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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.
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