                                                                            FILED
                                                                        Dec 12 2019, 8:47 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANTS                                       ATTORNEYS FOR APPELLEES
James K. Gilday                                               Jessica R. Gastineau
Gilday & Associates, P.C.                                     Traci M. Cosby
Indianapolis, Indiana                                         Office of Corporation Counsel
                                                              Indianapolis, Indiana



                                               IN THE
        COURT OF APPEALS OF INDIANA

Muir Woods Section One                                        December 12, 2019
Association, Inc., et al.,                                    Court of Appeals Case No.
Appellants-Plaintiffs,                                        18A-CC-2643
                                                              Appeal from the Marion Superior
        v.                                                    Court
                                                              The Honorable James B. Osborn,
Claudia O. Fuentes, Marion                                    Judge
County Treasurer; et al.,                                     Trial Court Cause No.
Appellees-Defendants.                                         49D14-1802-CC-6237




Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                           Page 1 of 15
                                            Case Summary
[1]   Pursuant to Indiana Code Section 6-1.1-15-1.1, Muir Woods Section One

      Association, Inc. (“Muir Woods”) and Nantucket Bay Homeowners

      Association, Inc. (“Nantucket Bay”) (collectively, at times, “the Homeowners

      Associations”) obtained review and appeal of property tax assessments on

      common area parcels, for tax years 2006 through 2009. The Marion County

      Assessor (“the Assessor”) and the Marion County Property Tax Assessment

      Board of Appeals (“PTABOA”) agreed to zero assessments and the Marion

      County Treasurer (“the Treasurer”) issued refund checks, which were allegedly

      deficient. Muir Woods and Nantucket Bay attempted collection in the Marion

      County Superior Court against the Assessor, the Treasurer, and the Marion

      County Auditor (collectively, “the Taxing Authorities”).1 The Taxing

      Authorities filed Indiana Trial Rule 12(B)(1) motions to dismiss for lack of

      subject matter jurisdiction, contending that the disputes arose under tax laws,

      and jurisdiction over the disputes, including any question as to exhaustion of

      administrative remedies, could only lie in the Indiana Tax Court (“the Tax

      Court”). The trial court consolidated the complaints and dismissed the

      consolidated complaint, with prejudice. This appeal by the Homeowners




      1
        In the trial court, the Homeowners Associations characterized their claims as claims for collection or
      enforcement of an agreement. On appeal, they characterize their claims as suits to compel administrative
      rulings upon multiple property tax Form 17-T claims for refund. They also claim that they sought an order to
      the Marion County Treasurer to issue notifications, pursuant to Indiana Code Section 6-1.1-26-6, that the
      refund checks issued (but not negotiated) had become part of surplus funds, to trigger a right of reclamation.
      These contentions were not specified in the complaints, nor were they argued at the hearing upon the motion
      to dismiss.

      Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                            Page 2 of 15
      Associations presents a single, consolidated issue of whether the Marion

      Superior Court has subject matter jurisdiction over this case. Because the claim

      is that the Homeowners Associations overpaid their property taxes and lack

      effective recourse under the then-existing property tax scheme, it is not a claim

      that the Marion Superior Court can adjudicate. We affirm the dismissal for

      lack of subject matter jurisdiction.2



                             Facts and Procedural History
[2]   Nantucket Bay filed real estate appeal petitions to challenge assessed values of

      its parcels for tax year 2006 and successive years. Nantucket Bay and the

      Assessor agreed that, for tax year 2006, eleven parcels had an assessed value of

      zero. The parties executed eleven copies of Form 134 to reflect the zero

      assessments. Those determinations were not appealed by either party. 3 Upon

      receiving Nantucket Bay’s claims for refund, the Treasurer issued four checks,

      in the aggregate amount of $11,290.29. Nantucket Bay did not cash the checks.

      The funds may have been placed in the general fund of the county or into a

      surplus tax fund, pursuant to Indiana Code Section 6-1.1-26-6(c),4 although

      Nantucket Bay allegedly did not receive notice of such action.




      2
        However, the dismissal was not with prejudice. A dismissal with prejudice is a dismissal on the merits. Fox
      v. Nichter Const. Co., Inc., 978 N.E.2d 1171, 1180 (Ind. Ct. App. 2012).
      3
       At that time, Indiana Code Section 6-1.1-15-1, repealed effective July 1, 2017, provided an administrative
      procedure for the review and appeal of tax assessments.
      4
       Indiana Code Section 6-1.1-26-6(c) provides: “If an excess payment is not claimed within the three (3) year
      period after November 10 of the year in which the payment was made and the county treasurer has given the

      Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                            Page 3 of 15
[3]   Muir Woods filed real estate appeal petitions to challenge assessed values of its

      parcels for tax year 2006. On June 24 and June 25, 2011, the PTABOA issued

      determinations that, for tax year 2006, eighteen parcels had an assessed value of

      zero. On October 3, 2011, Muir Woods and the Assessor completed forms to

      reflect that, for tax year 2007, twenty-three parcels had an assessed value of zero

      and, for tax year 2009, one parcel had an assessed value of zero. The

      determinations were not appealed by either party. Upon receiving Muir

      Woods’ claims for refund, the Treasurer issued a check in the amount of

      $11,481.42. Muir Woods did not cash the check.5


[4]   In February of 2018, Nantucket Bay and Muir Woods each filed a “Complaint

      to Collect Determined Overpaid Real Estate Tax.” (App. Vol. II, pgs. 18-26.)

      The Taxing Authorities filed motions to dismiss. On May 25, 2018, the trial

      court issued an order consolidating the actions. On August 8, 2018, the trial

      court conducted a hearing at which argument of counsel was heard. The

      parties agreed that: zero assessments were made as to the subject properties;

      there had been no appeal of the assessments; refund checks had been issued;

      and, during the ensuing years, no formal administrative challenges to the

      checks had been lodged. They did not directly address whether the issuance of




      written notice required under subsection (d), the county auditor shall transfer the excess from the surplus tax
      fund into the general fund of the county. If the county treasurer has given written notice concerning the
      excess under subsection (d), the excess may not be refunded under subsection (a) after the expiration of that
      three (3) year time period.” The Homeowners Associations deny receiving any statutory notice.
      5
       Muir Woods asserts that the remittance check “erroneously included an amount for a parcel that did not
      belong to Muir Woods.” Appellant’s Brief at 15.

      Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                              Page 4 of 15
      the checks triggered a right to any further administrative process. Rather, the

      Taxing Authorities argued that the trial court should dismiss the case because

      “regardless of whether there is a final determination [by a relevant agency] or is

      a question of whether there’s a final determination, those both are appropriate

      for the Indiana Tax Court.” (Tr., Vol. II, pg. 4.)


[5]   On September 4, 2018, the trial court issued an order dismissing the complaints

      “with prejudice.” Appealed Order at 1. On October 4, 2018, the Homeowners

      Associations filed a motion to correct error. On the following day, the trial

      court denied the motion to correct error. This appeal ensued.



                                 Discussion and Decision
                                        Standard of Review
              Trial Rule 12(B)(1) addresses the “[l]ack of jurisdiction over the
              subject matter.” In reviewing a motion to dismiss for lack of
              subject matter jurisdiction pursuant to Trial Rule 12(B)(1), the
              relevant question is whether the type of claim presented falls
              within the general scope of the authority conferred upon the
              court by constitution or statute. Robertson v. Anonymous Clinic, 63
              N.E.3d 349, 356 (Ind. Ct. App. 2016), trans. denied. A motion to
              dismiss for lack of subject matter jurisdiction presents a threshold
              question with respect to a court’s power to act. Id. “The
              standard of review for a trial court’s grant or denial of a 12(B)(1)
              motion to dismiss for lack of subject matter jurisdiction is ‘a
              function of what occurred in the trial court.’” Berry v. Crawford,
              990 N.E.2d 410, 414 (Ind. 2013) (citing GKN Co. v. Magness, 744
              N.E.2d 397, 401 (Ind. 2001)), reh’g denied. Where the facts before
              the trial court are not in dispute, the question of subject matter
              jurisdiction is one of law, and we review the trial court’s ruling de

      Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019      Page 5 of 15
               novo. Id. … In an appeal from a trial court’s grant of a pretrial
               motion to dismiss under Trial Rule 12(B)(1), we accept as true
               the facts alleged in the complaint. State ex rel. Zoeller v. Aisin USA
               Mfg., Inc., 946 N.E.2d 1148, 1149-50 (Ind. 2011), reh’g denied.


      Metz as Next Friend of Metz v. Saint Joseph Regional Medical Center, 115 N.E.3d

      489, 493-94 (Ind. Ct. App. 2018).


                                                      Analysis
[6]   The Taxing Authorities contend that the Marion County Superior Court, a

      court of general jurisdiction, cannot order the Treasurer to issue a larger

      property tax refund. They assert that subject matter jurisdiction could only lie

      with the Tax Court, upon satisfaction of statutory prerequisites and, moreover,

      only the Tax Court can decide whether its jurisdiction was invoked. The

      Homeowners Associations argue that, because the refund checks were

      unaccompanied by written final determinations from which to appeal, and the

      Indiana Legislature had not yet enacted Indiana Code Section 6-1.1-26-2.1

      (including a “deemed denied” provision for refund claims filed after July 1,

      2017, so that taxpayers could file an original action to claim a refund),6 they

      had no means to get the controversy to the Tax Court.




      6
        Effective July 1, 2017, Indiana Code Section 6-1.1-26-2.1(e) provides: “If a credit is not applied or a refund
      is not paid within one hundred twenty (120) days from the date a claim was filed under section 1.1 of this
      chapter, a claimant may file an original action claiming a refund in a court of competent jurisdiction in the
      county where the property is located. An original action must be filed by the later of four (4) years after the
      tax is paid, or four (4) years after the final disposition of an appeal by the county board, board of tax review,
      department of local government finance, or a court, with respect to a particular tax year.”

      Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                                Page 6 of 15
[7]   The Marion County Superior Court has subject matter jurisdiction over all civil

      and criminal cases, see Ind. Code § 33-29-1.5-2, except where exclusive

      jurisdiction has been conferred by law upon a different court, Aisin, 946 N.E.2d

      at 1152. “If the Tax Court has subject matter jurisdiction over a case, a trial

      court does not.” Robinson v. Dep’t of Local Gov. Finance, 99 N.E.3d 684, 688

      (Ind. Ct. App. 2018).


[8]   The general scope of authority given to the Tax Court is set forth in Indiana

      Code Section 33-26-3-1, which provides:


              The tax court is a court of limited jurisdiction. The tax court has
              exclusive jurisdiction over any case that arises under the laws of
              Indiana and that is an initial appeal of a final determination
              made by:


              (1) the department of state revenue with respect to a listed tax (as
                  defined in IC 6-8.1-1-1); or


              (2) the Indiana board of tax review.


[9]   A case “arises under” the tax laws if an Indiana tax statute creates a right or

      action, or the case principally involves collection of a tax or defenses to that

      collection. State v. Sproles, 672 N.E.2d 1353, 1357 (Ind. 1996). In addition to

      the “arises under” test, there is a second requirement to invoke the exclusive

      jurisdiction of the Tax Court; that is, there must be a “final determination” that

      the tax is owed. Id. A litigant must first exhaust administrative remedies before

      coming to the Tax Court; however, there must be an “adequate recourse at

      law.” Id. at 1361. The requirement that existing remedies be adequate is rooted
      Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019      Page 7 of 15
       in part in the concept that “Indiana cannot deprive its citizens of their property

       without due process of law.” Id. at n.19 (citing U.S. Const. amend. XIV).


[10]   In reliance upon this Court’s recent guidance in Robinson, the Taxing

       Authorities successfully argued to the trial court that the instant case arises

       under the tax laws. The Homeowners Associations have not conceded as

       much, but they also do not develop an argument to the contrary. They claim

       that Robinson has “no relevance and no resemblance.” Appellant’s Brief at 26.


[11]   In Robinson, we were concerned with the statutory criteria that a case “arise

       under” the tax laws. There, a township trustee had filed a complaint for

       declaratory judgment and injunctive relief against the Indiana Department of

       Local Government Finance (“the DLGF”) and the Town of Griffith in the

       Lake Superior Court to prevent the town from seceding from Calumet

       Township. 99 N.E.3d at 687. Secession eligibility was based upon the DLGF’s

       calculation of the statewide average township assistance property tax rate, and

       the trustee challenged the DLGF’s method for calculating the tax rate and its

       failure to follow administrative rulemaking procedures. Id. The DLGF moved

       to dismiss the case on grounds that the trial court lacked subject matter

       jurisdiction; the trial court granted the dismissal upon its determination that the

       case “arises under” the tax laws. Id.


[12]   On appeal of that dismissal, the Robinson Court summarized two cases that had

       previously considered the “arises under” concept, specifically Wayne Township

       v. Indiana Department of Local Government Finance, 865 N.E.2d 625 (Ind. Ct. App.


       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019       Page 8 of 15
2007), clarified on rehearing, 869 N.E.2d 531, trans. denied, and City of Fort Wayne

v. Southwest Allen County Fire Protection District, 82 N.E.3d 299 (Ind. Ct. App.

2017), trans. denied.


        In Wayne Township, we sua sponte addressed the Hamilton
        Superior Court’s jurisdiction over the Township’s lawsuit against
        the DLGF and the Marion County Auditor challenging the
        DLGF’s calculation of the Township’s maximum permissible
        property tax levy. 865 N.E.2d at 627. The Township challenged
        the DLGF’s calculation because it effectively reduced the
        amount of tax revenues the Township would receive from
        Marion County’s county option income tax (“COIT”). Id.
        Although noting that the case was unique in that it involved
        “warring governmental entities rather than a taxpayer versus the
        government,” we concluded that the case certainly arose under
        the tax laws of this state because it “principally involve[d]” the
        Township’s attempt to collect a tax, namely what it believed to
        be its fair share of Marion County’s COIT, based on its assertion
        that the DLGF inaccurately calculated the Township’s
        maximum permissible property tax levy. Id. at 628. Thus, we
        concluded that the trial court lacked subject matter jurisdiction.


        In contrast, in City of Fort Wayne, we concluded that the Allen
        Superior Court did have subject matter jurisdiction over an
        annexation dispute even though the allocation of tax revenues
        was at issue. 82 N.E.3d at 304. Specifically, the City filed a
        complaint seeking a declaration that it was entitled to receive
        property tax revenues relating to fire protection services from
        certain annexed territories. We emphasized that, unlike in
        Wayne Township, the parties did not dispute any tax assessment,
        did not request a change in tax levies, and were not attempting to
        collect a tax. Id. Indeed, “[n]o calculation to determine a
        specific tax assessment [needed to] be made, and no
        interpretation of tax laws [was] required.” Id. Rather, the City’s
        dispute merely centered on the intended recipient of taxes already

Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019      Page 9 of 15
               assessed and collected and thus it was not “quintessentially [a]
               tax matter.” Id. (citing Aisin, 946 N.E.2d at 1153).


       Robinson, 99 N.E.3d at 689-90. After reviewing those cases, the Robinson Court

       found the facts under consideration to be “similar to Wayne Township and

       dissimilar to City of Fort Wayne.” Id. at 690. Calumet Township had challenged

       the DLGF’s calculation method for determining the statewide average

       township assistance property tax rate, so that the case “squarely involve[d]

       interpretation and application of substantive tax law by a state agency charged

       with implementing that law and, as such, ‘arises under’ the tax laws of this

       state.” Id. Observing that it was not a typical collection matter, the Court

       clarified: “Although not a direct challenge to a tax collection, this case clearly

       revolves around an earlier step in the taxation or assessment process.” Id.


[13]   More recently, in D.A.Y. Investments LLC v. Lake County, 106 N.E.3d 500 (Ind.

       Ct. App. 2018), a panel of this Court reviewed a dismissal, for lack of subject

       matter jurisdiction, of a complaint by several plaintiffs, collectively referred to

       as “Owners,” against defendants collectively referred to as “Lake County

       Defendants.” The Owners sought to enforce a settlement agreement that

       allegedly “required the Lake County Defendants to assess their 1,800 parcels at

       the values agreed to and listed in Exhibit A.” Id. at 505. The Court concluded

       that the trial court did not have subject matter jurisdiction over “a case claiming

       error in the assessed value of property,” explaining:


               The Lake County Defendants made no agreement to assess the
               Owner’s property at a certain value going forward. Instead,

       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019      Page 10 of 15
               pursuant to paragraph 5, the parties agreed the properties “will be
               treated in the exact same manner as any other properties in Lake
               County, using the same methodologies.”


               Therefore, it is not possible to determine if the Lake County
               Defendants appropriately assessed the Owners’ property based
               on the settlement agreement alone. The general manner and
               methodology of tax assessment in Lake County determines the
               appropriate assessments for the Owners’ property.


       Id. at 505-06 (record citations omitted). Ultimately, even though the case

       “arose under” the tax laws, the Tax Court might not hear the case due to the

       lack of a “final determination.”7 See id. at 506. Nonetheless, even if the Tax

       Court did not hear the case, the trial court lacked jurisdiction. Id.


[14]   According to the Homeowners Associations, the D.A.Y. Court acknowledged

       the possibility that a court of general jurisdiction might enforce a settlement

       agreement. The Homeowners Associations argue that the Taxing Authorities

       simply changed their position after the time for appealing the zero assessments

       had passed and now refuse to abide by their agreements. They assert that no

       construction of tax law or tax expertise is required; rather, they are simply

       entitled to every dollar they paid in taxes for the subject parcels. Based upon a

       zero assessment, the tax liability would be zero. But the Homeowners




       7
         The Court observed that, although the claim of error in the assessed value of property was one that would
       fall within the exclusive jurisdiction of the Tax Court, the Owners may have forfeited an appeal to the Tax
       Court by failing to avail themselves of the administrative process, which would culminate in “a final
       determination by the Indiana Board of Tax Review” pursuant to Indiana Code § 6-1.1-15-4. D.A.Y.
       Investments, LLC, 106 N.E.3d at 506.

       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                           Page 11 of 15
       Associations do not have a written settlement agreement providing for a sum

       certain to be refunded, as opposed to credited to a future tax year. They also

       seek interest payments, to which they claim entitlement under the property tax

       scheme. As in Robinson, this matter is not a direct challenge to a tax collection,

       but it arose from the “taxation or assessment process.” 99 N.E.3d at 690. And

       the resolution may be said to “revolve around an earlier step.” See id. Like

       Robinson, “this case squarely involves interpretation and application of

       substantive tax law by a state agency charged with implementing that law and,

       as such, ‘arises under’ the tax laws of this state.” Id.


[15]   As for whether there has been a “final determination,” the arguments of the

       parties have been less than straight forward. The Homeowners Associations

       have pointed out that they obtained “final determinations” as to tax assessment

       values and subsequently requested refunds.8 They insist that they have done all

       that they could do to exhaust available administrative remedies but also suggest

       that their refund claims might be characterized as pending. The Taxing

       Authorities do not concede that the Homeowners Associations exhausted their

       administrative remedies, but they do not identify any additional step that the

       Homeowners Associations could have taken under the then-existing law.




       8
        They claim to have engaged in some informal attempts at resolution after receiving the allegedly deficient
       checks issued by the Treasurer.

       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019                           Page 12 of 15
[16]   In Marion County Auditor v. Revival Temple, we explained the process for

       requesting a refund of property tax already paid:


               Indiana Code chapter 6-1.1-26 provides a statutory mechanism
               by which a party may request a refund of a property tax that has
               already been paid. This framework requires that a party seeking
               the refund file the claim with the county auditor. Ind. Code § 6-
               1.1-26-1(1). The claim for a refund is then reviewed by the
               department of local government finance, the county board of
               commissioners, or the Indiana Board of Tax Review, from which
               it may be appealed and reviewed in the Indiana Tax Court. Ind.
               Code §§ 6-1.1-26-2 to -4. Indiana Code § 6-1.1-26-5 provides that
               a claim for a refund may be “allowed either by the county board
               of commissioners, the department of local government finance,
               the Indiana board, or the Indiana tax court on appeal[.]”
               Because the statutorily prescribed mechanism for filing a claim
               for a refund of property taxes already paid is through
               administrative proceedings that the Legislature has provided may
               end with judicial review by the Indiana Tax Court, the trial court
               lacked subject matter jurisdiction to order a refund.


       898 N.E.2d 437, 445-46 (Ind. Ct. App. 2008), trans. denied.


[17]   “For purposes of Tax Court jurisdiction, a final determination is an order that

       determines the rights of, or imposes obligations on, the parties as a

       consummation of the administrative process.” Id. (citing State Bd. of Tax Com’rs

       v. Ispat Inland, Inc., 784 N.E.2d 477, 481 (Ind. 2003)). The lack of a “final

       determination” by a tax-related agency is equivalent to a failure to exhaust

       administrative remedies, depriving the Tax Court of subject matter jurisdiction.

       Id. A party cannot circumvent this requirement by filing an action in a trial

       court rather than the relevant administrative agency. Id.

       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019    Page 13 of 15
[18]   But here the Homeowners Associations did not circumvent a requirement.

       They obtained “final determinations” as to tax assessment value,

       determinations which the Homeowners Associations had no incentive to appeal

       and which the Taxing Authorities did not appeal. The Homeowners

       Associations requested refunds, which were not denied. They argue that they

       needed specific written rulings on their refund forms. But they simply could not

       compel the Treasurer to provide along with the checks a written “final

       determination” to satisfy the second prerequisite of Indiana Code Section 33-

       26-3-1. With no final determination by the Indiana Board of Tax Review, there

       is no petition for judicial review with the Indiana Tax Court. See id.


[19]   At bottom, this case presents a claim of tax overpayment and inadequate

       remedy at law to obtain a full refund. The Marion Superior Court lacks

       authority to determine whether the Homeowners Associations overpaid their

       taxes. Nor is the court of general jurisdiction the appropriate court to

       determine if the Treasurer failed to satisfy an obligation in response to a claim

       for refund on Form 17-T. How the statutory scheme operates is a tax question.

       Regardless of the legal theory relied upon, all challenges to the tax laws are to

       be tried in the Tax Court. Sproles, 672 N.E.2d at 1357. Finally, whether the

       Homeowners Associations exhausted available administrative remedies is not a

       question for a court of general jurisdiction. A taxpayer cannot be deprived of

       an opportunity to obtain a “final determination” and ultimately reach the Tax

       Court. See Sproles, 672 N.E.2d at 1361 (recognizing that deprivation of property

       cannot occur without due process). But whether a “final determination” has


       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019      Page 14 of 15
       been made is best determined by the Tax Court, “with its greater expertise.”

       Robinson, 99 N.E.3d at 690.



                                                Conclusion
[20]   The Marion Superior Court lacks subject matter jurisdiction to order the

       Treasurer to issue refunds for overpayment of taxes to the Homeowners

       Associations.


[21]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CC-2643 | December 12, 2019   Page 15 of 15
