State Board of Tax Commissioners v. Montgomery

ATTORNEYS FOR APPELLANTS

Jeffrey A. Modisett
Attorney General of Indiana

Jon Laramore
Deputy Attorney General
Indianapolis, Indiana


ATTORNEYS FOR APPELLEES

Peter L. Benjamin
Merrillville, Indiana

Gerald M. Bishop
Merrillville, Indiana

John S. Dull
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

STATE BOARD OF TAX                )
COMMISSIONERS, et al.,            )
                                  )
      Appellants (Respondents Below),   )
                                  )     Indiana Supreme Court
            v.                    )     Cause No. 45S00-9906-TA-340
                                  )
TROY MONTGOMERY, et al.,          )
                                  )
      Appellees (Petitioners Below).    )
__________________________________________________________________

                      APPEAL FROM THE INDIANA TAX COURT
                    The Honorable Thomas G. Fisher, Judge
                         Cause No. 45T10-9807-TA-84
__________________________________________________________________


                    ON PETITION FOR INTERLOCUTORY APPEAL

__________________________________________________________________

                                June 27, 2000

BOEHM, Justice.

      The petitioners in this case are Lake County, on its own behalf and on
behalf of property owners in that  county,  the  Lake  County  Council,  the
Board of Commissioners of Lake County, and  several  individual  members  of
the Council or the Board who seek to sue in their  official  capacities  and
as taxpayers owning property in Lake County.  All petitioners  brought  suit
in  the  Indiana  Tax  Court  against  the  Indiana  State  Board   of   Tax
Commissioners, seeking a declaratory judgment that the Health Care  for  the
Indigent program (“HCI”) violates Article  10,  Section  1  and  Article  1,
Section 23 of the Indiana Constitution.  The Tax  Court  held  that  it  had
subject  matter  jurisdiction,  despite  the  State’s  contention  that  the
taxpayers had not exhausted their administrative remedies.  That  issue  was
certified for  interlocutory  review,  and  we  granted  the  State  Board’s
Petition for  Review  to  address  whether  under  these  circumstances  the
taxpayers must first exhaust administrative  remedies.   We  hold  that  the
taxpayers must first exhaust  the  administrative  remedy  of  requesting  a
refund,  and  that  the  Tax  Court  is  without  jurisdiction  because   no
petitioner seeks review of a final order of the State Board.

                      Factual and Procedural Background

      HCI was first enacted in 1986 and recodified in 1992 at Indiana Code §
12-16-2-1 to 12-16-16-3.  It is designed to provide emergency  medical  care
to indigent patients who do  not  qualify  for  Medicaid  benefits.   Before
1986, the counties bore all responsibility for indigent  health  care.   HCI
transferred the administration of indigent health  care  to  the  State  and
imposed an “HCI tax levy” to fund it.  The State Board of Tax  Commissioners
is required to “review each county’s property tax levy  under  this  chapter
and . . . enforce the requirements of this  chapter  with  respect  to  that
levy.”  Ind. Code § 12-16-14-4 (1998).  The levy is imposed  as  a  property
tax, but unlike the general property tax levy,[1]  the  amount  of  the  HCI
levy  for  each  county  is  statutorily  prescribed  as  last  year’s  levy
increased by the percentage of growth in assessed value of all  property  in
the state.[2]  Certain  statutory  limits  on  property  tax  rates  may  be
exceeded “[t]o meet the requirements of the county  hospital  care  for  the
indigent fund.”  Id. § 6-1.1-18-3(7).
      The Act provides for the establishment of an HCI fund in each  county.
 Each county fund’s balance is transferred monthly to  a  state  fund.   The
initial HCI levy for each county was set at the average over 1984-86 of  its
indigent hospital care expenditures, with certain adjustments  not  relevant
here.
      The petitioners contend that the statutory formula for setting the HCI
tax levy has resulted in a wide disparity between the contribution  of  Lake
County residents to the HCI state  fund  and  Lake  County’s  percentage  of
statewide  assessed  value.   According  to  petitioners,  even  though  the
assessed value of property in Lake County is 6.5% of the statewide  assessed
value, 37% of the HCI tax levy is imposed on Lake County.
      Two taxpayers who are parties to  this  action,  Troy  Montgomery  and
Frances DuPey,[3] directed a letter to the State Board in which  they  posed
four questions:
      (1) Is the State Tax Board of  Commissioners  willing  to  voluntarily
      adjust and revise the current funding formula for the HCI tax levy  to
      assure that Lake County health care  providers  substantially  receive
      the benefit of tax dollars that are paid in?
      (2) If the answer to question number one is in the affirmative, please
      further state the mechanism and timetable regarding same.
      (3) Please itemize where the distribution  of  the  remaining  sum  of
      approximately $42,000,000.00 paid in by Lake County is allocated?
      (4) On behalf of Lake County taxpayers, we are requesting a refund  of
      the HCI overpayment for the past three  (3)  years.   Members  of  the
      County council have filed timely objections over the  years  regarding
      our inflated HCI tax levy.  Please advise us regarding  your  position
      to voluntarily repay to Lake County the amount of overpayment into the
      HCI fund for the past three (3) years.


      The Chairman of the State Board, Frank J. Sabatine, was sympathetic to
the concerns expressed by Montgomery  and  DuPey,  but  he  responded  that,
“there is nothing the Board can do to voluntarily adjust the amount of  Lake
County’s HCI property tax levy.”  He described the  State  Board’s  role  as
“ministerial” in nature, and told Montgomery and DuPey that  the  Board  had
no discretion either to adjust the formula for assessing the HCI  tax  levy,
or to order a refund of taxes for the alleged overpayment.
      Sabatine expressed  the  State  Board’s  willingness  to  “review  the
funding and reimbursement formulas[4] to determine  if  there  are  ways  to
improve the HCI program.”  He  also  directed  a  letter  to  the  Citizens’
Commission on Taxes, asking it to consider Lake  County’s  concerns  in  its
recommendations to the General Assembly on proposals to remove the  HCI  tax
levy from the property tax.  Sabatine  explained  to  Montgomery  and  DuPey
that some of the apparent inequity of the HCI program is counterbalanced  by
its  interaction  with  Medicaid.[5]    He  concluded  that  any   “concerns
regarding inequities  in  the  current  levy  calculation  .  .  .  must  be
addressed to the General Assembly and not to this agency.”[6]
      The petitioners, along with the  Lake  County  Council  and  Board  of
Commissioners, then brought suit in the Indiana Tax Court against the  State
Board.   They  allege  that  the  HCI  tax   levy   violates   the   Indiana
Constitution, specifically,  Article  1,  Section  23,  the  Privileges  and
Immunities Clause, and Article 10, Section 1, which provides for  a  uniform
and  equal  rate  of  property  assessment  and  taxation.   They  sought  a
declaration  that  the  formula   for   calculating   the   tax   levy   was
unconstitutional.  They contended that jurisdiction of  the  Tax  Court  was
conferred by the Sabatine letter, which constituted a “final  determination”
within the meaning of the Tax Court’s  jurisdictional  statute.   The  State
Board responded with a motion to dismiss, contending that  the  governmental
entities lacked standing and the taxpayers were barred by  the  doctrine  of
exhaustion of remedies because they had neither objected  to  the  levy  nor
claimed a refund pursuant to procedures set forth in the tax code.
      The Tax Court concluded that the Sabatine letter did not constitute  a
final   determination   conferring   subject   matter   jurisdiction,    but
nevertheless concluded that the  claim  was  proper  because  administrative
remedies for challenging the HCI levy  were  inadequate  and  therefore  the
parties were excused from pursuing them. See Lake County  Council  v.  State
Bd. of Tax Comm’rs, 706 N.E.2d 270, 275-77 (Ind. Tax 1999).  The  Tax  Court
first held that the taxpayers’ ability to object to  the  tax  levy  was  an
insufficient remedy because an objection could be filed only by a  group  of
ten taxpayers, and the adjudication of a constitutional claim could  not  be
made to depend on agreement by nine others to bring the claim.  See  id.  at
275-76.  The Tax Court viewed the option of filing a claim for a  refund  as
“more promising,” but it nevertheless concluded that the refund process  was
also impractical.  If a refund were ordered as to amounts remitted from  the
county fund to the State, the Tax Court surmised, it would have to  be  paid
out of the county coffers, even though the ultimate recipient of  the  funds
from the county tax was the State.  See id. at 277-78.  The Tax  Court  then
noted the absence of any mention of a refund process in the HCI statute  and
concluded that the legislature did not intend the county to be  commandeered
into granting refunds of money it had forwarded to the State.   In  the  Tax
Court’s  view,  the  legislature  “could  not  have  intended”  the   refund
provisions of the property tax to apply to the HCI tax levy.   Id.  at  277.
The Tax Court then concluded that jurisdiction properly  lay  with  the  Tax
Court.  See id. at 278-79.  It also ruled that  the  governmental  entities,
with the exception of Lake County itself, had no  standing  to  contest  the
constitutionality of the HCI levy.  See id. at 279-81.
      Lake County was deemed a proper  party  to  the  declaratory  judgment
action because it  had  a  cognizable  interest  in  the  lawsuit.   If  the
petitioners were successful, the county would be required both to  fund  and
also to administer the refund process.  See id. at 281.
       The State Board sought rehearing, arguing that  because  Lake  County
could seek reimbursement from the State for any refunds it would  be  forced
to pay, the taxpayers’ remedies were adequate and exhaustion should  not  be
excused. [7]  In a second opinion,[8] the Tax Court again concluded that  it
had  subject  matter  jurisdiction  and  that  petitioners’   administrative
remedies were inadequate and exhaustion  was  excused.   See  Montgomery  v.
State Bd. of Tax Comm’rs, 708 N.E.2d 936 (Ind. Tax  1999).   The  Tax  Court
also concluded that reimbursement was too  speculative.   See  id.  at  938.
The Tax Court subsequently certified its opinions for  interlocutory  review
by this Court, and this appeal followed.
      The State Board argues that: (1) the taxpayers failed to exhaust their
administrative remedies  and  they  are  not  excused  from  pursuing  these
remedies on grounds of futility; (2) even if exhaustion were  not  required,
the taxpayers still had no  final  determination  by  the  State  Board  and
therefore jurisdiction was improper in Tax Court; and (3) Lake County  lacks
standing to assert this claim against the State Board.
                  I. Exhaustion of Administrative Remedies
      In State v. Sproles, as here, the taxpayer sought a  declaration  that
the tax at issue was unconstitutional.  See 672 N.E.2d 1353,  1354-55  (Ind.
1996).   Sproles  held  that  the  taxpayer  there  could   not   circumvent
administrative  remedies  and  challenge  the  constitutionality  of  a  tax
directly in court, even if the administrative agency to which  the  taxpayer
appeals is without the power to grant the exact remedy the  taxpayer  seeks.
See id. at 1358-61.  Rather, a taxpayer must  first  exhaust  administrative
remedies.  See id.
      The reasons for requiring a party to seek administrative remedies  are
well established.  Premature litigation may be avoided, an  adequate  record
for judicial review may be compiled, and  agencies  retain  the  opportunity
and autonomy to correct their own errors.  See Austin  Lakes  Joint  Venture
v. Avon Utils., Inc., 648 N.E.2d 641, 644 (Ind. 1995).  Even if  the  ground
of complaint is the unconstitutionality of the statute, which may be  beyond
the agency’s power to resolve, exhaustion  may  still  be  required  because
“administrative action  may  resolve  the  case  on  other  grounds  without
confronting broader legal issues.”   Sproles, 672 N.E.2d at 1358.
      A. Objecting to the Tax Levy
      The State Board points to two administrative remedies that it contends
must be pursued before the taxpayers may bring  suit.   First,  pursuant  to
Indiana Code § 6-1.1-17-5(b), “Ten (10) or more taxpayers may  object  to  a
budget, tax rate, or tax levy of a political subdivision . . . by filing  an
objection petition with the proper officers  of  the  political  subdivision
not more than seven (7) days after the hearing.”  Under Indiana  Code  §  6-
1.1-17-3, a political subdivision is  required  to  hold  a  public  hearing
after it has formulated its estimated budget.  If an objection  petition  is
subsequently filed, then the political  subdivision  must,  along  with  its
budget, adopt a finding regarding the petition.[9]  This  provision  appears
in the  general  property  tax  statutes.   It  is  not,  in  our  view,  an
administrative remedy  required  to  be  exhausted  before  a  taxpayer  may
challenge an  unlawfully  collected  tax.   Theoretically,  each  property’s
valuation and every amount budgeted affects  the  levy  of  each  “political
subdivision.”  The effect of a requirement that each taxpayer who wishes  to
challenge, for example, the assessment of his property, must object  to  the
budget or levy would be to cause a large volume  of  essentially  pro  forma
objections to no practical purpose.  This could not have been the intent  of
the legislature.  The tax code otherwise allows petitions  for  reassessment
of real property.  See Ind. Code  §  6-1.1-4-5  (1998).   In  addition,  the
State Board has the discretion to revise an assessment of all or  a  portion
of the property located in this state “[i]n order to  maintain  a  just  and
equitable valuation of real  property.”   Id.  §  6-1.1-4-9.   There  is  no
comparable provision for the property owner  who  wishes  to  challenge  the
assessment of the HCI levy, and even if  a  property  owner  challenges  the
levy with nine other taxpayers, the formula  for  calculating  the  HCI  tax
levy is statutorily prescribed, and therefore the State Board  cannot  alter
it.
      B. Claim for Refund
      The second remedy the State Board identifies is a claim for a  refund.
Pursuant to Indiana Code § 6-1.1-26-1, a  taxpayer  may  file  a  claim  for
refund, which, if denied, constitutes a final  determination  reviewable  by
the Tax Court.[10]  The petitioners correctly point out  that  there  is  no
statute authorizing the State Board to order a refund,  even  if  it  should
determine, pursuant to Ind.  Code  §  6-1.1-26-1(4)(ii),  that  the  tax  is
“illegal” as a matter of law.   In  that  respect,  they  are  in  the  same
position as the taxpayer  in  Sproles,  who  protested  that  exhaustion  of
remedies was not required because the  agency  could  not  declare  its  own
statute  unconstitutional.   See  Sproles,   672   N.E.2d   at   1353.    We
nevertheless held that exhaustion was required.  The  Tax  Court  recognized
this point, but  nonetheless  found  the  claim  for  a  refund  unavailable
because the legislature “could not have intended” that the refund  procedure
of Ind. Code § 6-1.1-26-5 apply.  See Lake County  Council,  706  N.E.2d  at
278.  For the reasons the  Tax  Court  identified  in  support  of  its  own
jurisdiction, however, one reason to require that procedure is to force  the
dispute into a channel that leads ultimately to the  Tax  Court.   This,  as
noted in Sproles, avoids the problem of multiple conflicting  litigation  on
a matter as complex and critical to state government as the  validity  of  a
tax.  This also provides for the legal infrastructure to  process  the  case
in an orderly manner, including timetables for decision.
      The Tax Court rejected this contention on the ground that  the  County
must pay the refund, and there  is  no  explicit  provision  under  the  HCI
statute for the State to reimburse the  County  for  refunds  to  taxpayers.
This result would be, the Tax  Court  pointed  out,  highly  problematic  in
terms of fairness and perhaps also  legality.   For  that  reason,  the  Tax
Court concluded that the legislature  did  not  consider  the  procedure  to
obtain a refund of the HCI tax unlawfully collected and therefore there  was
none available.
      The State Board points out, however, that Ind.  Code  §  6-1.1-27-6(b)
provides for repayment  by  the  State  of  tax  overpayments,  and  applies
generally to all taxes. It therefore provides a workable mechanism  for  the
county to recover from the State for  any  required  taxpayer  refunds.   It
thereby avoids the difficulties the Tax Court identified in reliance on  the
refund procedure as a remedy for unlawfully collected HCI taxes.  In  short,
a claim for refund may  be  presented  and,  if  refused,  will  permit  the
taxpayer  petitioners   to   proceed   to   the   Tax   Court   with   their
contentions.[11]
                    II. The Jurisdiction of the Tax Court
      The Tax Court identified a number of reasons why in its view this case
should be presented directly to the Tax Court, notwithstanding  the  absence
of any  specific  grant  of  jurisdiction.   In  general,  these  track  the
considerations  outlined  in  Sproles  that  favor  concentration   of   tax
litigation in one forum with expertise and avoiding inconsistent results  on
issues of significance to financing state and  local  government  statewide.
The sound policy reasons supporting  the  Tax  Court’s  direct  jurisdiction
also argue in  favor  of  requiring  exhaustion  of  the  refund  procedure,
because that process ultimately brings the case to the Tax  Court.   If  the
legislature wishes to confer original  jurisdiction  on  the  Tax  Court  to
entertain claims of unconstitutional taxation, it is of course  free  to  do
so.  The current statutory framework limits  access  to  the  Tax  Court  to
specified procedural channels.  For the reasons discussed in Sproles, it  is
not irrational to require plaintiffs who wish to present  such  a  claim  to
proceed through the administrative apparatus the legislature has set  up  to
deal with tax disputes, even if the ultimate  constitutional  issue  may  be
resolved only at the Tax Court stage.   That  requirement  assures  that  an
adequate record is developed and  that  nonconstitutional  issues  that  may
moot the constitutional challenge will be  considered.   The  advantages  of
consolidating the litigation in a forum with  expertise  are  retained.   If
the cost in time and effort imposed by this  procedure  is  too  great,  the
remedy lies with the General Assembly.
      Finally, the Tax Court held that Lake County, but not the  other  non-
taxpayer petitioners, had standing to pursue this claim.   Because  we  have
concluded that the tax court has jurisdiction only to the extent granted  by
statute, the claims of Lake County and the other governmental  entities  and
officials must also be dismissed.  None of these petitioners  sought  review
of an order of  the  State  Board  or  otherwise  meets  the  jurisdictional
requirements of the Tax Court.  Thus, we need not address whether they  have
standing to pursue this claim.
                                 Conclusion
      We reverse the judgment of the Tax Court and remand with direction  to
dismiss the petitioners’ claim for  declaratory  relief  against  the  State
Board of Tax Commissioners.

      SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.







-----------------------
[1]  “Levy” is a term used to describe the aggregate dollar amount of
property taxes imposed to fund a given operation of local government.  The
levies imposed under the general property tax are subject to review by the
State Board.  See Ind. Code §§ 6-1.1-17-1 to 20 (1998).
[2] This description is not precisely correct, but is adequate for  purposes
of this opinion and is hopefully more easily understood than  the  statutory
formulation:
      Each county shall impose a hospital care for the indigent property tax
      levy equal to the product of:
      (1) the hospital care for the indigent property tax levy  imposed  for
      taxes first due and payable in the preceding year; multiplied by
      (2) the statewide average assessed value growth  quotient,  using  all
      the county assessed value growth quotients determined under IC  6-1.1-
      18.5-2 for the year in which the tax levy under this section  will  be
      first due and payable.
Ind. Code § 12-16-14-3 (1998).
[3]  Montgomery is a member of the Lake County Council and DuPey is a
member of the Lake County Board of Commissioners.
[4]  Counties receive money back from the HCI state fund to reimburse them
for the cost of indigent care.
[5]  Sabatine emphasized that the HCI program and Medicaid funds are
interrelated.  The State Board makes the same point in its Brief to this
Court.  According to the Board, HCI funds have been used to leverage
federal Medicaid funds, a significant portion of which go to Lake County.
Citing Kerr v. Perry School Township, 162 Ind. 310, 70 N.E. 246 (1904),
petitioners respond that the relationship between the HCI levy and Medicaid
is irrelevant because their constitutional claims are based on provisions
dealing with the assessment of taxes that do not relate one way or the
other to benefits received from tax-supported programs.
[6]  Sabatine reiterated in the letter to the Chairman of the Citizens’
Commission on Taxes that “the HCI tax levy formula is mandated by statute,
so there is no action the Board can take at this time.”
[7]  The State Board argued that the County could seek reimbursement from
the State pursuant to Indiana Code § 6-1.1-27-6(b), which provides for
refunds from the state treasurer for “improper or erroneous payments” by a
county, and also pursuant to Indiana Code § 6-1.1-26-5(b): “[T]he county
auditor shall deduct the amount refunded from the gross tax collections of
the taxing units for which the refunded taxes were originally paid and
shall pay the amount so deducted into the general fund of the county.”
[8] The Tax Court issued its original opinion on January 19, 1999, see Lake
County, 706 N.E.2d at 270, and granted reconsideration in view of our
intervening modification of State Board of Tax Commissioners v. Mixmill
Manufacturing Co., 702 N.E.2d 701 (Ind. 1998), as modified Feb. 5, 1999.
See Montgomery, 708 N.E.2d at 936.
[9]   The Indiana Code provides for revision or reduction of a political
subdivision’s budget by the County Board of Tax Adjustment in order to:
“limit the tax rate to the maximum amount permitted under IC 1971, 6-1.1-18
[Limitations on Property Tax Rates and Appropriations]” and “limit the
budget to the amount of revenue to be available in the ensuing budget year
for the political subdivision.” Ind. Code § 6-1.1-17-6 (1998).  The County
Board of Tax Adjustment is also directed to make recommendations for
revision of the budget to the State Board of Tax Commissioners if the
County Board determines “that the maximum aggregate tax rate permitted
within a political subdivision . . . is inadequate,”  Id. § 6-1.1-17-8, or
if “the aggregate tax rate within a political subdivision, as approved or
modified by the county board of tax adjustment, exceeds the maximum
aggregate tax rate prescribed . . . .”  Id. § 6-1.1-17-10 (1998).
      Under Indiana Code § 6-1.1-17-11, the budget, tax rate, or tax levy
is final unless “(2) the action of the county board is subject to review by
the state board of tax commissioners under section 8 or section 10 of this
chapter; or (3) an appeal to the state board of tax commissioners is
initiated with respect to the budget, tax rate, or tax levy.”
[10]   A claim for a refund pursuant to Ind. Code § 6-1.1-26-1 must be:
      (1) filed with the auditor of the county in which the taxes were
      originally paid;
      (2) filed within three (3) years after the taxes were first due;
      (3) filed on the form prescribed by the state board of accounts and
      approved by the state board of tax commissioners; and based upon one
      (1) of the following grounds:
       . . .
      (ii) The taxes, as a matter of law, were illegal.
      . . . .



[11] Subsection 6(a) also provides for deduction of refunds for amounts
paid.  That remedy may or may not be adequate depending on the timing and
amounts of the refund compared to subsequent amounts due.