ATTORNEY FOR PETITIONER
DOUGLAS J. D e GLOPPER
ATTORNEY AT LAW
Indianapolis, IN
ATTORNEYS FOR RESPONDENT
STEVE CARTER
ATTORNEY GENERAL OF INDIANA
Indianapolis, IN

MICHAEL C. DART
DEPUTY ATTORNEY GENERAL
Indianapolis, IN


_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

MERCHANTS NATIONAL BANK & TRUST                                       )
COMPANY,                                                                       )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No.    49T10-0203-TA-34
                                                                               )        
INDIANA BOARD OF TAX REVIEW,                                                   )
                                                                               )            
    Respondent.                                                                )    
                                     
                                  
ORDER ON MOTION TO DISMISS

                                _____

NOT FOR PUBLICATION
AUGUST 12, 2002

FISHER, J.
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 Assessor’s 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 Board’s 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 Comm’rs, 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 is:

(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 Comm’rs 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 Court’s standard of review).

Discussion

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 Comm’rs, 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 Court’s 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 Board’s 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 Tax Review”).
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 Comm’rs, 757 N.E.2d 1078, 1085 (Ind. Tax Ct. 2001), review granted. The Legislature’s 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 1075–76. 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 1075–76. Accordingly, the Court GRANTS the Indiana Board’s motion to dismiss for the lack of subject matter jurisdiction. See footnote
CONCLUSION

For the foregoing reasons, the Court GRANTS the Indiana Board’s motion to dismiss. The cause is now DISMISSED. The parties shall each pay their own costs.


________________________________
Thomas G. Fisher, Judge
Indiana Tax Court

Distribution:

Douglas J. DeGlopper
Attorney at Law
318 East 64th St.
Indianapolis, IN 46220

Steve Carter
Attorney General of Indiana
By: Michael C. Dart
Deputy Attorney General
Indiana Government Center South
Fifth Floor
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 Board’s February 7, 2002 final determination (or until March 22, 2002) to initiate an original tax appeal sufficient to invoke this Court’s 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 Dep’t 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 Court’s jurisdiction, Merchants’ amended petition cannot relate back to its original petition.