ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
TIMOTHY J. BENDER and JEFFREY A. MODISETT
MICHAEL RYAN HARTMAN ATTORNEY GENERAL OF INDIANA
BINGHAM SUMMERS WELSH & SPILMAN
TED J. HOLADAY
DEPUTY ATTORNEY GENERAL
INDIANA SUGARS, INC., ) ) Petitioners, ) ) v. ) Case No. 49T10-9603-TA-00028 ) STATE BOARD OF TAX COMMISSIONERS, ) ) Respondent. )______________________________________________________________________________
August 19, 1997
is not sufficient evidence that Sugars mailed its application on time. Sugars claims it filed the
form via First Class U. S. Mail before the filing deadline and thus is entitled to the credit.
This Court, finding Sugars has presented reasonable evidence of timely filing its EZ-1
application via First Class U. S. Mail, REVERSES the State Board's final determination
denying Sugars a credit from business personal property tax.
14, 1993_including personally mailing the EZ-1 at the post office. The EZ-1 was never
received by the Lake County Auditor. Sugars' credit was denied due to its failure to timely
file an EZ-1. Upon learning that its EZ-1 credit for 1993 had been denied, Sugars filed for
review by the Lake County Board of Review. Sugars provided the County Board of Review
with a copy of the EZ-1 form for 1993. On March 7, 1995, the Board of Review denied
Sugars protest because it had no record of an EZ-1 being filed by Sugars prior to the filing
deadline. On March 22, 1995, Sugars appealed to the State Board. The credit was denied by
the State Board on February 22, 1996 because Sugars had not timely filed an EZ-1. Sugars
filed its original appeal in this Court on March 27, 1996 protesting the denial of the credit.
Oral arguments were heard before this Court on May 12, 1997.
considered filed if placed in the U.S. Mail with First Class postage, and what evidence is
necessary to prove timely mailing. Determining whether an application was filed on time is
very different than deciding to accept or deny something summarily labeled as late-filed. No
one doubts that an application that is truly late-filed may be denied. It is is arbitrary and
capricious to simply assume the application was late and proceed on that assumption.
However, the State Board has properly framed and briefed the issues for this Court and they
will be examined in turn.
Taxpayers seeking an EZ tax credit are required by statute to "file" a certified application with the auditor of the county where the property is located. Ind. Code Ann. § 6- 1.1-20.8-2(a)(1). Neither the statute nor the regulations define what constitutes filing or how it is to occur. The State Board argues that simply placing the application in the U.S. Mail with prepaid First Class postage is insufficient. Instead, the State Board asserts that filing can only be properly done via certified or registered mail. Although filing via certified mail may be prudent, it is not required.
In LeSea Broadcasting Corp. v. State Bd. of Tax Comm'rs, 512 N.E.2d 506 (Ind. Tax Ct.), adopted, 511 N.E.2d 1009 (Ind. 1987), this Court was asked to decide whether notice of an intent to appeal was timely filed. The notice was mailed to the State Board prior to the filing deadline, but was not received by the State Board until after the deadline had passed. The applicable statute was silent with respect to what constituted filing an appeal or what method of filing was proper. Id. at 509. This Court held that filing of the notice of intent to appeal was complete upon depositing the same in the U.S. Mail with sufficient First Class postage affixed. Id. Despite this clear holding, the State Board argues that LeSea should not
be followed. The Court points out that the State Board has acquiesced in the holding. Since
LeSea was handed down in 1987, the State Board has passed no regulations defining filing.
Further, the Supreme Court has affirmed this Court. See LeSea Broadcasting Corp. v. State
Bd. of Tax Comm'rs, 511 N.E.2d 1009 (Ind. 1987).
Although there are no statutes or regulations governing filing with the State Board, there are specific statutes governing filing with the Indiana Department of Revenue (Department). Although it is clear that these statutes do not govern or apply to State Board actions, an obvious analogy may be drawn between filing documents with the Department and filing documents with the State Board. The persuasiveness of an argument made by analogy depends on the similarities between the analogue group. See Farm Credit Servs. v. Indiana Dept. of State Revenue, 677 N.E.2d 645, 648 (Ind. Tax Ct. 1997). The State Board administers the property tax system in Indiana. Ind. Code Ann. § 6-1.1-30-14 (West 1989). The Department administers, among others, the income tax in Indiana. Ind. Code Ann. § 6- 8.1-3-1 (West Supp. 1996). Sugars was filing an application for tax credit with the State Board. This is similar to filing a return or application for exemption with the Department and is indeed more analogous to the case at hand than to LeSea. LeSea dealt with court procedures for initiating an appeal, not filing tax documents.
Filing with the Department is defined by Ind. Code Ann. § 6-8.1-6-3(a)(1) (West 1989). Under this statute, the Department considers a document filed if it is deposited in the United States mail, postmarked prior to the filing deadline. Ind. Code Ann. § 6-8.1-6-3 (b) discusses filing by certified or registered mail, which is accomplished in a similar manner. Thus, the legislature has said that mailing via regular or certified mail constitutes filing for
Department purposes. If Ind. Code Ann. § 6-8.1-6-3(a)(1) were applied by analogy, the
State Board would be in error when arguing that certified or registered mail is required.
In light of LeSea and the above analogy, it would seem unjust to require more than filing via First Class U.S. Mail. Common sense tells us that tax forms of all types are typically filed through regular mail. To now require otherwise might set a technical trap for unwary and unsophisticated taxpayers. This Court will not set such a trap. Until such time as statutes are enacted or regulations are promulgated requiring more, mailing forms to the State Board via First Class U.S. Mail constitutes filing.
The State Board also argues that Sugars cannot provide sufficient evidence of timely mailing its application. The State Board contends that more evidence than the testimony of Sugars' controller is necessary to show timely mailing. The State Board again argues that evidence such as a certified mail card is necessary. This is not the case.
A study of what evidence is necessary to prove timely mailing leads us first to F & F Construction Co. v. Royal Globe Insurance Co., 423 N.E.2d 654 (Ind. Ct. App. 1981). In F & F, the dispute arose over whether an insurance company had a contractual duty to defend its insured. The insurance policy required the insured to immediately forward notice to the insurance company of any suit brought against the insured. Subsequent to a suit being filed against the insured, the president of the insured placed the required notice papers on the desk of his office manager. The office manager was told to mail the papers to the insurance company. The papers were never received by the insurance company. No one involved in the mailing process remembers seeing the papers or mailing them. The insurance company refused to defend its insured because of failure to comply with the policy provisions. The
insured argued that summary judgment in favor of the insurance company was not appropriate
because a genuine controversy existed as to whether the documents were placed in the mail
and subsequently lost by the insurance company. The Court of Appeals held that evidence of
following normal office procedures was not enough to prove mailing. Id. at 656. "[P]roof
consisting testimony from one with direct and actual knowledge of the particular message in
question is required to establish proof of mailing." Id. Sugars provides enough evidence to
satisfy the test from F & F. Sugars' controller testified under oath that he personally mailed
the applications. This is precisely the type of evidence required by the holding in F & F.
Nine years later in Tri Creek Lumber Co. v. State Bd. of Tax Comm'rs, 558 N.E.2d 1130 (Ind. Tax Ct. 1990), this Court was asked to determine whether the assessment of a penalty for failure to file a personal property tax return was proper. Tri Creek's return was never received by the assessor and Tri Creek argued that the return was simply lost in the mail. As it did above, this Court looked to the statutes governing Department filings for an analogy. Those statutes clearly require "reasonable evidence" of mailing on or before the due date.See footnote 1 The Court held that Tri Creek did not produce reasonable evidence of depositing the document in the mail. The only evidence Tri Creek presented to show that the return was
mailed was the testimony of the President of Tri Creek that he had given the return to his
secretary to mail. Id. at 1131. This was not reasonable evidence.
Sugars presented reasonable evidence of mailing the tax credit application on or before the due date. Sugars presented evidence of extensive procedures designed to ensure timely filing of its application. Sugars accountant prepared the application and delivered it to Sugars. The document needed only signing and mailing. Further, Sugars' controller, Mr. Witt, testified that he personally placed the return in the mail on or before the due date. This is reasonable evidence of mailing and distinguishes Sugars' case from Tri Creek's. Tri Creek was able to show only that a secretary was asked to mail the form. No reasonable evidence of mailing was presented by Tri Creek.
Despite the holding in F & F and the analogy of Tri Creek, the State Board argues that the sworn testimony of a witness is not enough evidence to prove the were timely mailed. In the Indiana and United States legal systems, witnesses are sworn to tell the truth. Defendants are often sentenced to lengthy stays at correctional institutions based on little more than the sworn testimony of a witness. However, the State Board is not willing to accept the sworn testimony of Sugars' controller as direct or reasonable evidence of mailing. The State Board has effectively adopted a position that taxpayers who miss deadlines will simply lie under oath and testify that they personally mailed the documents in a timely manner. The Court is not so jaded.
This Court believes that the sworn testimony of a witness constitutes sufficient evidence to prove timely mailing. Although the Court appreciates the fears of the State Board, and reminds witnesses that telling a lie under oath will result in severe penalties
including time in jailSee footnote
, this Court's trust that people tell the truth under oath has not waned.
Sugars' controller testified under oath that he personally placed the application in the mail.
This testimony constitutes direct testimony of one with personal knowledge and is reasonable
evidence of mailing. Therefore, this Court finds that Sugars application was filed in a timely
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