Full Opinion (html_with_citations)

ATTORNEY FOR PETITIONERS:                      ATTORNEYS FOR RESPONDENT:
JAMES K. GILDAY                                JOHN P. LOWREY
GILDAY & ASSOCIATES, P.C.                      JESSICA R. GASTINEAU
Indianapolis, IN                               OFFICE OF CORPORATION COUNSEL
                                               Indianapolis, IN



                               IN THE
                         INDIANA TAX COURT

MUIR WOODS SECTION ONE ASSN., INC.,              )
MUIR WOODS, INC., SPRUCE KNOLL                   )                          FILED
HOMEOWNERS ASSOC., INC., and                     )                    Dec 22 2023, 11:07 am

OAKMONT HOMEOWNERS ASSOC., INC.,                 )                          CLERK
                                                                       Indiana Supreme Court
                                                 )                        Court of Appeals
                                                                            and Tax Court
       Petitioners,                              )
                                                 )
              v.                                 ) Cause No. 22T-TA-00001
                                                 )
MARION COUNTY ASSESSOR,                          )
                                                 )
       Respondent.                               )


                   ORDER ON RESPONDENT’S MOTION TO DISMISS

                                  FOR PUBLICATION
                                  December 22, 2023

ROBB, Senior J.

       Muir Woods Section One Assn., Inc., Muir Woods, Inc., Spruce Knoll

Homeowners Assoc., Inc., and Oakmont Homeowners Assoc., Inc. (the HOAs) initiated

an appeal with this Court alleging that the Indiana Board of Tax Review erroneously

dismissed their case at the administrative level. Upon review, the Court finds that it

lacks subject matter jurisdiction to decide the HOAs’ appeal.
                        FACTS AND PROCEDURAL HISTORY

       The HOAs are all homeowners’ associations that own property in Marion County,

Indiana. In 2014, the HOAs filed 141 “Petition[s] for Correction of an Error” (Forms 133)

appealing the assessment of their common areas for the 2001, 2002, and 2003

assessment years. (See, e.g., Cert. Admin. R. at 6-7 ¶¶ 2-3.) The HOAs believed their

common areas should have been assessed as having little to no value. (See, e.g., Cert.

Admin. R. at 16-23.) After the Marion County Property Tax Assessment Board of

Appeals denied all 141 Forms 133 in a single order, the HOAs appealed to the Indiana

Board. (See Cert. Admin. R. at 5-34.)

       In 2018, three years after appealing to the Indiana Board, the Marion County

Assessor moved to dismiss the appeal on the basis that the HOAs utilized the wrong

form to litigate their claims. (See, e.g., Cert. Admin. R. at 526-27 ¶ 1, 529 ¶¶ 8-10,

540.) In a final determination dated June 13, 2019, the Indiana Board held that the

HOAs had indeed raised the type of claims that could not be corrected using a Form

133 and dismissed the appeals. (See, e.g., Cert. Admin. R. at 526, 537 ¶ 29.)

       The HOAs subsequently initiated an original tax appeal, claiming that the Indiana

Board’s final determination was erroneous for three reasons. (See, e.g., Cert. Admin.

R. at 541, 543.) In an opinion issued on August 31, 2020, this Court affirmed in part

and reversed in part the Indiana Board’s final determination. (See Cert. Admin. R. at

538-47.) More specifically, the Court rejected two of the HOAs’ three stated claims of

error – that their common areas were exempt from taxation and that the assessed

values of their common areas did not include the proper discount prescribed in the

applicable land order – and affirmed the Indiana Board’s dismissal as to those two



                                             2
issues. (See Cert. Admin. R. at 547.) The Court, however, remanded the HOAs’ third

claim of error – whether their common areas had been taxed more than once – for the

Indiana Board to consider. (See Cert. Admin. R. 547.) The Court noted that because

the HOAs had not had the opportunity to present evidence to the Indiana Board

regarding that claim, they were entitled to do so on remand. (See Cert. Admin. R. at

547 (indicating to the Indiana Board that “a review of the property record cards and tax

bills of the individual homeowners within each HOA community may reveal that [the]

objective error [of multiple taxation] was made”).)

        The HOAs appealed the Tax Court’s decision to the Indiana Supreme Court.

(See, e.g., Cert. Admin. R. at 548.) On August 26, 2021, the Supreme Court affirmed

the portion of the Tax Court’s decision that 1) rejected the HOAs’ claim that their

common areas were exempt from taxation and 2) remanded to the Indiana Board the

issue of whether the common areas had been taxed more than once. (See Cert.

Admin. R. at 548-53.) The Supreme Court, however, reversed the portion of the Tax

Court’s decision with respect to the HOAs’ claim that the assessed values of their

common areas did not include the proper discount prescribed in the applicable land

order and remanded that issue (along with the issue the Tax Court previously

remanded) to the Indiana Board “for further proceedings.” (See Cert. Admin. R. at 548-

553.)

        On October 4, 2021, the HOAs requested that the Indiana Board schedule a

status conference. (See Cert. Admin. R. at 554-57.) Instead, the Indiana Board

scheduled a hearing for December 8, 2021, to review and decide the two issues that

had been remanded to it. (See Cert. Admin. R. at 558-60.) In scheduling that hearing,



                                             3
the Indiana Board stated that “[e]vidence will be limited to the two issues [remanded to

it], namely, whether the common areas were assessed at ‘20% of the base rate,’ and

whether ‘a review of the property record cards and tax bills’ indicate the tax was paid

more than once.” (Cert. Admin. R. at 560.)

       On October 28, 2021, the parties filed a joint motion to continue the Indiana

Board hearing and for leave to submit an agreed case management plan in which they

would “stipulate the earliest time in which they [would] be prepared” for a remand

hearing. (See Cert. Admin. R. at 561-64.) On November 10, 2021, however, the

Indiana Board issued a notice to the parties that it would merely reschedule the remand

hearing for December 15, 2021. (See Cert. Admin. R. at 565-66.)

       On November 12, 2021, the HOAs filed with the Indiana Board an unopposed

motion to establish a case management plan in which it sought to push the remand

hearing out to late September or October of 2022 so that it would have time to conduct

discovery and file dispositive motions if necessary. 1 (See Cert. Admin. R. at 567-70;

Cert. Admin. R. Addendum at 2319-21.) One week later, on November 19, 2021, the

HOAs served the Assessor with a Trial Rule 30(b)(6) notice of deposition – along with a

request for production of certain documents – scheduled for December 2, 2021. (See

Cert. Admin. R. at 582 ¶ 9, 601-09, 620-21.) That same day, however, the Assessor’s

counsel advised the HOAs that December 2nd would probably not work because she

had a medical appointment. (See Cert. Admin. R. at 2106.) Despite a subsequent

series of rather contentious emails between the parties, the HOAs ultimately conducted


1
  The HOAs represent that at the time they filed this motion on November 12, they had not yet
received the Indiana Board’s order rescheduling the remand hearing for December 15. (See
Pet’rs’ Br. Supp. Pet. Jud. Rev. (“Pet’rs’ Br.”) at 7 ¶ 8 (indicating that the HOAs received the
Indiana Board’s notice in the mail on November 15).)
                                                4
the deposition on December 2 but, as should have been anticipated, the Assessor and

his counsel did not appear. (See, e.g., Cert. Admin. R. 2101-06, 2116-28, 2155-70.)

      On December 14, 2021, the HOAs filed with the Indiana Board both a motion for

partial summary judgment (complete with a brief and designation of evidence) as well

as a motion to reschedule the remand hearing that was set for the next day, December

15. (See Cert. Admin. R. at 580-86, 628-2057.) The Assessor responded with a motion

to strike the HOAs’ motion for partial summary judgment, arguing that the HOAs failed

to timely provide him with their designated evidence/exhibits that supported their motion

for partial summary judgment. (See Cert. Admin. R. at 2058-62.) See also 52 IND.

ADMIN. CODE 4-8-1 (2021) (indicating that the parties are to exchange copies of

documentary evidence at least five business days before the scheduled Indiana Board

hearing).

      On December 21, 2021, the HOAs filed a motion with the Indiana Board seeking

sanctions against the Assessor for his failure to appear at the December 2 deposition

and produce the requested documents. (See Cert. Admin. R. at 2064-78.) The next

day, December 22, 2021, the Indiana Board issued an order dismissing the HOAs’

appeal on the basis that the HOAs failed to appear at the scheduled December 15




                                            5
remand hearing.2 (See Cert. Admin. R. at 2184.) Nonetheless, the Indiana Board

indicated in its order that

          Within ten (10) days after the issuance of this Notice, [the HOAs]
          may file a written objection requesting that this Notice be vacated
          and set aside. This objection must contain supportive facts stating
          why they did not appear at the hearing and showing just cause why
          this appeal should not be dismissed. Upon receipt of [the] written
          objection, the Indiana Board of Tax Review may schedule another
          hearing on this appeal.

(Cert. Admin. R. at 2184.) See also 52 IND. ADMIN. CODE 4-9-4 (2021) (providing that 1)

if a party fails to appear at an Indiana Board hearing, the Indiana Board shall dismiss

the appeal; 2) the party then has 10 days to request that the dismissal be set aside; and

3) the Indiana Board may set aside its dismissal for failure to appear if the party

demonstrates good cause).

       On January 3, 2022, the HOAs filed a motion with the Indiana Board seeking to

have the dismissal of their case vacated. (See Cert. Admin. R. at 2185-2225.) On

January 10, 2022, the Indiana Board took the HOAs’ motion to vacate “under

advisement” and rescheduled the remand hearing for February 11, 2022, stating that it

would hear “all pending matters” at that time. (See Cert. Admin. R. at 2242-44.) Three

days later, however, on January 13, 2022, the Indiana Board resolved one of those

pending matters, issuing an order that denied the HOAs’ partial motion for summary




2
  As its authority for dismissing the HOAs’ appeal, the Indiana Board’s order cited 52 Indiana
Administrative Code 2-10-1. (Cert. Admin. R. at 2184.) That regulation, however, which
allowed the Indiana Board to dismiss an appeal petition for a party’s failure to appear, had been
repealed in 2020 and replaced by 52 Indiana Administrative Code 4-9-4. Compare 52 IND.
ADMIN. CODE 2-10-1 (repealed 2020) with 52 IND. ADMIN. CODE 4-9-4 (eff. May 15, 2020). Given
that the two regulations are substantially similar, the Indiana Board’s citation error is harmless.
(See also Pet’rs’ Reply Br. Supp. Pet. Jud. Rev. (“Pet’rs’ Reply Br.”) at 10 (acknowledging that
the Indiana Board’s citation error was “inconsequential” because the two regulations are
essentially the same).)
                                                6
judgment on the basis that it was untimely under the Indiana Board’s administrative

regulations.3 (See Cert. Admin. R. at 2245-46.)

       On January 18, 2022, the HOAs sought a rehearing with the Indiana Board on its

partial motion for summary judgment denial. (See Cert. Admin. R. at 2277-84.) When,

by February 7, 2022, the Indiana Board had not yet ruled on that rehearing request, the

HOAs initiated an appeal with the Tax Court. (See Pet’rs’ Pet. Jud. Rev. Fin.

Determination Dismissing Pet’rs’ Form 133 Pet. & Denying Mot. Partial Summ. J.

(“Pet’rs’ Pet.”) at 10 ¶¶ 51-52.)

       The parties subsequently filed their written briefs in accordance with Tax Court

Rule 3(G). In his brief, the Assessor asserted that the Court must dismiss the HOAs’

appeal for lack of subject matter jurisdiction.4 (See Resp’t Br. at 6, 8-10.) The Court

conducted oral argument on October 19, 2022. Additional facts will be supplied when

necessary.

                                              LAW

       Subject matter jurisdiction, the power of a court to hear and determine a

particular class of cases, can only be conferred upon a court by the Indiana Constitution



3
  In its order, the Indiana Board cited to 52 Indiana Administrative Code 4-7-3(b); that regulation
states “[a party’s] motion for summary judgment filed less than thirty (30) days before a hearing
may be denied as untimely.” (Cert. Admin. R. at 2245-46); 52 IND. ADMIN. CODE 4-7-3(b)
(2022).
4
   “A claim of lack of subject matter jurisdiction should be advanced through a motion to dismiss
. . . under Trial Rule 12(B)(1).” Albright v. Pyle,
637 N.E.2d 1360, 1363
 (Ind. Ct. App. 1994).
While the Assessor did not file such a motion, that failure is not determinative here: the
lack of subject matter jurisdiction can be raised at any time and, even when not raised properly
by a party, the tribunal must consider the issue sua sponte. See
id.
 See also, e.g., Perry v.
Stitzer Buick GMC, Inc.,
637 N.E.2d 1282, 1287
 (Ind. 1994) (explaining that while the defendant
filed a motion for summary judgment in which it asserted that the plaintiff’s complaint was barred
by the exclusivity provision of the Indiana Workers Compensation Act, the trial court should
have treated that motion as a motion to dismiss for lack of subject matter jurisdiction).
                                                 7
or by statute. See In re Adoption of O.R.,
16 N.E.3d 965, 970-71
 (Ind. 2014); K.S. v.

State,
849 N.E.2d 538, 540
 (Ind. 2006); State v. Sproles,
672 N.E.2d 1353, 1356
 (Ind.

1996). When a court lacks subject matter jurisdiction, any judgment it enters

is void. State Bd. of Tax Comm’rs v. Ispat Inland, Inc.,
784 N.E.2d 477, 481
 (Ind. 2003).

                                           ANALYSIS

       In their appeal to the Tax Court, the HOAs argue that the Indiana Board’s

decision to dismiss their case should be reversed because it “was contrary to [the]

Indiana Rules of Trial Procedure[] and in violation of most if not all of Indiana Code §

33-26-6-6(e)[.]” (Pet’rs’ Br. Supp. Pet. Jud. Rev. (“Pet’rs’ Br.”) at 3.) More specifically,

the HOAs assert that, “logically,” the Indiana Board should have continued the

December 15 remand hearing and rescheduled it for a later date, instead of dismissing

the appeal, given the following “facts”:

          1) the HOAs adequately explained to the Indiana Board very early
             on that they needed to conduct discovery and therefore needed a
             reasonable amount of time to do so before an evidentiary hearing
             should have ever been scheduled;

          2) the HOAs’ partial motion for summary judgment, which was filed
             before the December 15, 2021, hearing should have been
             decided before any evidentiary remand hearing could be
             conducted; and

          3) prior to the December 15 remand hearing, the HOAs raised
             several concerns regarding “exigent health circumstances” and
             the possible, yet “uncertain,” exposure of individuals from both




                                              8
               parties’ litigation teams to COVID-19.5

(See Pet’rs’ Br. 21-30 (claiming that in failing to acknowledge these facts, the Indiana

Board violated the Trial Rules contemplating the need for case management

conferences and plans as well as a party’s “right” to file summary judgment motions).)

(See also Cert. Admin. R. at 580-85 (outlining the possible COVID-19 exposures).) The

HOAs also allege that the Indiana Board erred in determining that their partial motion for

summary judgment was untimely. (See Pet’rs’ Br. at 32-38 (asserting in part that

because Indiana Trial Rule 56 allows a party to file a motion for summary judgment at

any time, the Indiana Board’s regulation requiring such a motion not less than 30 days

prior to a scheduled administrative hearing is in direct conflict and therefore

inapplicable).)

         In response, the Assessor argues that the Tax Court must dismiss the HOAs’

appeal because the HOAs have not yet received a final determination from the Indiana

Board. (See Resp’t Br. at 1.) Consequently, the Assessor argues, the Court lacks




5
    As the HOAs have explained:

            Exigent health circumstances justified [the HOAs’] non-appearance [at the
            December 15 remand hearing]. The undeniable fact is that the Delta and
            Omicron Coronavirus Variants surges were infecting, even the vaccinated,
            in increasingly large numbers. . . . Therefore, the utmost prudence, whether
            articulated with accurate foresight in [their] Motion for Continuance, or in
            hindsight, was employed by [the HOAs] and their counsel in not being
            physically present . . . on December 15, 2021.

(Pet’rs’ Br. at 29 (citation omitted).)


                                                 9
subject matter jurisdiction to decide the HOAs’ case and should remand the matter to

the Indiana Board to complete its administrative review.6 (See Resp’t Br. at 8-10, 15.)

                   Does the Tax Court have Subject Matter Jurisdiction?

       The Assessor’s motion to dismiss for lack of subject matter jurisdiction presents

the threshold question concerning the Court’s power to act. This Court has subject

matter jurisdiction over all “original tax appeals” and its territorial jurisdiction spans the

entire state. IND. CODE §§ 33-26-3-1, -3 (2023); Ind. Tax Court Rule 13.

       A case is an original tax appeal if it “arises under the tax laws of Indiana” and it

“is an initial appeal of a final determination” made by the Indiana Board.7 I.C. § 33-26-3-

1. With respect to the first requirement, 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) (citation omitted).

       The second requirement embodies the principle basic to all administrative law

that a party seeking judicial relief from an agency action must first establish that all

administrative remedies have been exhausted. See Ispat Inland,
784 N.E.2d at 482
.

Thus, the lack of a final determination from the Indiana Board, which is the equivalent to

the failure to exhaust administrative remedies, will act to deprive the Tax Court of




6
  Alternatively, the Assessor maintains that the Indiana Board’s dismissal of the HOAs’ case
should be affirmed because the HOAs did not demonstrate any “extraordinary circumstances”
that justified their failure to appear at the December 15 remand hearing. (See Resp’t Br. at 6-7,
10-14.) Given the Court’s resolution of the Assessor’s subject matter jurisdiction claim, the
Court need not address this issue.
7
  While not relevant here, a case may also be an initial appeal of a final determination made by
either the Department of State Revenue or the Department of Local Government Finance. See
IND. CODE § 33-26-3-1 (2023); IND. CODE § 33-26-6-0.2 (2023).
                                               10
subject matter jurisdiction in a case. See State ex rel. Att’y Gen. v. Lake Super Ct.,
820 N.E.2d 1240, 1247
 (Ind. 2005), cert. denied; Ispat Inland,
784 N.E.2d at 482
. “A final

determination is an order that determines the rights of, or imposes obligations on, the

parties as a consummation of the administrative process.” Whetzel v. Dep’t of Loc.

Gov’t Fin.,
761 N.E.2d 904, 906
 (Ind. Tax Ct. 2002) (emphasis added and quotations

omitted).

       Here, the Assessor asserts that the Indiana Board’s December 22, 2021, order

dismissing the HOAs’ appeal was an appealable final determination. (See Resp’t Br. at

9.) But when the HOAs moved to vacate that dismissal on January 3, 2022, and the

Indiana Board subsequently took that motion under advisement and scheduled another

remand hearing for February 11, 2022, the December 22, 2021, order “ceased to be a

final determination[ as] it was no longer a ‘culmination of the administrative process,’

determined no rights, and imposed no obligations.” (Resp’t Br. at 9-10 (citation

omitted).) The Court finds the Assessor’s argument persuasive.

       Indiana Code § 6-1.1-15-5 provides that once the Indiana Board issues a final

determination in a case, a party to the proceeding has 15 days to request a rehearing.

IND. CODE § 6-1.1-15-5(a) (2021). That statute further provides that if the Indiana Board

grants the rehearing request, it “(1) may conduct the additional hearings that [it]

determines necessary or [it may] review the written record without additional hearings;

and (2) shall issue a final determination not later than ninety (90) days after notifying the

parties that [it] will rehear the final determination.” I.C. § 6-1.1-15-5(a) (emphasis

added). A party’s request for rehearing does not toll the time by which it must file a

petition for judicial review unless the rehearing request is granted. I.C. § 6-1.1-15-5(a).



                                             11
       The language contained in Indiana Code § 6-1.1-15-5(a) is unambiguous: it

indicates the Legislature’s intent that once the Indiana Board grants a request for

rehearing, its original final determination ceases to carry any weight as the Indiana

Board must issue a “new” final determination in the matter that either “affirm[s] or

modif[ies]” the original final determination. See I.C. § 6-1.1-15-5(a). Accordingly, when

the HOAs moved to vacate the Indiana Board’s December 22, 2021, dismissal and the

Indiana Board took that motion under advisement and scheduled another remand

hearing for February 11, 2022, the original December 22, 2021, order ceased to be an

appealable final determination because the administrative review process had not yet

been consummated.8 See I.C. § 6-1.1-15-5(a); Whetzel,
761 N.E.2d at 906
. See also

Crown Prop. Grp., LLC v. Indiana Dep’t of State Revenue,
135 N.E.3d 671
, 677 (Ind.



8
  The HOAs’ counsel has stated that he “did not understand” how this result could be possible in
light of certain “ambiguous or confusing” Indiana Board regulations, namely 52 Indiana
Administrative Code 4-9-4 and 4-9-6. (See Oral Arg. Tr. at 11-14, 20 (asserting that because
those regulations, which govern Indiana Board dismissals for failure to appear or as a sanction,
do not contain a stay of the 45-day period to file an original tax appeal pending the outcome of a
challenge to a dismissal, he interpreted those regulations as not allowing for a rehearing).) (See
also Pet’rs’ Reply Br. at 10 (maintaining that the Indiana Board’s December 22, 2021, order
dismissing the HOAs’ case had to be an appealable final determination because he could not
move for rehearing on the notice of dismissal under the Indiana Board’s regulations).)
         When construing regulations, the foremost goal is to give effect to the intent of the
promulgating administrative agency. Will’s Far-Go Coach Sales v. Nusbaum,
847 N.E.2d 1074, 1078
 (Ind. Tax Ct. 2006), rev’d on other grounds. In doing so, it must be presumed that
the administrative agency intended its regulations to apply in logical manner and in a way that
prevents an unjust or absurd result.
Id.
 Here, however, the practical effect of counsel’s
regulatory interpretation produces an unjust and absurd result. Indeed, while
an administrative agency may adopt rules and regulations that enable it to put into effect the
purposes of the law, it may not make rules and regulations that are inconsistent with
the statute it is administering or that add to or detract from the law as enacted. Johnson Cnty.
Farm Bureau Co-op. Ass’n, v. Indiana Dep’t of State Revenue,
568 N.E.2d 578, 587
 (Ind. Tax
Ct. 1991), aff’d,
585 N.E.2d 1336
 (Ind. 1992). To interpret Indiana Board regulations 52 Indiana
Administrative Code 4-9-4 and 4-9-6 as the HOAs’ counsel has here produces a result
inconsistent with the Legislature’s unambiguous intent in enacting Indiana Code § 6-1.1-15-5(a).
See supra p. 11. (See also Oral Arg. Tr. at 14 (where the HOAs’ counsel admits that if he is
wrong in his interpretation, “then I don’t think that [the HOAs] are as prejudiced as what [we]
currently believe”).)
                                               12
Tax Ct. 2019) (explaining that when statutory language is clear and unambiguous, the

Court must give effect to its plain meaning, and it cannot enlarge or restrict that plain

meaning).

                                          CONCLUSION

       The HOAs initiated an appeal with this Court before they consummated the

administrative review process and received a final determination from the Indiana

Board. As a result of their premature filing, the Court lacks subject matter jurisdiction to

hear their appeal. Accordingly, the Court GRANTS the Assessor’s motion to dismiss.

The Court REMANDS the matter to the Indiana Board for action consistent with this

opinion.9

       SO ORDERED this 22nd day of December, 2023.



                                                              __________________________
                                                              Margret G. Robb, Senior Judge
                                                              Indiana Tax Court


Distribution:
James K. Gilday, John P. Lowrey, Jessica R. Gastineau, Indiana Board of Tax Review




9
  As it was reviewing the certified administrative record in this matter, it was evident to the Court
that the Indiana Board was frustrated by both the case’s return to its docket and how the parties
have litigated it. While it is no doubt important for the Indiana Board to manage its docket and
keep things moving along, it is also important that litigants know they are being heard.
Accordingly, the Court urges the Indiana Board on remand to work with the parties in
implementing a case management plan that allows them the necessary time to present their
positions but still facilitates an efficient resolution of the matter. To that end, the Court notes
that when it initially remanded the question of double taxation to the Indiana Board, it suggested
that “a review of the property record cards and tax bills of the individual homeowners within
each HOA community may reveal that [the] objective error [of multiple taxation] was made[.]”
(Cert. Admin. R. at 547 (emphasis added).) Ultimately, however, it is for the HOAs to choose
what evidence to present in their attempt to make their case.


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