Weatherhead Co. v. State Bd. of Tax Com'rs

• Decision Date: 20 April 1972
• Docket Number: No. 771A137,771A137
• Citation: 281 N.E.2d 547,151 Ind.App. 680
• Court: Indiana Appellate Court
• Parties: The WEATHERHEAD COMPANY, Appellant, v. STATE BOARD OF TAX COMMISSIONERS of the State of Indiana, appellee.

Page 547

281 N.E.2d 547

151 Ind.App. 680

The WEATHERHEAD COMPANY, Appellant, v. STATE BOARD OF TAX COMMISSIONERS of the State of Indiana, appellee.

No. 771A137.

Court of Appeals of Indiana, Third District.

April 20, 1972.

Rehearing Denied May 30, 1972.

Paul S. Steigmeyer, Mentor Kraus, N. Thomas Horton II, Fort Wayne (Barrett, Barrett & McNagny, Fort Wayne, of counsel), for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Donald P. Bogard, Joseph S. Vanbokkelen, Deputy Attys. Gen., for appellee.

HOFFMAN, Chief Judge.

The primary issue presented by this appeal is whether, under the language of IC 1971, 6--1--31--4, Ind.Ann.Stat. § 64--1004 (Burns 1971 Supp.), a written notice of appeal is filed with the State Board of Tax Commissioners on the date that it is deposited in the United States Mail, or whether such notice is filed when it is actually received by the Board. The pertinent portion of § 64--1004, supra, provides:

'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 * * *.' (Emphasis supplied.)

The relevant facts are here set forth in chronological order:

On March 16, 1965, the State Board of Tax Commissioners of the State of Indiana (Board) made a final determination upholding an increased tax assessment of the personal property of appellant-The Weatherhead Company (Weatherhead) which appellant contends is contrary to law. On the same day the Board deposited its notice of said final determination in the United States mail.

On March 18, 1965, Weatherhead received the notice of the Board's final determination.

On April 15, 1965, Weatherhead filed its complaint appealing the final determination of the Board to the Kosciusko Circuit Court, and a summons with an attached copy of the complaint was delivered to the Sheriff of Kosciusko County. On the same date Weatherhead sent a copy of the complaint with a notice of appeal to the State Board of Tax Commissioners and to the Attorney General of Indiana by registered mail, return receipt requested.

On April 19, 1965, the Board and the Attorney General of Indiana received the copies of the complaint and notice of appeal. On April 27, 1971, the trial court entered its judgment sustaining the motion of the Board to dismiss the complaint for lack of jurisdiction of the subject-matter.

Weatherhead timely filed its motion to correct errors which was overruled by the trial court, and this appeal followed.

On appeal Weatherhead first contends that the requirement of § 64--1004, supra, pertaining to the service of a copy of the complaint upon the Attorney General has been satisfied. While it is not a disputed issue in this case, such contention of appellant is correct under the provision of IC 1971, 4--6--4--2, Ind.Ann.Stat. § 49--1938 (Burns 1964).

The next contention argued by Weatherhead is that the requirements of § 64--1004, supra, pertaining to a notice of appeal filed with the Board have been satisfied. Weatherhead argues that '(a)n appeal may be commenced under Burns 64--1004 even though notice is not given to the Board within thirty (30) days.'

In reference to this contention, § 64--1004, supra, is quite clear that the Legislature intended that an appeal from a final determination of the State Board of Tax Commissioners be commenced as follows:

'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, * * *.'

This portion of the statute plainly requires that a notice of appeal be filed with the Board within thirty days after the Board gives notice of its determination. Noncompliance with these provisions by not filing the prescribed notice has been held to defeat jurisdiction of the trial court to hear such appeal. Raab v. Ind. St. Bd. of Tax Comm. (1968), 143 Ind.App. 139, 238 N.E.2d 697. Furthermore, a reading of § 64--1004, supra, clearly indicates that the 30-day limitation period was intended to be more than directory. Notice must be filed within the 30-day period if the jurisdiction of the trial court is to be invoked.

If, then, notice is required to be filed within thirty days, the next question is whether Weatherhead's notice of appeal was 'filed' when it was deposited in the mail on the thirtieth day.

In Lawless et al. v. Johnson et al. (1953), 232 Ind. 64, at 67, 111 N.E.2d 656, at 658, it was stated that, "(a) paper is filed when it is delivered to the proper officer, and by him received to be kept on file.' Powers v. State (1882), 87 Ind. 144, 148.'

See also:

Walner v. Capron (1946), 224 Ind. 267, 274, 66 N.E.2d 64; Thompson v. State (1921), 190 Ind. 363, 367, 130 N.E. 412.

Similarly, there is a great unanimity of authority from other jurisdictions in agreement with the above definition of the word 'filed.' In Wirtz v. Local Union 169, International Hod Carriers, etc. (D.Nev. 1965), 246 F.Supp. 741 at 750, the court stated:

"The use of the word 'file' or 'filing' in a legal sense is almost universally held to mean the delivery of the paper or document in question to the proper officer and its receipt by him to be kept on file.' Creasy v. United States, 4 F.Supp. 175; Weaver v. United States (4 CCA 1934), 72 F.2d 20. A document is not filed when it is deposited in the mails and the risk of loss or delay in transit is on the sender.'

See also:

State v. Empire Building Company (1971), 46 Ala.App. 565, 246 So.2d 454;

Blades v. United States (9 Cir. 1969), 407 F.2d 1397;

Mears v. Mears (1965), 206 Va. 444, 143 S.E.2d 889.

16A Words and Phrases, 'File,' at 102--141; 102--141;

36A C.J.S. File at p. 397.

State v. Empire Building Company, supra, is directly in point with the instant case. In that case the statute in question provided that,

"If any taxpayer * * * is dissatisfied with the final assessment as fixed * * * he may appeal * * *, by filing notice of appeal with the secretary of the department of revenue and with the register of the circuit court * * * within thirty days from the date of said final assessment * * * and in addition thereto by giving bond * * * to be filed with and approved by the register of the court * * *."

(Ibid. 246 So.2d 456.)

Under this statute, a taxpayer's notice of appeal was deposited in the mail addressed to the secretary of the department of revenue on the 30th day but it was not delivered until the 33rd day. The court, under these circumstances, stated:

'We do not think that Title 7, Section 349(1--5) has any application to the requirements of Title 51, Section 140. Title 7, Section 349(1--5) was enacted in 1965 for the purpose of allowing service by mail, upon parties to a suit already begun, of pleadings and papers filed in the court. The purpose of the statute was to insure notice and remove necessity of personal service by an officer of the court. It provided a substitute method of accomplishing personal service of all pleadings except those seeking new or additional relief and the original complaint by which the jurisdiction of the court was invoked. It further relaxes previous requirements by allowing service upon attorneys of record.

'The jurisdiction of a court must be invoked in the manner and within the time required by statute. Title 7, Section 349(1--5) in no way pertains to means of invoking original jurisdiction.

'The right of appeal from a final assessment of the revenue department of the state is purely statutory and must be exercised in the manner and within the time prescribed therein. Ex parte State ex rel. Attorney General, 252 Ala. 149, 39 So.2d 669; State v. Golden, 283 Ala. 706, 220 So.2d 893.'

(Ibid. at 456.)

There appears, however, an exception to this definition of the word 'filed' as illustrated by the case of State ex rel. Sherrick v. Peck (1952), 158 Ohio St. 122, 107 N.E.2d 145. In Peck the applicable statute stated, in pertinent part:

'Unless the vendor or consumer, to whom said notice of assessment is directed shall, within thirty days after service thereof, either personally or by registered mail, file a petition in writing, * * * setting forth with definiteness and particularity the items of said assessment objected to, together with the reason for such objections, said assessment shall become and be deemed conclusive * * *.'

(Ibid. at 146.)

When faced with the allegation that the notice in question was not 'filed' until actual receipt by the tax commissioners, the court distinguished between the ordinary usage of the word 'filed' and the usage as intended by the above statute, as follows:

'It would seem manifest that something other than the physical lodging of the petition in the office of the respondent was contemplated when the use of registered mail was authorized. If the physical lodging of the petition was all that was being given consideration, the statute could have provided simply that the petition should be filed within 30 days. It would have been unnecessary to say more. The petition could have been delivered to the respondent's office by the petitioner personally or by messenger or by registered mail or by ordinary mail. The legislators would not have been interested in any particular method of delivering it. The only circumstance of importance would have been that the petition be in the hands of the respondent within the 30 days. The legislators, however, did not frame the provisions so simply. They inserted what we consider to be a provision for the benefit of the petitioner giving him an option of two methods of delivering the petition to the respondent.'

(Ibid. at 147.)

For other cases where the definition of 'filed' has been expanded by statutory provision, ...