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Foster v. Indiana Department of State Revenue

Tax Court of Indiana

July 17, 2015

RICHARD D. FOSTER, Petitioner,
v.
INDIANA DEPARTMENT OF STATE REVENUE, Respondent.

NOT FOR PUBLICATION

PETITIONER APPEARING PRO SE: RICHARD D. FOSTER Branchville, IN

ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER ATTORNEY GENERAL OF INDIANA KENNETH E. BIGGINS JOHN P. LOWERY DEPUTY ATTORNEYS GENERAL Indianapolis, IN

ORDER ON RESPONDENT'S MOTION TO DISMISS

Martha Blood Wentworth, Judge Indiana Tax Court

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 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 ...


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