ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Stephen Carter Stephen H. Rabe
Attorney General Richmond, Indiana
Andrew W. Swain ATTORNEYS FOR AMICUS CURIAE
Special Counsel TAXATION SECTION OF THE INDIANA
STATE BAR ASSOCIATION
John D. Snethen Larry J. Stroble
Amber Merlau St. Amour Randal J. Kaltenmark
Deputy Attorney Generals Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
TAX CONSULTANTS, INC.
Timothy J. Vrana
Columbus, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S10-0412-TA-504
WAYNE COUNTY PROPERTY TAX
ASSESSMENT BOARD OF APPEALS,
Appellant (Respondent below),
v.
UNITED ANCIENT ORDER OF DRUIDS-
GROVE #29,
Appellee (Petitioner below).
_________________________________
Appeal from the Indiana Tax Court, No. 49T10-0406-TA-25
The Honorable Thomas G. Fisher, Judge
_________________________________
On Petition for Interlocutory Appeal
_________________________________
May 18, 2006
Boehm, Justice.
We hold that Indiana Tax Court Rule 3 and the provisions of the Administrative Orders
and Procedures Act (“AOPA”) governing the timing for filing the agency record in appeals of
property tax assessments do not conflict. AOPA provides that filing of the record to permit judi-
cial review of an agency action is timely if, among other things, the court allows an extension of
the time provided by AOPA. We conclude that a filing in compliance with Tax Court Rule 3 is
within “further time allowed by the court” as AOPA contemplates.
Facts and Procedural Background
On May 28, 2004, the United Ancient Order of Druids-Grove #29 (“Druids”) appealed a
property tax assessment to the Indiana Tax Court. Druids’ petition contained a request that the
Indiana Board of Tax Review (“IBTR”) prepare the agency record in accordance with subsec-
tions (B)(7) and (E) of Tax Court Rule 3. The Wayne County Property Tax Assessment Board
of Appeals (“PTABOA”) moved to dismiss Druids’ appeal on the ground that the record was
filed outside the time provided by AOPA and therefore the Tax Court had no jurisdiction. Dru-
ids responded that Tax Rule 3(E) governed filing of the record and that the time to file under
Rule 3(E) had not yet expired. The Tax Court held that to the extent AOPA and Tax Court Rule
3(E) conflict, the Rule prevails and therefore the time for filing the agency record was governed
by Rule 3(E). See also Long v. Wayne County Prop. Tax Assessment Bd. of Appeals, 820
N.E.2d 190, 193 (Ind. Tax Ct. 2005), trans. denied (reaching the same conclusion). That order
was certified for interlocutory appeal and we granted PTABOA’s petition for review in an un-
published order.
Standard of Review
Indiana Code section 33-26-6-2(a) (2004) provides “If 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.” One “statutory requirement” is that appeals of property tax as-
sessments are now governed by AOPA. See also Miller Vill. Prop. Co. LLP v. Ind. Bd. of Tax
Review, 779 N.E.2d 986, 990 (Ind. Tax Ct. 2002), trans. denied (taxpayer’s failure to name cor-
rect party as required by AOPA deprived Tax Court of jurisdiction of the case). The timing of
filing the agency record implicates neither the subject matter jurisdiction of the Tax Court nor
personal jurisdiction over the parties. Rather, it is jurisdictional only in the sense that it is a
statutory prerequisite to the docketing of an appeal in the Tax Court. That issue is properly
2
raised by means of a motion under Rule 12(B)(1) for lack of jurisdiction or 12(B)(6) for failure
to state a claim, depending on whether the claimed defect is apparent on the face of the petition.
The standard of appellate review of rulings on motions to dismiss on jurisdictional
grounds depends on whether the trial court resolved disputed facts, and if so, whether the trial
court conducted an evidentiary hearing or ruled on a paper record. GKN Co. v. Magness, 744
N.E.2d 397, 401 (Ind. 2001). We review de novo a ruling on a motion to dismiss for lack of ju-
risdiction if the facts are not disputed or, as here, the court rules on a paper record. Id.
I. The Interplay of Tax Court Rule 3(E) and Indiana Code section 4-21.5-5-13
Effective January 1, 2002, the Indiana General Assembly substantially revised the Indi-
ana statutes governing appeal of property tax assessments. Among the revisions was a provision
that appeal to the Tax Court of a property tax assessment is now governed by AOPA. Ind. Code
§ 6-1.1-15-5(b). Indiana Tax Court Rule 3 was amended in 2001. As a result of these changes,
some have seen a conflict between the time required by AOPA and Tax Court Rule 3 for a party
initiating a property tax appeal to file the administrative record. This issue has arisen in a num-
ber of cases, and we granted review to resolve it. 1
All parties agree that the Tax Court’s power to hear this appeal turns on the interplay be-
tween the filing requirement of Tax Court Rule 3(E) and section 13 of AOPA. Tax Court Rule
3(E) provides:
Filing the record for judicial review. In original tax appeals . . . the petitioner
shall request the Indiana Board of Tax Review to prepare a certified copy of
the agency record within thirty (30) days after filing the petition . . . The peti-
tioner shall transmit a certified copy of the record to the Tax Court within
thirty (30) days after having received notification from the Indiana Board of
Tax Review that the record has been prepared.
Section 13 of AOPA provides in relevant part:
(a) Within thirty (30) days after the filing of the petition, or within further time al-
lowed by the court or by other law, the petitioner shall transmit to the court
1
See, e.g., Bedford Apartments v. Shawswick Twp. Assessor, 843 N.E.2d 78, 80 n.1 (Ind. Tax Ct. 2006);
Long, 820 N.E.2d at 193; Shelby St. Realty Corp. v. Perry Twp. Assessor, 2004 Ind. Tax LEXIS 32, *7
n.4 (Ind. Tax Ct. Apr. 26, 2004).
3
the original or a certified copy of the agency record for judicial review of the
agency action . . .
(b) . . . Failure to file the record within the time permitted by this subsection, in-
cluding any extension period ordered by the court, is cause for dismissal of the
petition for review by the court, on its own motion, or on petition of any party
of record to the proceeding.
I.C. § 4-21.5-5-13. The parties disagree as to whether the Rule and statute are compatible, and
those who find them consistent with each other disagree as to their meaning. Specifically,
PTABOA argues that Rule 3(E) and section 13 can be read harmoniously and require a record to
be filed within the thirty days following the filing of the petition. The Taxation Section of the
Indiana Bar Association, as amicus curiae, agrees that the Rule and the statute can be read har-
moniously, but contends that they permit filing thirty days after the IBTR gives notice that the
record is complete. Druids and amicus Tax Consultants argue that the Rule and statutory provi-
sion conflict and that the Rule trumps the statutory provision. Druids also argue in the alterna-
tive that even if the statutory provision governs, they are in compliance with it and the Tax Court
has jurisdiction.
PTABOA argues that conflict between the two can be avoided by reading the first sen-
tence of Rule 3(E) to require IBTR to prepare the record within thirty days of the petitioner’s fil-
ing of its petition and by reading section 13 to require the petitioner to file the record within that
time. PTABOA reaches this conclusion by reading “within thirty (30) days” in the first sentence
of Tax Court Rule 3(E) as applying to the action of IBTR and not the action of the petitioner.
We do not agree with this reading of Rule 3(E). By its terms Rule 3(E) requires the petitioner to
file the record within thirty days of receiving notice from IBTR that it is prepared, whenever that
might be. Nothing in the Rule requires IBTR to prepare the record within thirty days, and the
Rule cannot be reconciled with the statute by reading both to require a record to be filed within
thirty days after the IBTR rules.
Section 13(a) provides that filing of the agency record is timely if it occurs in one of three
ways: (1) within the initial thirty days following the filing of the petition for judicial review; (2)
“within further time allowed by the court;” or (3) within further time allowed by “other law.”
Druids filed the IBTR record in the Tax Court on October 8, approximately four months after
they filed their petition for review, and only then did Druids request the Tax Court to extend the
4
time for filing the record. All parties agree that both the record and the motion for more time
were filed more than thirty days after the petition for review. The Tax Court’s discretion to grant
extensions of time in an individual case is limited. It is well settled that a reviewing court may
grant a request for an extension under section 4-21.5-5-13 of AOPA only if the request is made
during the initial thirty days following the filing of the petition for review or within any previ-
ously granted extension. Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 813 N.E.2d
330, 333 (Ind. Ct. App. 2004); Clendening v. Ind. Family & Soc. Servs. Admin., 715 N.E.2d
903, 904 (Ind. Ct. App. 1999); Park v. Med. Licensing Bd., 656 N.E.2d 1176, 1179 (Ind. Ct.
App. 1995), trans. denied; Crowder v. Rockville Training Ctr., 631 N.E.2d 947, 948 (Ind. Ct.
App. 1994), trans. denied; Indianapolis Yellow Cab, Inc. v. Ind. Civil Rights Comm’n, 570
N.E.2d 940, 942-43 (Ind. Ct. App. 1991), trans. denied. Druids first moved for an extension of
time in which to file the agency record almost four months after they filed their petition for judi-
cial review. The Tax Court did not rule on the motion. We agree that this motion could not have
been granted if the time had already expired. However, as explained below, we do not agree that
the time had expired before Druids filed their record.
The Taxation Section of the Indiana Bar Association, as amicus curiae, argues that Rule
3(E) is “other law,” allowing additional time to file the record. This contention proceeds from
the generally valid premise that rules of this Court have the force and effect of law and are bind-
ing upon courts and parties. See, e.g., Eggers v. Wright, 253 Ind. 44, 47, 245 N.E.2d 331, 334
(Ind. 1969); State ex rel. Spelde v. Minker, 244 Ind. 421, 422, 193 N.E.2d 365, 365 (Ind. 1963);
McCrary v. State, 241 Ind. 518, 534, 173 N.E.2d 300, 307 (Ind. 1961). This Court is empowered
to adopt rules of procedure for all Indiana courts, including the Tax Court. See I.C. § 34-8-1-3
(“The supreme court has authority to adopt, amend, and rescind rules of court that govern and
control practice and procedure in all the courts of Indiana”). Although rules of court may be
“law” for many purposes, the definitions section of AOPA, Indiana Code section 4-21.5-1-7, de-
fines “law” as “the federal or state constitution, any federal or state statute, a rule of an agency,
or a federal regulation.” Rules of a court, including Rule 3(E), are not any of these, so we do not
agree that the “other law” provision accomplishes what the amicus argues.
Although we do not find the “other law” provision to encompass court rules, we also do
not believe that by its statutory definition of “other law,” the General Assembly intended to pre-
5
clude a court promulgated rule from providing time in addition to that afforded by AOPA.
AOPA provides a set of default procedural rules applicable to judicial review of a wide variety of
administrative actions. AOPA’s provision for “other law” in section 13 recognizes that there
may be a need to tailor the default rules to meet the need of a particular administrative agency.
Similarly, the statute expressly authorizes the reviewing court to extend its time limits. A filing
is timely if within the “further time allowed by the court.” We see no reason why “further time”
could not be “allowed” by rule applicable to categories of cases, given that it can be done by or-
der in individual cases.
The common purpose of both section 13 and Rule 3(E) is to ensure that property tax ap-
peals proceed in an efficient, speedy manner and to ensure that the Tax Court has access to the
record before rendering its decision. Rule 3(E) recognizes the reality that the sheer volume of
property tax appeals may make it impossible for IBTR to prepare a certified record within thirty
days of the filing of a petition, particularly because periodic property tax general reassessments
can trigger a large volume of concurrent appeals. Although a petitioner can request an extension
of time in which to file the agency record, Rule 3(E) provides a practical solution to the problem
of very high volume and peak loads triggered by reassessment. If, as a practical matter, more
time to procure the record will be required in the vast majority of cases, requiring the petitioner
to move the court for an extension of time would virtually always be needed. Placing the provi-
sion in a generally applicable rule avoids unnecessary work for the Tax Court and unneeded ex-
pense for the parties. In sum, a court rule providing for time in addition to that permitted by
AOPA is authorized by AOPA, and presents no conflict with the statute. A filing in compliance
with Tax Court Rule 3(E) is timely and confers Tax Court jurisdiction over the appeal.
II. Druids’ Compliance with Tax Rule 3(E)
The parties dispute whether Druids complied with Rule 3(E). The Rule requires the peti-
tioner to file the record within thirty days of receiving notification from IBTR that the record is
prepared. 2 PTABOA claims that IBTR notified Druids on July 19 that the record was prepared,
so the time for filing under Rule 3(E) expired on August 18, and therefore that Druids’ October 8
2
Rule 3(E) also requires the petitioner to request IBTR to prepare the record within the thirty days imme-
diately following the filing of the petition for judicial review. The parties agree that Druids requested
IBTR to prepare the record within this thirty day period.
6
filing was not timely under Rule 3(E). In support of its argument, PTABOA submitted the affi-
davit of Nickita Brewer, the administrative assistant at IBTR. Ms. Brewer states that she sent an
invoice to Druids’ attorney on July 19. The invoice, titled “Invoice for the Preparation of the
Administrative Record,” states “This invoice represents a breakdown of charges to be paid in the
event a record is requested. Charges will be due up[on] receipt of the record if a record is re-
quested.” The invoice reflects that the cost of a transcript of the agency proceedings is $175.90,
that the total balance due from Druids is $125.90, and that Druids have a $50 credit for a check
received by IBTR from Druids on July 7. At the hearing on PTABOA’s motion to dismiss, Dru-
ids stated that they never received the invoice.
Without resolving whether or not Druids received the invoice, the Tax Court ruled as a
matter of law that the invoice was insufficient to provide the notice contemplated by Rule 3(E)
because it did not state that the record was prepared. PTABOA cites the Tax Court’s earlier de-
cision in Keag Family Limited Partnership v. Indiana Board of Tax Review, 2004 Ind. Tax
LEXIS 62, *3-4 (Ind. Tax Ct. July 26, 2004) for the proposition that a billing invoice constitutes
adequate notice under Rule 3(E). But in Keag, the package IBTR mailed to the taxpayer con-
tained not only a billing invoice, but a copy of the prepared record. Id. at *4. IBTR published a
policy document, effective August 24, 2004, which outlines the procedures IBTR will follow
when an agency record is requested for purposes of initiating appeal of a property tax assess-
ment. It provides that the petitioner must submit $50 with the request and that the $50 payment
will be deducted from the balance due when the agency record is delivered to the petitioner. It
also provides that “upon completion of the agency record the [petitioner] will be notified as to
when the agency record may be picked up and the total balance due for its preparation. The bal-
ance due must be paid to the IBTR prior to the agency record being released to the [petitioner].”
This procedure seems sufficient to provide adequate notice to petitioners under Rule 3(E). How-
ever, in this case, IBTR did not follow this policy. The invoice did not tell Druids that the record
was complete, did not include the completed record, and did not provide a date on which the re-
cord could be picked up. Accordingly, as the Tax Court ruled, Druids first received notice that
the record was complete in the course of a September 27 hearing on PTABOA’s motion to dis-
miss. Druids complied with Rule 3(E) by filing the prepared record less than thirty days later, on
October 8.
7
Conclusion
The order of the Tax Court is affirmed. This case is remanded for resolution on the mer-
its.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.
8