Thursday, April 17, 2014

Tax Court Finds that Assessor Waived Objection to Late Submission of Record

Excerpts of the Tax Court Order follow:

When the Joneses filed their complaint with the Court on August 28, 2013, they did not include a request that the Indiana Board prepare a certified copy of the administrative record. (Pet’r Pet.; Resp’t Mot. Dismiss ¶ 2.) Consequently, under Indiana Tax Court Rule 3, they had until September 27, 2013, to file a separate request for the administrative record to be prepared. See Ind. Tax Court Rule 3(B), (E). The Assessor now argues in her motion to dismiss that because the Joneses failed to meet that September deadline, they “have not properly initiated their action before this Court” 5 and, as a result, their complaint should be dismissed.1 (See Resp’t Mot. Dismiss; Resp’t Br. at 5.)

Through a series of cases, the Indiana Supreme Court has held that a failure to timely file the administrative record pursuant to Indiana Tax Court Rule 3 is the type of legal error or procedural defect which, if not objected to at the appropriate time, is waived. See, e.g., Packard v. Shoopman, 852 N.E.2d 927 (Ind. 2006); K.S. v. State, 849 N.E.2d 538 (Ind. 2006); Druids, 847 N.E.2d 924. This holding is equally applicable to the situation that occurs when, like here, a petitioner fails to timely request that a certified copy of the Indiana Board’s administrative record be prepared under Indiana Tax Court Rule 3. Accordingly, if the opposing party does not object to the procedural defect at the appropriate time, the objection is waived.

In this case, it would have been revealed by the end of September that the Joneses had not filed a separate request for the administrative record in compliance with Indiana Tax Court Rule 3. Nonetheless, the Assessor waited until mid-December to raise an objection. Additionally, the Assessor and her attorney had already had numerous communications with the Court by that point, as they had filed her answer on October 2, participated in the telephonic case management conference on October 23, and had filed the October 29 response opposing the Joneses’ motion for default judgment. Given these particular facts, the Court finds that the Assessor has waived her objection to the timeliness of the Joneses’ administrative record request.