ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
TIMOTHY R. SENDAK STEVE CARTER
PEGGY JO STAMPER ATTORNEY GENERAL OF INDIANA
SENDAK, ROMINGER, STAMPER Indianapolis, IN
Crown Point, IN
MICHAEL C. DART
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
MILLER VILLAGE PROPERTIES CO., LLP, )
v. ) Cause No. 45T10-0205-TA-51
INDIANA BOARD OF TAX REVIEW, )
ORDER ON RESPONDENTS MOTION TO DISMISS AND
PETITIONERS MOTION FOR LEAVE TO AMEND
December 11, 2002
Miller Village Properties Co., LLP (Miller Village) appeals the final determination of the
Indiana Board of Tax Review (Indiana Board) assessing its real property for the
1995 tax year. The dispositive issue before the Court is whether it
has jurisdiction over Miller Villages appeal. For the reasons stated below, the
Court DISMISSES Miller Villages appeal.
FACTS AND PROCEDURAL HISTORY
Miller Village owns an apartment building in Gary, Indiana. On September 3,
1999, Miller Village appealed its 1995 assessment to the Indiana State Board of
Tax Commissioners (State Board). On December 6, 2000, the State Board held
a hearing on Miller Villages appeal.
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 of Tax Review (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. Consequently, when a final determination was issued on Miller Villages appeal
in March 2002, it was issued by the Indiana Board.
On May 13, 2002, Miller Village appealed the Indiana Boards final determination to
this Court, naming the Indiana Board as the sole respondent. On August
13, 2002, the Indiana Board, in its responsive pleading, moved to dismiss Miller
Villages petition on the basis that this Court lacked subject matter jurisdiction.
Specifically, the Indiana Board alleged that Miller Village failed to identify the local
government officials who made the original assessment determination as the appropriate parties to
the proceeding. On September 10, 2002, Miller Village filed a motion for
leave to amend its petition to include the appropriate local government officials.
The Court conducted a hearing on both motions on November 14, 2002.
Additional facts will be provided as needed.
ANALYSIS AND OPINION
Standard of Review
This Court gives 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).
While Tax Court appeals are generally subject to the provisions of the
Administrative Orders and Procedures Act (AOPA) contained in Indiana Code § 4-21.5-5, see
Ind. Code § 6-1.1-15-5(b) (Supp. 2001), the Court reviews final determinations of the
Indiana Board under Indiana Code § 33-3-5-14.8. Ind. Code § 33-3-5-14.8(a) (Supp.
2001). That statute provides in relevant part:
The tax court shall grant relief . . . only if [it] 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)(1)-(5) (Supp. 2001).
The dispositive issue before the Court is whether it has jurisdiction over Miller
Villages appeal. Every action has three jurisdictional elements: 1) jurisdiction of
the subject matter; 2) jurisdiction of the person; and 3) jurisdiction of the
particular case. Carroll County Rural Elec. Membership Corp. v. Indiana Dept of
State Revenue, 733 N.E.2d 44, 47 (Ind. Tax Ct. 2000). The Indiana
Board maintains that this Court lacks subject matter jurisdiction over Miller Villages appeal
and therefore the case must be dismissed.
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.
The general scope of authority conferred upon the Tax Court is governed by
Indiana Code § 33-3-5-2. This statute provides 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). Miller Villages appeal
meets both jurisdictional prerequisites. First, Miller Village challenges the assessment of Indianas
property tax. Second, it appeals initially from a final determination of the
Indiana Board. Thus, this Court has subject matter jurisdiction over Miller Villages
Nevertheless, as the Court stated earlier, every action has three jurisdictional elements.
Carroll County, 733 N.E.2d at 47. Consequently, because the Court maintains subject
matter jurisdiction does not necessarily mean that it has jurisdiction over the particular
See footnote Jurisdiction over a particular case refers to the right, authority, and
power to hear and determine a specific case over which a court has
subject matter jurisdiction.
Id. at 50. Whether a court has jurisdiction
to hear a specific case depends upon the existence of particular facts contained
within the case. Id.
When this Court has subject matter jurisdiction pursuant to Indiana Code § 33-3-5-2,
an appeal is subject to certain provisions and requirements of AOPA, including Indiana
Code § 4-21.5-5-7(b)(4). See Ind. Code § 6-1.1-15-5(b). This section 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)
In its petition seeking judicial review of the Indiana Boards final determination, Miller
Village named the Indiana Board as the sole respondent. Indiana Code §
6-1.1-15-5(b)(1) provides, however, 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[.] Ind. Code § 6-1.1-15-5(b)(1). See also Ind.Tax Court
Rule 4(B)(2)(a) (2002) (providing that [i]n 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 § 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. See Caylor-Nickel Clinic, P.C. v. Indiana Dept of State Revenue, 569
N.E.2d 765, 772 (Ind. Tax Ct. 1991) affd 587 N.E.2d 1311 (Ind. 1992).
The legislatures specific reference to distinct taxing officials and entities in Indiana
Code § 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 § 6-1.1-15.
By naming the Indiana Board as the only party in this case, Miller
Village 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 Miller Village did not comply with the requirements of
Indiana Code § 6-1.1-15-5(b), the Tax Court does not have jurisdiction over its
appeal. See Ind. Code § 33-3-5-11(a); Thousand Trails, 757 N.E.2d at 107576.
Accordingly, the Court must DISMISS Miller Villages appeal for lack of jurisdiction.
Miller Village filed a motion for leave to amend its petition on September
10, 2002. See Ind. Trial Rule 15(A) (stating that once a responsive
pleading has been filed, leave of court is required to amend a pleading).
Miller Village argues that if the Court were to grant it leave
to amend its petition, the amendment would relate back, under Indiana Trial Rule
15(C), to the original petition it filed on May 13, 2002.
Miller Village had 45 days after it received notice of the Indiana Boards
March 28, 2002 final determination 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). But cf. T.R. 15(A) (stating that a party may
amend its pleading once as a matter of course at any time before
a responsive pleading is served). Because Miller Villages original petition was insufficient
to invoke this Courts jurisdiction, its amended petition, which was outside the 45-day
window, cannot relate back to its original petition. As a result, Miller
Villages motion for leave to amend is DENIED.
For the foregoing reasons, the Court GRANTS the Indiana Boards motion to dismiss,
and DENIES Miller Villages motion for leave to amend. The cause is
now DISMISSED. The parties shall each pay their own costs.
SO ORDERED this 11th day of December, 2002.
Thomas G. Fisher, Judge
Indiana Tax Court
Timothy R. Sendak
Peggy Jo Stamper
SENDAK, ROMINGER, STAMPER & WHITTEN
209 South Main Street
Crown Point, IN 46307
Attorney General of Indiana
By: Michael C. Dart
Deputy Attorney General
Indiana Government Center South
402 W. Washington St.
Indianapolis, IN 46204-2770
George C. Paras
Attorney at Law
1000 East 80th Place
Suite 415, North Tower
Merrillville, IN 46410
Lee J. Christakis
7878 Broadway, Suite G
Merrillville, IN 46410
Effective January 1, 2002, the legislature also created the Department of Local
Government Finance (DLGF).
Ind. Code § 6-1.1-30-1.1 (West Supp. 2001)(eff. 1-1-02); P.L.
198-2001, § 66. Pursuant to Indiana Code § 6-1.5-5-8, the DLGF is
substituted for the State Board in appeals from final determinations of the State
Board that were issued before January 1, 2002. Ind. Code § 6-1.5-5-8
(West Supp. 2001)(eff. 1-1-02)(emphasis added); P.L. 198-2001, § 95.
Our Supreme Court recently stated in dictum, however, that the Tax
Court would apply the standard of review set forth in AOPA, Indiana Code
§ 4-21.5-5-14(d), and not Indiana Code § 33-3-5-14.8.
State Bd. of Tax
Commrs v. Garcia, 766 N.E.2d 341, 345 (Ind. 2002).
Although this particular type of jurisdictional challenge was not raised by
either party, the Court will raise it sua sponte.
See Thousand Trails,
Inc. v. State Bd. of Tax Commrs, 757 N.E.2d 1072, 1075 n.5 (Ind.
Tax Ct. 2001). The appropriate means for a party to challenge a
courts jurisdiction over a particular case is a motion under Indiana Trial Rule
12(B)(6). Carroll County Rural Elec. Membership Corp. v. Indiana Dept of State
Revenue, 733 N.E.2d 44, 50 (Ind. Tax Ct. 2000).
This Court reiterates its reminder to potential litigants: file earlier
rather than later.