PETITIONER APPEARING PRO SE: ATTORNEYS FOR RESPONDENTS:
KEAG FAMILY LIMITED PARTNERSHIP
by Gary L. Oetting, its First General Partner STEVE CARTER
Fort Wayne, IN ATTORNEY GENERAL OF INDIANA
DEPUTY ATTORNEY GENERAL
IN THE INDIANA TAX COURT
KEAG FAMILY LIMITED PARTNERSHIP, ) ) Petitioner, ) v. )) Cause No. 49T10-0402-TA-4
Ind. Tax Court Rule 3(E). The rule does not, however, provide the
method by which the Indiana Board is to notify petitioners when the record
has been prepared. Similarly, the statute governing the preparation of the certified
record for judicial review contains no such provisions either.
See Ind. Code
Ann. § 6-1.1-15-6 (West Supp. 2003). However, the Court finds the provisions
of Trial Rule 5(B)(2) instructive: when service is made by mail, the
papers shall be deposited in the United States mail addressed to the person
on whom they are being served, with postage prepaid. Ind. Trial Rule
5(B)(2). See also Ind. Tax Court Rule 1 (providing that the Indiana
Trial Rules are applicable to actions filed in the Tax Court). Accordingly,
the Indiana Board could notify Keag by mail that the certified record was
Generally, it is the Indiana Boards practice to mail notice, in the form of an invoice, that a record has been prepared. (See Aff. of Nickita Brewer at 1.) The record is then released upon payment of the invoice balance. (See Aff. of Nickita Brewer at Ex. B.) In this instance, because Keag did not have an outstanding balance due for the Records preparation, and requested that the Record be mailed to its office, the notice and record were mailed at the same time on March 19, 2004. See footnote ( See Aff. of Nickita Brewer at Ex. A and Ex. D.) Thus, Keag had thirty (30) days from March 19, 2004, to file the Record. See Carter v. Review Bd. of Indiana Dept of Employment & Training Servs., 526 N.E.2d 717, 718-19 (Ind. Ct. App. 1988) (stating that when an administrative agency sends notice through the regular course of mail, a rebuttable presumption arises that such notice is received), trans. denied. See also T.R. 5(B)(2) (providing that [s]ervice shall be deemed complete upon mailing).
Keag attempts to rebut the presumption with the assertion that it was not notified until April 13, 2004, because its offices were closed from March 19, 2004, to April 13, 2004, for vacation shutdown. (See Petr Resp. to Supp. Answer at 2.) In essence, Keag claims that because the offices were closed and mail was not opened until April 13, 2004, that is the date he received notice. (See Oral Argument Tr. at 6.) Accordingly, Keag claims it timely filed the Record on April 28, 2004 (15 days from the alleged date of notice). See footnote ( See Oral Argument Tr. at 8.)
To support its claim that the office was closed, Gary Oetting, Keags first general partner, provided a return travel itinerary indicating that he returned from a trip to the Bahamas on April 11, 2004. (See Petr Resp. to Supp. Answer at 6-7.) However, no date of departure evidence was provided to support the assertion that the office was closed beginning on Monday, March 22, 2004. Furthermore, assuming arguendo that the office was closed during the three-week period, Keag was still able to file the Record by April 21, 2004 the deadline pursuant to Tax Court Rule 3(E). See Ind. Trial Rule 6(A) and (E). Therefore, Keag failed to rebut the presumption that it received notice on March 19, 2004.
Consequently, when Keag filed the Record on April 28, 2004, it failed to comply with the procedural requirements for bringing a tax court appeal. See footnote Thus, the Court does not have jurisdiction over Keags appeal. See Miller Vill. Props. Co., LLP v. Indiana Bd. of Tax Review, 779 N.E.2d 986, 989-90 (Ind. Tax Ct. 2002), review denied; see also Cardiology Assocs. of N.W. Indiana, P.C. v. Collins, 804 N.E.2d 151, 155 (Ind. Ct. App. 2004) (holding that Court lacked jurisdiction over an interlocutory appeal when the parties failed to follow the proper procedure for bringing the appeal).
Thomas G. Fisher, Judge
Indiana Tax Court
Attorney General of Indiana
By: Joel Schiff
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770