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08/18/87 STATE BOARD TAX COMMISSIONERS v. LESEA

Filed: August 18, 1987.

STATE BOARD OF TAX COMMISSIONERS, APPELLANT,
v.
LESEA BROADCASTING CORPORATION, APPELLEE



APPEAL FROM THE INDIANA TAX COURT, The Honorable Thomas G. Fisher, Judge, Cause No. 29T05-8612-TA-00057.

Givan, J., and Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan

GIVAN, J.

The appellant in this case filed a "Petition For Instructions For Taking An Interlocutory Appeal From The Indiana Tax Court's Denial Of A Motion To Dismiss." The petition asks that this Court instruct the parties as to the proper procedures to be followed in order to properly appeal an interlocutory order of the Tax Court.

On the 21st day of April 1987, this Court accepted jurisdiction of this appeal, previously certified under A.R. 4(B)(6) by the Tax Court. Appellant was directed to file a praecipe in the Tax Court to obtain the record of proceedings, if this had not already been done, and was further ordered to file an assignment of error and the record of proceedings, pursuant to A.R. 3(B) and A.R. 7.2(A)(1)(b). It was further ordered that the briefs be filed in accordance with A.R. 8.1(B). The parties have complied with the Court's direction and have filed their respective briefs.

The Honorable Thomas G. Fisher, Judge of the Indiana Tax Court, issued the following order in this cause:

"The Respondent, State Board of Tax Commissioners, having heretofore filed its Motion to Dismiss, and the Court being duly advised now finds:

The issue before this Court is whether a notice of intent to appeal is timely filed under IC 6-1.1-15-5(c)(1) (Supp. 1986) when it is mailed within the prescribed time period but is not actually received by the State Board until after expiration of the statutory time period.

Petitioner LeSea Broadcasting Corp. (taxpayer) operates religious television stations. The taxpayer's claim for exemption under IC 6-1.1-10-16(a) was denied by Respondent State Board of Tax Commissioners (Board) and notice of same was given on November 7, 1986. Taxpayer made timely filing of the complaint in the Tax Court and made timely service upon the Attorney General with a copy of the complaint. IC 6-1.1-15-5(c)(2), (3). Taxpayer was unable to deliver the notice of appeal to the Board on Monday, December 22, (the 45th day) before the office closed. The taxpayer deposited the notice in the mail at 6:00 p.m. on December 22. The Board received the notice Wednesday, December 24. Consequently, the Board filed a motion to dismiss for lack of jurisdiction.

IC 6-1.1-15-5 provides that the notice of intent to appeal must be filed with the Board within forty-five days after the Board gives the taxpayer notice of the final determination. IC 6-1.1-15-5(c)(1), (d)(1). A line of Indiana cases provides authority for the Board's position. Clary v. National Friction Products, Inc. (1972), 259 Ind. 581, 290 N.E.2d 53; Ball Stores, Inc. v. State Bd. of Tax Commrs. (1974), 262 Ind. 386, 316 N.E.2d 674; Weatherhead v. State Bd. of Tax Commrs. (1972), 151 Ind. App. 680, 281 N.E.2d 547; Margrat, Inc. v. Indiana State Bd. of Tax Commrs. (1982), Ind.App., 448 N.E.2d 684. However, the legislature has made significant changes in the tax laws since Margrat, chief among those being the creation of the Indiana Tax Court. In view of these changes, a reexamination of the aforementioned authorities is called for.

The authorities supporting the Board's argument begin with Weatherhead Co. v. State Board of Tax Commissioners (1972), 151 Ind. App. 680, 281 N.E.2d 547. In that case, the trial court sustained the Board's motion to dismiss for lack of jurisdiction because the Board did not receive notice of appeal by the thirtieth day after the board had mailed notice to the taxpayer.[Footnote 1] The Court of Appeals first held that noncompliance with the filing requirement would defeat the jurisdiction of the trial court to review the case. Id. at 549, citing Raab v. Ind. State Bd. of Tax Commrs. (1968), 143 Ind. App. 139, 238 N.E.2d 697. After consideration of authorities from several other jurisdictions, the court stated that 'absent contrary statutory provision the word "filed" simply means delivery of the document to the proper officer and receipt of it by him.' Id. at 551. The court also held that the Indiana Rules of Civil Procedure were inapplicable because they did not take effect until January 1, 1970, five years after the taxpayer had initiated the appeal. Finally, the court held that this construction did not violate the constitutional guarantees of due process and equal protection and the statute could not be struck down as unconstitutionally vague. Id. at 552.

The Supreme Court thereafter had occasion to comment on the applicability of the Trial Rules to administrative proceedings in Clary v. National Friction Products, Inc. (1972), 259 Ind. 581, 290 N.E.2d 53. Here the Supreme Court held that where claimants failed to perfect their appeals from the Industrial Board within thirty days, the Court of Appeals lacked jurisdiction to review their cases. The statute at issue provided in part:

An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency ...


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