set aside the dismissal pursuant to
Indiana Trial Rule 60(B). The Court conducted a hearing on Kreps motion
on June 30, 2004. Additional facts will be supplied as necessary
ANALYSIS AND OPINION
Trial Rule 60(B) provides, in pertinent part, that [o]n motion and upon such
terms as are just the court may relieve a party or his legal
representative from an entry of default, final order, or final judgment . .
. for the following reasons: (1) mistake, surprise, or excusable neglect[.]
Ind. Trial Rule 60(B)(1). To prevail on such a motion, a party
is not only required to show mistake, surprise, or excusable neglect, but also
must show that he has a good and meritorious defense to the cause
of action. See T.R. 60(B); see also Kmart Corp. v. Englebright, 719
N.E.2d 1249, 1258 (Ind. Ct. App. 1999) (citation omitted), trans. denied. Because
the circumstances of each case will be different, there are no fixed rules
or standards for determining what constitutes mistake, surprise, or excusable neglect. Nwannunu
v. Weichman & Assocs., P.C., 770 N.E.2d 871, 876 (Ind. Ct. App. 2002)
(citation omitted). Therefore, in making its determination in ruling on the motion,
the Court must balance the need for an efficient judicial system with the
judicial preference for deciding disputes on the merits. Id.
When the Department filed its motion to dismiss in February 2004, it asserted
that this Court should dismiss [Kreps] appeal . . . for lack of
jurisdiction. (Respt Mot. to Dismiss at 4.) Specifically, the Department alleged
that Kreps filed his appeal more than 180 days after the Department issued
its letters of finding. Therefore, th[e] Court does not have jurisdiction to
hear [Kreps] appeal.
See footnote (Respt Mot. to Dismiss at 4. (footnote added).
Kreps did not file a response to the Departments motion. The Court,
after examining the filing deadlines and filings, granted the Departments motion to dismiss.
Kreps now asserts in his motion to set aside this Courts dismissal that
[t]he petitioner filed a Verified Petition on 12/23/03, which directly counters respondents points
in its Motion [for dismissal.] . . . Had [the petition] been considered,
a different result wouldve been reached. (Petr Mot. to Set Aside Dismissal
at 1.) Thus, Kreps requests to have the merits of the Motion
[to dismiss] looked at  compared to the facts that are alleged in
the  [p]etition. (Oral Argument Tr. at 7.)
First, the Court reminds Kreps that while he was not required to respond
to the Departments motion to dismiss
, it was not this Courts responsibility to
sort through his petition and find evidence countering the allegations subsequently raised by
the Department. Furthermore, the Court emphasizes that when Kreps filed his Trial
Rule 60(B) motion, he was required to include a memorandum of law or
statement of points and authorities, explaining how relevant authorities support the contentions of
the moving party. Ind. Tax Court Rule 12(B) (emphases added). See
also Ind. Trial Rule 9(B) (stating that [i]n all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be specifically averred). Kreps
request that the Court look at the verified petition and a mere citation
to Trial Rule 60(B)(1) and (5) do little to explain and support his
contention that this Courts order should be set aside.
Nevertheless, the Court has re-examined Kreps verified petition and nowhere therein does Kreps
explain how this Court continues to have jurisdiction despite his untimely filed appeal
(the basis of the Departments motion to dismiss). The Court concludes that
Kreps is apparently alleging that he did not receive the Departments LOFs when
they were issued on December 12, 2002. (See Petr V. Pet. at
2 (Kreps assertion that [he] had to initiate contact with [the] Supervisor of
Appeals to obtain the LO[Fs]).) However, Kreps requested a rehearing with the
Department on or about July 23, 2003 therefore, the Court concludes that
he must have received the LOFs prior to that date. (See Petr
V. Pet. at Ex. I.) Furthermore, while the evidence does indicate that
the Supervisor of Appeals reprinted a copy of the LOFs and mailed them
to Kreps on August 7, 2003, the Department had already processed and denied
Kreps July request for rehearing by that date. (See Petr V. Pet.
at Ex. L & Ex. M.) Thus, the evidence does not support
Kreps apparent contention that he did not receive the LOFs from the Department
until August 7, 2003.
In short, Kreps petition does not explain why or how his petition should
be considered timely filed. Taxpayers are presumed to know the law
by statute, Kreps was required to file his petition to this Court no
later than June 12, 2003 (180 days after the 12/12/02 date the LOFs
were issued by the Department). See A.I.C. § 6-8.1-5-1(g). See also
Evansville Concrete Supply Co., Inc. v. Indiana Dept of State Revenue, 571 N.E.2d
1350, 1354 (Ind. Tax Ct. 1991) (citation omitted) (stating all persons are charged
with knowing their rights and remedies prescribed by statute). Kreps relied on
the assertions contained in his petition to oppose the Departments motion to dismiss;
that reliance resulted in dismissal because nothing in the petition demonstrated that Kreps
had timely filed his petition. Kreps cannot now come to the Court
expecting a different result.
Therefore, the Court DENIES Kreps motion to set aside the dismissal order of
February 25, 2004.
SO ORDERED this 22nd day of July, 2004.
Thomas G. Fisher, Judge
Indiana Tax Court
B. Joseph Davis
Attorney at Law
400 E. Jackson St.
Muncie, IN 47305
Richard R. Murphy
Attorney at Law
928 Meridian Plaza
Anderson, Indiana 46016
Attorney General of Indiana
By: John D. Snethen
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770
Indiana Code § 6-8.1-5-1(g) provides that the tax court does not have
jurisdiction to hear an appeal that is filed more than one hundred eighty
(180) days after the date on which the letter of finding is issued
by the department.
Ind. Code Ann. § 6-8.1-5-1(g) (West 2003).
Tax Court Rule 12 provides that an opposing party may file a
written memorandum of law or a statement of authority in response to the
matters raised in any motion not later than 10 days from the date
of service of the motion. Ind. Tax Court Rule 12(C).
Furthermore, the Court is confused as to why Kreps cited Trial Rule
60(B)(5), as that provision applies if the motion asserts, and proves, that the
moving party was an infant or incompetent person at the time of the
See Ind. Trial Rule 60(B)(5).