J.S. MARTEN, INC., JANICE S. MARTEN, and CHRISTOPHER M. MARTEN, Petitioners,
INDIANA DEPARTMENT OF STATE REVENUE, Respondent
PETITIONERS: G. JAYSON MARKSBERRY, MARKSBERRY LAW OFFICE,
LLC, Brownsburg, IN.
RESPONDENT: GREGORY F. ZOELLER, ATTORNEY GENERAL OF INDIANA,
JESSICA R. GASTINEAU, DEPUTY ATTORNEY GENERAL, Indianapolis,
ORDER ON RESPONDENT'S MOTION TO DISMISS
G. Fisher, Senior Judge.
Marten, Inc., Janice S. Marten, and Christopher M. Marten
(the Martens) have appealed the Indiana Department of State
Revenue's denial of their claim for a refund of sales tax
remitted for the 2004, 2005, and 2006 tax years (" the
years at issue" ). The matter, currently before the
Court on the Department's Motion to Dismiss, presents two
issues: 1) whether the Court has subject matter jurisdiction
over the Martens' appeal; and, if so, 2) whether the
Martens have failed to state a claim upon which relief can be
AND PROCEDURAL HISTORY
the years at issue, the Martens operated a retail store and
sold tangible personal property to customers in Indiana. (See
Pet'rs' V. Pet. Judicial Review Final Determination
[Department] (" Pet'rs' V. Pet." ), Attach.
Final Order Denying Refund at 2.) Between July and October of
2008, the Martens remitted, in five separate payments,
$162,529.11 in sales tax to the Department for the years at
issue. (See Pet'rs' V. Pet., Attachs. J.S. Marten
IDOR Timeline at 2-3 and Final Order Denying Refund at 2-3.)
On January 1, 2012, the Martens filed a refund claim with the
Department seeking to recover $162,396.34 of those payments.
(See Pet'rs' V. Pet., Attach. Final Order Denying
Refund at 2.) On October 26, 2012, after conducting a
hearing, the Department denied the Martens' refund claim,
concluding that it had not been timely filed under Indiana
Code § 6-8.1-9-1. (See Pet'rs' V. Pet., Attach.
Final Order Denying Refund.)
January 24, 2013, the Martens initiated an appeal. On
February 27, 2013, the Department moved to dismiss the
Martens' appeal. On November 5, 2015, after settlement
negotiations failed, the Court conducted a hearing on the
motion to dismiss. Additional facts will be supplied as
Subject Matter Jurisdiction
Department first argues that this Court lacks subject matter
jurisdiction over the Martens' appeal because they failed
to comply with a statutory prerequisite for initiating it:
they did not file a timely claim for a refund of sales tax.
(See Resp't Mot. Dismiss ¶ ¶ 5-14; Mem Supp.
Resp't Mot. Dismiss.) The Department is mistaken.
Subject matter jurisdiction 'refers only to the power of
a court to hear and decide a particular class of
cases.'" Marion Cnty. Auditor v. State, 33
N.E.3d 398, 400 (Ind.Tax Ct. 2015) (quoting Pivarnik v.
N. Ind. Pub. Serv. Co., 636 N.E.2d 131, 137 (Ind.
1994)). Subject matter ...