Muncie, IN    Indianapolis, IN
Anderson, IN    Indianapolis, IN

AND COOLING,                            )
    Petitioner,                         )
    v.                                  )

            ) Cause No. 49T10-0312-TA-61
REVENUE,            )
    Respondent.            )


July 22, 2004

    Steven R. Kreps d/b/a/ Best Heating and Cooling (Kreps) challenges this Court’s order of February 25, 2004, dismissing his case. The issue is whether Kreps has established that he is entitled to relief under Indiana Trial Rule 60(B).

    Kreps is engaged in the business of installing and servicing residential and commercial heating and cooling systems. After conducting an audit, the Department of State Revenue (Department) assessed Kreps for unpaid individual income tax and sales and use tax liabilities for the 1998, 1999, and 2000 tax years. Kreps protested the assessments; on December 12, 2002, the Department issued two letters of findings (LOFs) denying Kreps’ protest. On December 23, 2003, Kreps initiated an original tax appeal. The Department filed a motion to dismiss on February 6, 2004. The Court granted the Department’s motion on February 25, 2004.
    Kreps has now filed a motion to set aside the dismissal pursuant to Indiana Trial Rule 60(B). The Court conducted a hearing on Kreps’ motion on June 30, 2004. Additional facts will be supplied as necessary

    Trial Rule 60(B) provides, in pertinent part, that “[o]n motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment . . . for the following reasons: (1) mistake, surprise, or excusable neglect[.]” Ind. Trial Rule 60(B)(1). To prevail on such a motion, a party is not only required to show mistake, surprise, or excusable neglect, but also must show that he has a good and meritorious defense to the cause of action. See T.R. 60(B); see also Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1258 (Ind. Ct. App. 1999) (citation omitted), trans. denied. “Because the circumstances of each case will be different, there are no fixed rules or standards for determining what constitutes mistake, surprise, or excusable neglect.” Nwannunu v. Weichman & Assocs., P.C., 770 N.E.2d 871, 876 (Ind. Ct. App. 2002) (citation omitted). Therefore, in making its determination in ruling on the motion, the Court must “balance the need for an efficient judicial system with the judicial preference for deciding disputes on the merits.” Id.
    When the Department filed its motion to dismiss in February 2004, it asserted that this Court “should dismiss [Kreps’] appeal . . . for lack of jurisdiction.” (Resp’t Mot. to Dismiss at 4.) Specifically, the Department alleged that Kreps “filed his appeal more than 180 days after the Department issued its letters of finding. Therefore, th[e] Court does not have jurisdiction to hear [Kreps’] appeal.” See footnote (Resp’t Mot. to Dismiss at 4. (footnote added). Kreps did not file a response to the Department’s motion. The Court, after examining the filing deadlines and filings, granted the Department’s motion to dismiss.
    Kreps now asserts in his motion to set aside this Court’s dismissal that “[t]he petitioner filed a ‘Verified Petition’ on 12/23/03, which directly counters respondent[’]s points in its Motion [for dismissal.] . . . Had [the petition] been considered, a different result would’ve been reached.” (Pet’r Mot. to Set Aside Dismissal at 1.) Thus, Kreps requests “to have the merits of the Motion [to dismiss] looked at [] compared to the facts that are alleged in the [] [p]etition.” (Oral Argument Tr. at 7.)
    First, the Court reminds Kreps that while he was not required to respond to the Department’s motion to dismiss See footnote , it was not this Court’s responsibility to sort through his petition and find evidence countering the allegations subsequently raised by the Department. Furthermore, the Court emphasizes that when Kreps filed his Trial Rule 60(B) motion, he was required to “include a memorandum of law or statement of points and authorities, explaining how relevant authorities support the contentions of the moving party.” Ind. Tax Court Rule 12(B) (emphases added). See also Ind. Trial Rule 9(B) (stating that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be specifically averred”). Kreps’ request that the Court “look at the verified petition” and a mere citation to Trial Rule 60(B)(1) and (5) do little to explain and support his contention that this Court’s order should be set aside. See footnote
    Nevertheless, the Court has re-examined Kreps’ verified petition and nowhere therein does Kreps explain how this Court continues to have jurisdiction despite his untimely filed appeal (the basis of the Department’s motion to dismiss). The Court concludes that Kreps is apparently alleging that he did not receive the Department’s LOFs when they were issued on December 12, 2002. (See Pet’r V. Pet. at 2 (Kreps’ assertion that “[he] had to initiate contact with [the] Supervisor of Appeals to obtain the LO[Fs]”).) However, Kreps requested a rehearing with the Department on or about July 23, 2003 – therefore, the Court concludes that he must have received the LOFs prior to that date. (See Pet’r V. Pet. at Ex. I.) Furthermore, while the evidence does indicate that the Supervisor of Appeals reprinted a copy of the LOFs and mailed them to Kreps on August 7, 2003, the Department had already processed and denied Kreps’ July request for rehearing by that date. (See Pet’r V. Pet. at Ex. L & Ex. M.) Thus, the evidence does not support Kreps’ apparent contention that he did not receive the LOFs from the Department until August 7, 2003.
In short, Kreps’ petition does not explain why or how his petition should be considered timely filed. Taxpayers are presumed to know the law – by statute, Kreps was required to file his petition to this Court no later than June 12, 2003 (180 days after the 12/12/02 date the LOFs were issued by the Department). See A.I.C. § 6-8.1-5-1(g). See also Evansville Concrete Supply Co., Inc. v. Indiana Dep’t of State Revenue, 571 N.E.2d 1350, 1354 (Ind. Tax Ct. 1991) (citation omitted) (stating “all persons are charged with knowing their rights and remedies prescribed by statute”). Kreps relied on the assertions contained in his petition to oppose the Department’s motion to dismiss; that reliance resulted in dismissal because nothing in the petition demonstrated that Kreps had timely filed his petition. Kreps cannot now come to the Court expecting a different result.

Therefore, the Court DENIES Kreps’ motion to set aside the dismissal order of February 25, 2004.
SO ORDERED this 22nd day of July, 2004.

        Thomas G. Fisher, Judge
        Indiana Tax Court

Distribution :

B. Joseph Davis
Attorney at Law
400 E. Jackson St.
Muncie, IN 47305

Richard R. Murphy
Attorney at Law
928 Meridian Plaza
Anderson, Indiana 46016

Steve Carter
Attorney General of Indiana
By: John D. Snethen
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, Indiana 46204-2770



Footnote: Indiana Code § 6-8.1-5-1(g) provides that “the tax court does not have jurisdiction to hear an appeal that is filed more than one hundred eighty (180) days after the date on which the letter of finding is issued by the department.” Ind. Code Ann. § 6-8.1-5-1(g) (West 2003).

Footnote: Tax Court Rule 12 provides that “an opposing party may file a written memorandum of law or a statement of authority in response to the matters raised in any motion not later than 10 days from the date of service of the motion.” Ind. Tax Court Rule 12(C).

Footnote: Furthermore, the Court is confused as to why Kreps cited Trial Rule 60(B)(5), as that provision applies if the motion asserts, and proves, that the moving party was an infant or incompetent person at the time of the court’s action. See Ind. Trial Rule 60(B)(5).