IN THE INDIANA TAX COURT Case No. 49T10-9603-TA-00025
GECOM CORPORATION,
                            )
                                 )
    Petitioner,                  )
                                 )
           v.                    ) 
                                 )
STATE BOARD OF TAX               )
COMMISSIONERS,                   )
                                 )
    Respondent.                  )    

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NOT FOR PUBLICATION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) See footnote 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. See footnote (Pet’r Br. at 3.)
Facts and Procedural History


GECOM contends that it delivered the ERA Application to the Decatur County Auditor and to the Greensburg Mayor’s Office on or about June 12, 1995, before the filing deadline. See footnote The State Board asserts that it received GECOM’s ERA Application file-marked June 15, 1995, which was signed and dated by GECOM’s 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. See footnote 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. (Pet’r Ex. C and Harris Aff. at ¶ 9.)
Consequently, GECOM filed its original tax appeal in this Court on March 22, 1996. Deeming the State Board’s 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 GECOM’s motion on November 20, 1997. GECOM requests that the Court reverse the State Board’s final determination and declare its ERA Application timely filed. (Pet’r 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 Comm’rs, 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 Comm’rs, 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 Comm’rs, 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 Comm’rs, 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 Comm’rs v. Gatling Gun Club, 420 N.E.2d 1324, 1328 (Ind. Ct. App. 1981).
D iscussion

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 Assessor’s Office before June 15th. (Pet’r. 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 Board’s perspective, the application was filed one day past the filing deadline. The Court cannot declare the State Board’s determination improper based on this information. Therefore, the Court finds that GECOM’s ERA Application was not timely filed and denies GECOM’s 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 Energy’s ERA deduction application based on New Energy’s untimely filing. See footnote In 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 Comm’rs, 723 N.E.2d 491, 496 (Ind. Tax Ct. 2000) (applying the same reasoning in determining that the State Board had jurisdiction to consider taxpayer’s 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 tax revenues.
(6) Whether the late-filing was not due to the taxpayer’s 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 GECOM’s ERA Application See footnote . However, despite the prior absence of regulations dealing with the State Board’s 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 be approved.
At oral argument, the State Board argued that the issue regarding the timeliness of GECOM’s 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 GECOM’s ERA deduction application was timely filed or, in the alternative, if GECOM has a good excuse for late-filing the application.“ (Resp’t. 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 GECOM’s 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 court’s ruling that State Board could not deny New Energy’s 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.

Conclusion

    For the aforementioned reasons, pursuant to Trial Rule 58, the Court hereby DENIES GECOM’s motion for summary judgment. The Court further REMANDS the State Board’s final determination for further proceedings consistent with this order.
    SO ORDERED this 26th day of July, 2000.

____________________________
            Thomas G. Fisher, Judge
Indiana Tax Court


Distribution:

Robert Johnson
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



Footnote: I 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.

Footnote: 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. (Resp’t Ex. 2.)


Footnote: The evidence presented by GECOM shows that the Washington Township Assessor attached a handwritten note to GECOM’s Application that read, “Hand delivered before June 15th . . . .” (Pet’r Ex. 4.) However, on June 15, 1995, the Decatur County Auditor’s 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.) GECOM’s Accounting Manager then went to the Auditor’s Office and signed the copy of the ERA Application missing a signature and entered the resigning date of June 15, 1995. See id.


Footnote: The State Board’s 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 Board’s Notice. (Werner Aff. at ¶ 14.) Conversely, the State Board maintains that such Notice was not returned to it as undeliverable. (Harris Aff. at ¶ 7.)


Footnote: 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 authority. 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 Comm’rs, 512 N.E.2d 506, 509 (Ind. Tax Ct. 1987), 511 N.E.2d 1009 (Ind. 1987).


Footnote: 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.