State Bd. of Tax Com'rs v. Oliverius

• Citation: 156 Ind.App. 46,294 N.E.2d 646
• Decision Date: 12 April 1973
• Docket Number: No. 3--572A3,3--572A3
• Parties: STATE BOARD OF TAX COMMISSIONERS et al., Appellants (Defendants Below), v. Harry OLIVERIUS et al., Appellees (Plaintiffs Below).
• Court: Court of Appeals of Indiana

Page 646

294 N.E.2d 646

156 Ind.App. 46

STATE BOARD OF TAX COMMISSIONERS et al., Appellants (Defendants Below), v. Harry OLIVERIUS et al., Appellees (Plaintiffs Below).

No. 3--572A3.

Court of Appeals of Indiana, Third District.

April 12, 1973.

Rehearing Denied May 22, 1973.

Theodore L. Sendak, Atty. Gen., Curtis J. Butcher, Donald P. Bogard, Deputy Attys. Gen., for appellants

Paul Reed, Reed & St. Martin, Knox, for appellees.

STATON, Judge.

NATURE OF THE APPEAL: A reassessment of real property in Starke County was begun on March 1, 1969. The county trustees had engaged a professional appraising firm to make the reassessment. Several taxpayers felt that the reassessment made by the professional appraising firm was inacccurate and filed a complaint with the County Board of Review. The County Board of Review set aside the professional reassessment and ordered the Trustees of Starke County to make a new reassessment. This reassessment was accomplished by applying a percentage to the value stated on the property record cards. Hearings were held by the State Board of Tax Commissioners at which time they determined that the first reassessment made by the professional appraising firm was the better of the two assessments and should be used for tax purposes. The taxpayers sought relief from the State Board of Tax Commissioners' decision by filing a complaint in the Starke Circuit Court.

The taxpayers filed a motion for summary judgment based upon a denial of due process. The taxpayers allegation was that the State Tax Board considered matters in their decision that were not introduced at the hearings and that this evidence was gathered without the knowledge of and without the presentation to the taxpayers. The trial court granted the motion for summary judgment and this appeal ensued.

Two issues are presented for our review:

1. Did the Starke Circuit Court have subject matter jurisdiction?

2. May the State Tax Board base its decision on evidence obtained in the absence of and without the knowledge of the petitioners -taxpayers and without giving the petitioners-taxpayers an opportunity to meet or rebut such evidence?

In our opinion which follows, we hold that the State Tax Board did not rebut the presumption of jurisdiction and that the consideration of evidence in the absence of or without notice to the taxpayers so that it may be rebutted is a denial of due process of law. We affirm the trial court's judgment.

STATEMENT OF THE FACTS: The county trustees of Starke County, Indiana authorized a professional appraising firm to reassess the property in Starke County. A review of this reassessment before the County Board of Review was sought by affected taxpayers. The County Board of Review ordered the township trustees to reassess all real property in the townships of Starke County. New reassessments A motion for summary judgment was filed by the affected taxpayers on October 29, 1971. The motion was granted after hearings on November 16, 1971. The motion to correct errors was filed on January 14, 1972 and overruled on February 25, 1972. The appeal was fully briefed and distributed to this Court on November 14, 1972.

were made by the trustees as ordered by the County Board of Review. The reassessment was accomplished by applying a percentage to the value stated on the property record cards. Affected taxpayers sought review of this order before the State Board of Tax Commissioners. Hearings were held by the State Tax Board and at the conclusion of said hearings, the State Tax Board ordered the County Board of Review to reinstate the professional appraising firm's first reassessment. The affected taxpayers filed a class action on behalf of some 900 taxpayers in the Starke Circuit Court. On July 1, 1970, the cause was venued to Porter County.

STATEMENT OF THE ISSUES:

There are two issues which must be decided by this Court. They are:

1. Did the Starke Circuit Court have subject matter jurisdiction?

2. May the State Tax Board base its decision on evidence obtained in the absence of and without the knowledge of the petitioners-taxpayers and without giving the petitioners-taxpayers an opportunity to meet or rebut such evidence?

STATEMENT ON THE LAW

ISSUE ONE:

Did the Starke Circuit Court have subject matter jurisdiction?

The State Board of Tax Commissioners on September 19, 1972 filed with this Court a motion to vacate the judgment of the Porter Superior Court for lack of subject matter jurisdiction. The underpinning of the State Tax Board's motion is the recent decision by the First Division of the Appellate Court of Indiana in Cooper v. County Board of Review of Grant County, Ind.App. (1971), 276 N.E.2d 533. The State Tax Board argues that the Porter Superior Court did not obtain subject matter jurisdiction in that a statutory remedy was available and that the taxpayers had failed to pursue this remedy. ¹ In Cooper v. County Board of Review of Grant County, supra, 276 N.E.2d at 539, this Court quoted Justice Arterburn's opinion in Public Service Commission of Indiana v. City of Indianapolis (1956), 235 Ind. 70, 83, 131 N.E.2d 308:

". . . (W)here the statute provides for a procedure for such review or for a judicial remedy, it excludes any common law or equitable procedure to the extent such statutory provisions are adequate in protecting and preserving such substantive rights guaranteed by the constitution, the statutes or general principles of law. Such statutory procedure must be followed at least to the extent of the remedy available before resort is made to any common law or equitable remedy."

If the taxpayers are afforded a statutory remedy, it must be followed. If the remedy is not followed, they waive any rights that they may have had to pursue an alternative remedy. If the taxpayers had a statutory remedy and chose not to follow it, the Porter Superior Court would have been divested of subject matter jurisdiction, and an attack on its jurisdiction under Rule TR. 12(B)(1), I.C.1971, 34--5--1--1, of the Indiana Rules of Procedure would be proper.

Our first determination must be whether I.C.1971, 6--1--31--4; Ind.Stat.Ann. § 64--1004 (Burns 1972 Supp.) provides a statutory right to the taxpayers to appeal the final determination of the State Tax Board in an equalization order. ² In determining whether a statute applies to a final determination of the State Tax Board, we must not view the statute in isolation but must ascertain its effect and application by reading it in context with the entire act. Walgreen Co. v. Gross Income Tax Division (1947), 225 Ind. 418, 75 N.E.2d 784 and State ex rel. Clemens v. Kern (1939), 215 Ind. 515, 20 N.E.2d 514, 21 N.E.2d 141. In so doing, it becomes readily apparent that I.C.1971, 6--1--31--4, supra, applies to any final determination of the State Tax Board which affects the assessment on a taxpayer's property, regardless of the procedural steps that preceded the State Tax Board's decision. Thus, a final equalization order which affects a petitioner's tax assessment can be appealed through I.C.1971, 6--1--31--4, supra.

The question now becomes: Are the taxpayers precluded from review because they failed to comply with the requirements of I.C.1971, 6--1--31--4, supra? I.C.1971, 6--1--31--4, supra, reads as follows:

'Appeals to circuit or superior court.--Any person shall have the right to appeal from the final determination of the state board of tax commissioners regarding the assessment on his property to the circuit or superior court of the county in which said property is being assessed. Appeals may be consolidated, at the request of the appellants, in order to save the expenses thereof, when it can be done in the interest of justice. At any time within thirty (30) days after the board gives notice of its determination, an appeal may be taken by filing a written notice with the board asking for such appeal and designating the court to which such appeal is being taken, together with the filing of a complaint in said court, a copy of which shall be served upon the attorney-general as provided by the Acts of 1945, chapter 3, section 1 ( § 49--1937), as amended; no such appeal shall be deemed to have been commenced unless the service of such complaint upon the attorney general, as therein provided, is made within thirty (30) days after the board gives notice of its determination as provided herein. Upon such appeal being requested, the secretary of the board shall make out and certify to a complete transcript of the proceedings, not including the evidence, had with respect to the property of the person so appealing, and transmit the same to the clerk of the designated court. Such appeal shall be tried by the court without the intervention of a jury, and the trial shall be governed by the laws governing civil actions. All appeals under this section shall be advanced on the docket of the court and shall be entitled to precedence in the consideration of the court. . . .'

I.C.1971, 6--1--31--4, supra, states that to appeal the State Tax Board's final order, the taxpayers must have:

(1) filed a written notice with the tax board

(a) asking for an appeal;

(b) designating the court to which the appeal would be taken;

(2) File a complaint in the Starke Circuit Court

(3) Send a copy of the complaint to the attorney general, and

(4) Serve the complaint on the attorney general and the notice of appeal on the State Tax Board within 30 days of the State Tax Board's notice of its final determination.

The record shows that the final order of the State Tax Board was filed on May 14, 1970. The complaint was filed by the taxpayers in the Starke Circuit Court on June 8, 1970. As to the rest of the requirements listed above, the record is silent. Coupled with this lack of information is a stipulation by the parties that:

'14. It is stipulated that all steps necessary to be taken by the named plaintiffs to perfect an appeal from the order of May 14, 1970, were duly and timely taken...