INDIANA TAX COURT
Case No. 49T10-9603-TA-00025
STATE BOARD OF TAX )
ORDER AND JUDGMENT ENTRY
July 26, 2000
NOT FOR PUBLICATION
The petitioner, GECOM Corporation (GECOM), appeals the final determination of the State Board
of Tax Commissioners (State Board) finding that GECOM was not entitled to an
Economic Revitalization Area (ERA)
deduction for the 1995 tax year. In this
original tax appeal, GECOM raises several issues in its motion for summary judgment.
However, the Court finds dispositive the following: whether GECOM timely filed
its Form 322 ERA/PP Application for Deduction from Assessed Valuation New Manufacturing Equipment
in Economic Revitalization Area (ERA Application) on or prior to the extended due
date of June 14, 1995.
(Petr Br. at 3.)
Facts and Procedural History
GECOM contends that it delivered the ERA Application to the Decatur
County Auditor and to the Greensburg Mayors Office on or about June 12,
1995, before the filing deadline.
The State Board asserts that it received
GECOMs ERA Application file-marked June 15, 1995, which was signed and dated by
GECOMs representative on the same day. On December 12, 1995, the State
Board mailed a Notice of Recommendation (Notice) to GECOM recommending no ERA deduction
due to the Application being filed one day past the filing deadline.
Having received no response to its Notice, the State Board issued its final
determination on February 7, 1996, stating that the application was filed after the
required deadline and thus denied the ERA deduction without considering it on the
merits. (Petr Ex. C and Harris Aff. at ¶ 9.)
Consequently, GECOM filed its original tax appeal in this Court on March 22,
1996. Deeming the State Boards denial of the ERA deduction to be
erroneous, GECOM, by counsel, filed a motion for summary judgment on December 27,
1996. Originally, the Court extended indefinitely the time for the State Board
to respond to the motion, pending resolution of the matters in dispute.
Since the parties were unable to reach an agreement, GECOM requested the Court
to set a hearing date for its previous motion. The State Board,
by counsel, filed a response brief on September 4, 1997. The Court
heard oral arguments regarding GECOMs motion on November 20, 1997. GECOM requests
that the Court reverse the State Boards final determination and declare its ERA
Application timely filed. (Petr Br. at 12-13.) Additional facts will be
supplied as necessary.
S tandard of Review
This Court reverses State Board final determinations only when those determinations are unsupported
by substantial evidence, are arbitrary or capricious, constitute an abuse of discretion, or
exceed statutory authority. See Wetzel Enters. Inc. v. State Bd. of Tax
Commrs, 694 N.E.2d 1259, 1261 (Ind. Tax Ct. 1998). Summary judgment is
proper only when no genuine issues of material fact exist and the moving
party is entitled to judgment as a matter of law. See Ind.
T.R. 56(C); See also Dana Corp. v. State Bd. of Tax Commrs, 694
N.E.2d 1244, 1246 (Ind. Tax Ct. 1998). The Court must liberally construe
all evidence in favor of the non-moving party and resolve any doubt against
the moving party. See Knauf Fiber Glass, GmbH v. State Bd. of
Tax Commrs, 629 N.E.2d 959, 961 (Ind. Tax Ct. 1994). In making
this determination, the Court may not consider facts that were not presented to
the State Board. See American Juice Co. v. State Bd. of Tax
Commrs, 527 N.E.2d 1169, 1170 (Ind. Tax Ct. 1988). Rather, the Court
must look at the facts as they were found by the State Board.
See id. Furthermore, the Court will not reweigh the evidence presented
to the State Board at the administrative level. See State Bd. of
Tax Commrs v. Gatling Gun Club, 420 N.E.2d 1324, 1328 (Ind. Ct. App.
GECOM claims it timely filed its ERA Application on or before the extended
due date of June 14, 1995. In support of its position, GECOM
presents evidence that shows that its ERA Application was hand delivered to the
Washington Township Assessors Office before June 15th. (Petr. Ex. 4.) However,
the only facts before the State Board when making its final determination consisted
of an ERA Application signed, dated, and file-stamped June 15, 1995. There
is no dispute as to these material facts. Thus, from the State
Boards perspective, the application was filed one day past the filing deadline.
The Court cannot declare the State Boards determination improper based on this information.
Therefore, the Court finds that GECOMs ERA Application was not timely filed
and denies GECOMs motion for summary judgment. However, this determination does not
end the matter.
As a matter of law, the State Board is not required to grant
the requested deduction in a late-filed ERA Application. It may however, consider
it. In State Board of Tax Commissioners v. New Energy Company
of Indiana, 585 N.E.2d 38 (Ind. Ct. App. 1992), trans. denied, the State
Board denied New Energys ERA deduction application based on New Energys untimely filing.
New Energy, the Court of Appeals ruled that, despite the language
of the statute, the State Board had the authority to consider a late-filed
application and remanded the case to the State Board for further consideration.
See id. at 39. Cf. Graybar Elec. Co. v. State Bd. of
Tax Commrs, 723 N.E.2d 491, 496 (Ind. Tax Ct. 2000) (applying the same
reasoning in determining that the State Board had jurisdiction to consider taxpayers EZ
Credit application despite untimely filing of claim.)
Ind. Admin. Code tit. 50, r. 10-4-2 (Supp. 2000) deals with the issue
of reviewing late-filed applications. It provides in relevant part as follows:
The Indiana Court of Appeals has ruled that the state board has the
discretion to consider a late filed application for the economic revitalization area deduction
for new manufacturing equipment. . . . .
In exercising its discretion as described in subsection (a), the state board shall
consider the totality of the circumstances in determining whether or not to approve
a late-filed deduction application. Such consideration may be based on one (1)
or more of the following factors:
* * *
(5) Whether there is substantial evidence that local officials support the approval of
the late-filed application, even if such approval would result in a loss of
(6) Whether the late-filing was not due to the taxpayers negligence.
(7) Any other factor that the state board considers relevant.
(citation omitted) (emphasis added). The Court notes that Ind. Admin. Code tit.
50, r. 10-4-2 was not in effect until February 8, 1996, which is
one day after the State Board issued its final determination regarding GECOMs ERA
. However, despite the prior absence of regulations dealing with the State
Boards reviewal of late-filed applications, the inquiry does not end here. In
light of New Energy, the Court finds that it would be appropriate and
just for the State Board to consider the totality of the relevant facts
and make a decision as to whether the late filed ERA Application should
At oral argument, the State Board argued that the issue regarding the timeliness
of GECOMs ERA Application is a discretion of the State Tax Board and
that the State Board need[s] to be allowed to exercise that discretion, which
they have not been allowed to do yet in this case. (Oral
Argument Tr. at 22.) In addition, the State Board has stated that
The case must be remanded to the State Board to decide if GECOMs
ERA deduction application was timely filed or, in the alternative, if GECOM has
a good excuse for late-filing the application. (Respt. Br. at 22.)
In light of New Energy, the State Board has the discretion to reconsider
its denial of the application.
Therefore, the Court remands the case for further examination. The State Board
is instructed to conduct a hearing during which it shall consider any probative
evidence submitted by GECOM as to whether the ERA Application should be approved
regardless of its late-filing. The Court notes that while the State Board
may consider GECOMs ERA Application on its merits, it is not by this
decision necessarily required to grant it. See New Energy, 585 N.E.2d at
40 (affirming trial courts ruling that State Board could not deny New Energys
deduction application based solely on its untimely filing.) Cf. Graybar, 723 N.E.2d at
496. The new regulation (Ind. Admin. Code tit. 50, r. 10-4-2) will
apply on rehearing.
For the aforementioned reasons, pursuant to Trial Rule 58, the Court hereby
DENIES GECOMs motion for summary judgment. The Court further REMANDS the State
Boards final determination for further proceedings consistent with this order.
SO ORDERED this 26th day of July, 2000.
Thomas G. Fisher, Judge
KRIEG DeVAULT ALEXANDER & CAPEHART
2800 One Indiana Square
Indianapolis, Indiana 46204
Karen M. Freeman-Wilson
Attorney General of Indiana
By: Ted J. Holaday
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770
nd. Ann. Code § 6-1.1-12.1-1 (West 2000) defines Economic Revitalization Area as
an area which is within the corporate limits of a city, town, or
county which has become undesirable for, or impossible of, normal development and occupancy
because of a lack of development, cessation of growth, deterioration of improvements or
character of occupancy, age obsolescence, substandard buildings, or other factors which may have
impaired values or prevent a normal development of property or use of property.
Personal property returns must be filed between March 1 and May 15
unless the taxpayer obtains an extension of time.
See IC §§ 6-1.1-3-7
and 6.1.1-12.1-5.5. On May 1, 1995, GECOM requested a 30-day extension of
time to file its Indiana Business Tangible Personal Property Tax Return until June
14, 1995. The Washington Township Assessor granted the extension.
(Respt Ex. 2.)
The evidence presented by GECOM shows that the Washington Township Assessor attached
a handwritten note to GECOMs Application that read, Hand delivered before June 15th
. . . . (Petr Ex. 4.) However, on June 15, 1995,
the Decatur County Auditors office telephoned the Accounting Manager of GECOM and informed
him that one of the copies of the Application was missing a required
signature. (Werner Aff. at ¶ 9.) GECOMs Accounting Manager then went
to the Auditors Office and signed the copy of the ERA Application missing
a signature and entered the resigning date of June 15, 1995.
The State Boards notice gave GECOM three weeks to dispute the
$0 finding, voice objections, and/or present any additional evidence which was pertinent to
the ERA Application. GECOM claims that it never received the State Boards
Notice. (Werner Aff. at ¶ 14.) Conversely, the State Board maintains
that such Notice was not returned to it as undeliverable. (Harris Aff.
at ¶ 7.)
The Court notes that while decisions of the Indiana Court of Appeals
are not controlling authority in the Tax Court, they can be considered persuasive
See Uniden Am. Corp. v. Department of State Revenue, 718 N.E.2d
821, 828 (Ind. Tax Ct. 1999); see also LeSea Broad. Corp. v. State
Bd. of Tax Commrs, 512 N.E.2d 506, 509 (Ind. Tax Ct. 1987), 511
N.E.2d 1009 (Ind. 1987).
However, since the regulation is a creature of the State Board, the
State Board knew of the regulation and its requirements, its effective date notwithstanding,
when it issued its final determination in this case.