MEMORANDUM DECISION
Pursuant to Indiana Tax Court Rule 17, this
Memorandum Decision shall not be regarded
as precedent or cited before any court except Jul 17 2015, 1:11 pm
for the purpose of establishing the defense of
res judicata, collateral estoppel, or the law of
the case.
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PETITIONER APPEARING PRO SE: ATTORNEYS FOR RESPONDENT:
RICHARD D. FOSTER GREGORY F. ZOELLER
Branchville, IN ATTORNEY GENERAL OF INDIANA
KENNETH E. BIGGINS
JOHN P. LOWERY
DEPUTY ATTORNEYS GENERAL
Indianapolis, IN
_____________________________________________________________________
IN THE
INDIANA TAX COURT
_____________________________________________________________________
RICHARD D. FOSTER, )
)
Petitioner, )
)
v. ) Cause No. 49T10-1504-TA-00017
)
INDIANA DEPARTMENT OF STATE )
REVENUE, )
)
Respondent. )
______________________________________________________________________
ORDER ON RESPONDENT’S MOTION TO DISMISS
July 17, 2015
WENTWORTH, J.
Richard D. Foster filed an appeal with this Court, claiming that as a result of his
pleading guilty to possession of marijuana, the Indiana Department of State Revenue
illegally assessed Controlled Substance Excise Tax (CSET) and seized the titles to his
vehicles. The Department has moved to dismiss Foster’s appeal alleging that the Court
lacks subject matter jurisdiction. The Court grants the Department’s motion.
FACTS & PROCEDURAL BACKGROUND
On July 20, 1993, Foster was charged with possession of marijuana with intent to
deliver and with violating the controlled substance excise tax provision, Indiana Code §
6-7-3-11. (See Resp’t Mot. Dismiss, Ex 1.) On July 22, 1993, the Department issued
Foster an assessment of CSET, penalties, and interest. (Resp’t Mot. Dismiss, Ex 2. at
5-6.) In accordance with a plea negotiation agreement, Foster pled guilty and was
sentenced on July 25, 1994.
On April 22, 2015, Foster filed an appeal with this Court. In his Complaint, Foster
1) requested that the Department refund all of his tax refunds that had been applied
toward the CSET assessment; 2) sought payment for all of his vehicles that he lost due
to the Department’s seizure of their titles; and 3) sought compensatory and punitive
damages in the amount of $100,000. (Pet’r Prisoner Civil Compl. at 2.) Foster’s
request for relief was based on, among other things, the fact that his plea agreement did
not include the assessment of CSET. (See Pet’r Letter Supp. Mot. J. at 1.)
On June 25, 2015, the Department filed a Motion to Dismiss, asserting the Court
lacked subject matter jurisdiction to hear Foster’s appeal. Additional facts will be
supplied as necessary.
STANDARD OF REVIEW
When this Court rules on a motion to dismiss for lack of subject matter
jurisdiction, it may consider the petition, the motion, and any supporting affidavits or
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evidence. Garwood v. Indiana Dep’t of State Revenue, 998 N.E.2d 314, 317 (Ind. Tax
Ct. 2013) (citations omitted). Furthermore, the Court may weigh the evidence to
determine the existence of requisite jurisdictional facts, resolve factual disputes, and
devise procedures to ferret out the facts pertinent to jurisdiction. Id.
LAW & ANALYSIS
Subject matter jurisdiction, the power of a court to hear and determine a
particular class of cases, can be conferred upon a court only by the Indiana Constitution
or by statute. See K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006); State v. Sproles, 672
N.E.2d 1353, 1356 (Ind. 1996). The Indiana Tax Court has the power to hear and
determine only those cases that are “original tax appeals,” i.e., appeals that both arise
under the tax laws of Indiana and are initial appeals of a final determination of the
Department. See IND. CODE §§ 33-26-3-1, -3 (2015).
A case arises under Indiana’s tax laws “if (1) ‘an Indiana tax statute creates the
right of action,’ or (2) ‘the case principally involves collection of a tax or defenses to that
collection.’” State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d 1148, 1152 (Ind.
2011) (quoting Sproles, 672 N.E.2d at 1357). Here, Foster’s claim is that the
Department improperly collected CSET; accordingly, the case arises under the tax laws
of Indiana.
For the Court to have subject matter jurisdiction, the case must also be an initial
appeal from a final determination of the Department. I.C. § 33-26-3-1(1). A final
determination “is an order that determines the rights of, or imposes obligations on, the
parties as a consummation of the administrative process.” See State Bd. of Tax
Comm’rs v. Ispat Inland, Inc., 784 N.E.2d 477, 481 (Ind. 2003). As the Indiana
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Supreme Court has explained,
[a] taxpayer receives a final determination in one of two ways. The
taxpayer can pay the tax, request a refund, and sue in the Tax Court
if the request is denied. Alternatively, the taxpayer can protest the
listed tax at the assessment stage and appeal to the Tax Court from
a letter of findings denying the protest.
Sproles, 672 N.E.2d at 1357 (citations omitted).
The evidence presented in both Foster’s Complaint and the Department’s Motion
to Dismiss with supporting exhibits establishes that Foster neither timely filed a protest
with the Department after it issued the CSET assessment, penalties, and interest on
July 22, 1993, nor timely filed a Claim for Refund with the Department of the money it
applied to his liabilities. See 45 IND. ADMIN. CODE 15-5-8 (2015) (see
http://www.in.gov/legislative/iac/) (requiring a taxpayer to file a written protest 20 days
from the date a CSET assessment or jeopardy assessment is made); IND. CODE § 6-8.1-
9-1(a) (2015) (requiring a taxpayer to file a claim for refund with the Department within 3
years after the latter of the due date of the return or the date of payment).
Consequently, there is no evidence that the Department issued a Letter of Findings, a
Memorandum of Decision, or an Order denying a refund. Accordingly, Foster does not
appeal from a final determination and the Court lacks subject matter jurisdiction to hear
and determine his appeal.
ORDER
The Court, having found that Foster has not taken his appeal from a final
determination of the Department, hereby GRANTS the Department’s Motion to Dismiss.
SO ORDERED this 17th day of July, 2015.
__________________________
Martha Blood Wentworth, Judge
Indiana Tax Court
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Distribution:
Richard D. Foster, Kenneth E. Biggins, John P. Lowrey
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