ATTORNEY FOR PETITIONER
DOUGLAS J. D e GLOPPER
ATTORNEY AT LAW
ATTORNEYS FOR RESPONDENT
ATTORNEY GENERAL OF INDIANA
MICHAEL C. DART
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
MERCHANTS NATIONAL BANK & TRUST )
v. ) Cause No. 49T10-0203-TA-34
INDIANA BOARD OF TAX REVIEW, )
ORDER ON MOTION TO DISMISS
NOT FOR PUBLICATION
AUGUST 12, 2002
Merchants National Bank & Trust Company (Merchants) appeals the final determination of the
Indiana Board of Tax Review (Indiana Board) assessing Merchants land and improvements for
the 1997 tax year. The issue presented is whether the Tax Court
has subject matter jurisdiction over Merchants appeal. For the reasons stated below,
the Court DISMISSES Merchants appeal for the lack of subject matter jurisdiction.
FACTS AND PROCEDURAL HISTORY
Merchants owns two parcels of real property in Wayne Township, Marion County, Indiana.
Merchants appealed the Wayne Township Assessors assessment of its parcels for the
1997 tax year to the Marion County Property Tax Assessment Board of Appeals
(PTABOA). The PTABOA denied Merchants any relief, and Merchants appealed to the
State Board of Tax Commissioners (State Board). On August 25, 1999, the
State Board held a hearing on Merchants claim.
On December 31, 2001, the Legislature abolished the State Board. Pub. L.
No. 198-2001, § 119(b)(2). Effective January 1, 2002, the Legislature created the
Indiana Board as successor to the State Board. Ind. Code §§ 6-1.5-1-3;
6-1.5-4-1 (Supp. 2001); Pub. L. No. 198-2001, § 95. The State Board
had not yet issued a final determination on Merchants claim as of the
date the Legislature abolished the State Board. On February 5, 2002, the
Indiana Board issued a final determination denying Merchants any relief.
On March 21, 2002, Merchants filed an original tax appeal. Merchants petition
named the Indiana Board as the sole respondent. On May 20, 2002,
the Indiana Board moved this Court to dismiss Merchants petition for the lack
of subject matter jurisdiction because Merchants had failed to identify any parties to
the proceeding that led to the Indiana Boards final determination. The parties
waived oral argument and this Court took the matter under advisement on August
5, 2002. Additional facts will be provided as needed.
ANALYSIS AND OPINION
Standard of Review
This Court will give great deference to final determinations of the Indiana Board
when it acts within the scope of its authority. See Thousand Trails,
Inc. v. State Bd. of Tax Commrs, 757 N.E.2d 1072, 1075 (Ind. Tax
Ct. 2001); see also Ind. Code §§ 6-1.1-15-4; 6-1.1-15-5; 6-1.5-1-3; 6-1.5-4-1 (Supp. 2001);
Pub. L. No. 198-2001, § 119(b)(2) (replacing the State Board with the Indiana
Board). Tax Court appeals in general are subject to the provisions of
the Administrative Orders and Procedures Act, Indiana Code chapter 4-21.5-5. Ind. Code
§ 6-1.1-15-5(b) (Supp. 2001). This Court will reverse a final determination of
the Indiana Board
only if the tax court determines that a person seeking judicial relief has
been prejudiced by an action of the Indiana board of tax review that
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction,
authority, or limitations;
(4) without observance of procedure required by law; or
(5) unsupported by substantial or reliable evidence.
Ind. Code § 33-3-5-14.8(e) (Supp. 2001). See also Ind. Code § 33-3-5-14.8(a)
(Supp. 2001) (providing that Indiana Code Section 4-21.5-5-14 does not apply with
respect to judicial review of final determinations of the Indiana Board); but see
State Bd. of Tax Commrs v. Garcia, 766 N.E.2d 341, 345 (Ind. 2002)
(citing in dictum Indiana Code Section 4-21.5-5-14(d), not Indiana Code Section 33-3-5-14.8, as
the Tax Courts standard of review).
The sole issue is whether the Tax Court has jurisdiction over Merchants appeal.
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.
Musgrave v. State Bd. of Tax Commrs, 658 N.E.2d 135, 138 (Ind.
Tax Ct. 1995). A determination as to whether subject matter jurisdiction exists
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. This Courts authority to hear and determine a case is
set forth in Indiana Code Section 33-3-5-2, which states that the Tax Court
has exclusive jurisdiction over any case that arises under the tax laws of
[Indiana] and that is an initial appeal of a final determination made by
the Indiana Board. Ind. Code § 33-3-5-2(a)(2) (Supp. 2001). Such an
appeal shall be taken to the court under IC 4-21.5-5. I.C. 6-1.1-15-5(b).
Indiana Code Section 4-21.5-5-7(b)(4) provides, inter alia, that [a] petition for review
must . . . set forth the following: . . . (4) Identification
of persons who were parties to any proceeding that led to the agency
action. Ind. Code § 4-21.5-5-7(b)(4) (1998).
Merchants petition seeking judicial review of the Indiana Boards final determination named the
Indiana Board as the only respondent. Indiana Code Section 6-1.1-15-5(b)(1) provides that
the following are parties to judicial review of a final determination by the
Indiana Board: [a]  township assessor, county assessor, member of a county
property tax assessment board of appeals, or county property tax assessment board of
appeals that made the original assessment determination under appeal under this section[.]
I.C. § 6-1.1-15-5(b)(1). See also Tax Court R. 4(B)(2)(a) (2002) (providing that
[i]n an original tax appeals initiated by taxpayers, the named respondents shall be
as follows: . . . . the local governmental official or entity that
made the original assessment valuation, exemption determination, or other determination under the tax
laws that was the subject of the proceedings before the Indiana Board of
Indiana Code Section 6-1.1-15-5(b)(1) does not list the Indiana Board as a party
to judicial review. Therefore, the maxim expressio unius est exclusio alterius (the
enumeration of certain things in a statute implies the exclusion of all others)
applies here. See Ispat Inland, Inc. v. State Bd. of Tax Commrs,
757 N.E.2d 1078, 1085 (Ind. Tax Ct. 2001), review granted. The
Legislatures specific reference to distinct taxing officials and entities in Indiana Code Section
6-1.1-15-5(b)(1) implies that the legislature intended to exclude any person or entity not
listed. See id. Thus, the Court finds that the Legislature did
not intend for the Indiana Board to be a party to a proceeding
for judicial review under Indiana Code chapter 6-1.1-15.
By naming the Indiana Board as the only party to the instant case,
Merchants has not complied with the requirements for initiating an original tax appeal.
See I.C. § 6-1.1-15-5(b). The Indiana Legislature has expressly provided 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(a) (1998); Thousand Trails, 757 N.E.2d
at 107576. Because Merchants did not comply with the requirements of Indiana
Code Section 6-1.1-15-5(b), the Tax Court does not have jurisdiction over its appeal.
See I.C. § 33-3-5-11(a); Thousand Trails, 757 N.E.2d at 107576. Accordingly,
the Court GRANTS the Indiana Boards motion to dismiss for the lack of
subject matter jurisdiction.
For the foregoing reasons, the Court GRANTS the Indiana Boards motion to dismiss.
The cause is now DISMISSED. The parties shall each pay their
Thomas G. Fisher, Judge
Indiana Tax Court
Douglas J. DeGlopper
Attorney at Law
318 East 64th St.
Indianapolis, IN 46220
Attorney General of Indiana
By: Michael C. Dart
Deputy Attorney General
Indiana Government Center South
402 W. Washington St.
Indianapolis, IN 46204-2770
Footnote: Merchants argues that an amended petition it filed on May 20, 2002,
should relate back to the original petition it filed on March 21, 2002.
Merchants had 45 days from the Indiana Boards February 7, 2002 final
determination (or until March 22, 2002) to initiate an original tax appeal sufficient
to invoke this Courts jurisdiction.
See Ind. Code § 6-1.1-15-5(c)(1) (Supp. 2001).
[An] untimely amended petition cannot relate back to a timely-filed original petition
that was insufficient to invoke the . . . court's jurisdiction. Indiana
Dept of Envtl. Mgmt. v. Jennings Northwest Regional Utilities, 760 N.E.2d 184, 187
(Ind. Ct. App. 2001). See generally Indiana Trial R. 15. Because
Merchants original petition is insufficient to invoke this Courts jurisdiction, Merchants amended petition
cannot relate back to its original petition.