Levy Co., Inc. v. State Bd. of Tax Com'rs

• Decision Date: 01 August 1977
• Docket Number: No. 3-575A98,3-575A98
• Parties: LEVY COMPANY, INC., Plaintiff-Appellant, v. STATE BOARD OF TAX COMMISSIONERS of the State of Indiana, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 796

365 N.E.2d 796

173 Ind.App. 667

LEVY COMPANY, INC., Plaintiff-Appellant, v. STATE BOARD OF TAX COMMISSIONERS of the State of Indiana Defendant-Appellee.

No. 3-575A98.

Court of Appeals of Indiana, Third District.

Aug. 1, 1977.

Warren E. McGill and Nelson J. Vogel, Jr., of Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for plaintiff-appellant.

Theo. L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for defendant-appellee.

HOFFMAN, Judge.

Plaintiff-appellant The Levy Company, Inc. (taxpayer) appeals from the trial court's granting of summary judgment in favor of defendant-appellee State Board of Tax Commissioners of the State of Indiana (Board).

The record discloses that on March 1, 1971, taxpayer owned business personal property in both Portage Township and Westchester Township in Porter County, Indiana. Taxpayer filed its business personal property tax returns with the respective township assessors for its business personal property located in each township. A claim for exemption from taxation for industrial waste control facilities was filed in each township along with the respective tax returns. A copy of each claim was mailed to the Indiana Stream Pollution Control Board on July 13, 1971. Taxpayer submitted proof of its mailing of a copy of each such claim to the respective township assessors. The exemption was denied by the Stream Pollution Control Board in a letter dated August 23, 1971. Such letter was sent to taxpayer, the Portage Township Assessor and Durwood Strang, a member of the State Tax Board.

The Westchester Township Assessor did not receive a written determination denying taxpayer's claim for exemption, but was informed of the contents of the August 23, 1971, letter within the 90-day period by the Portage Township Assessor and the county assessor. Both township assessors then let their denials of taxpayer's claims for exemption stand. Subsequent to the denials of taxpayer's claims for exemption, taxpayer sought review by the Porter County Board of Review and the State Board of Tax Commissioners, both of which denied the exemptions. Thereafter, taxpayer sought review of the Board's decision in the Porter Superior Court. Following motions for summary judgment by each party, the trial court entered summary judgment in favor of the Board. ¹ Taxpayer contends on appeal that the trial court erred in denying its motion for summary judgment and in granting Board's motion for summary judgment.

A summary judgment should be granted only where the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony reveal that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Ind. Rules of Procedure, Trial Rule 56(C). The materials on file are to be construed in favor of the nonmoving party and any doubt as to the existence of a genuine issue of material fact must be resolved against the movant. LaFrenz v. Lake Cty. Fair Bd. (1977), Ind.App., 360 N.E.2d 605. The burden is upon the proponent to demonstrate the absence of any issue of material fact. Podgorny v. Great Central Insurance Co. (1974), Ind.App., 311 N.E.2d 640.

Finally, it should be noted that when the moving party supports his motion for summary judgment by affidavits pursuant to Ind. Rules of Procedure, Trial Rule 56(E), the failure of the nonmoving party to oppose the motion by counter- affidavits does not entitle the movant to summary judgment. The moving party must still demonstrate that summary judgment is "appropriate." Moreover, Trial Rule 56(C), supra, specifically provides that such failure by the opponent of the motion does not entitle the movant to summary judgment as a matter of course. See also, Walker et ux. v. Statzer (1972), 152 Ind.App. 544, 284 N.E.2d 127 (transfer denied); Hunter v. Cook (1971), 149 Ind.App. 657, 274 N.E.2d 550.

IC 1971, 6-1-8-1 to 6-1-8-4 (Burns Code Ed. ² exempts "industrial waste control facilities" from ad valorem property taxation. In order to obtain such an exemption, the taxpayer is required to follow certain procedures so that a determination can be made as to whether the property qualifies for the exemption. IC 1971, 6-1-8-3, supra, delineates the procedure to be utilized by the taxpayer in making the claim for exemption and by the taxing authority in making its determination of qualification.

Such statute provides as follows:

"Claim for exemption Determination. The owner of any industrial waste control facility seeking to obtain property tax exemption thereof shall file a claim therefor, with such owner's annual personal property tax return filed with the assessor of the township in which such property is located, describing the property so used and stating the assessed value thereof claimed to be exempt, and shall forthwith forward by registered or certified mail a copy of such claim to the stream pollution control board for its information, review and certification. Said board shall acknowledge the receipt of such claim and may investigate such claim and, within ninety (90) days after the date of the taxpayer's mailing of the copy of such claim to it, may certify to the township assessor its written determination whether or not the property claimed for exemption is being currently utilized as a water pollution control facility. Thereupon, the township assessor shall, in accord with the board's determination, allow or deny such claim for exemption, in whole or in part, as the board shall have determined and shall make appropriate adjustment in the amount of the assessed value of the owner's tangible personal property for the year for which such exemption is allowed. If the board shall fail to certify such determination to the township assessor within ninety (90) days after the date of the taxpayer's mailing of the copy of such claim to said board, the township assessor shall, upon the submission of proof of the taxpayer's mailing of a copy of such claim to said board, allow such exemption as claimed by the taxpayer and shall accordingly reduce the assessed value of the owner's tangible personal property for the year for which such exemption is claimed."

Thus, the statute requires:

(1) the taxpayer must file a claim for exemption with the township assessor when he files his annual personal property tax returns.

(2) the taxpayer must forward a copy of such exemption claim by registered or certified mail to the Indiana Stream Pollution Control Board. Such Board must acknowledge receipt of the claim.

(3) the Stream Pollution Control Board may investigate any claim and is given 90 days after the date of the taxpayer's mailing of a copy of the claim to act upon such claim. The Stream Pollution Control Board's action consists of certifying to the township assessor its written determination of whether the property qualifies for the exemption. If, however, the Stream Pollution Control Board fails to act within the 90-day period, and if the taxpayer submits proof of mailing a copy of such claim to the Stream Pollution Control Board, then the township assessor is required to allow such a claim.

Taxpayer contends that the Stream Pollution Control Board failed to certify its determination of the claim within the 90-day period, that it submitted proof of mailing to the township assessor, and that it is therefore entitled to exemption.

The focal point in the controversy is whether the letter dated August 23, 1971, constituted a certification of the Stream Pollution Control Board's written determination of whether the facilities qualified for the exemption. The resolution of this question is dependent upon the meaning of the word "certify" as used in the statute and the degree of formality to be required thereby. A certificate has been defined to be "a writing by which an officer or other person bears testimony that a fact has or has not taken place; a written testimony of the truth of any fact." Federal Union Surety Co. v. Schlosser (1917), 66 Ind.App. 199, 203, 114 N.E. 875, 877 (transfer denied).

In Alidor v. Mobile County Commission (1973), 291 Ala. 552, 284 So.2d 257, at 260, the court defined certificate as follows:

"It has been held (1) that a certificate of a public officer is a written statement and signed, but not necessarily nor usually sworn...