ATTORNEYS FOR PETITIONER : ATTORNEY FOR RESPONDENT :

JAMES F. BEATTY JOHN C. SLATTEN JESSICA L. FINDLEY MARION COUNTY ASSESSOR’S DONALD D. LEVENHAGEN OFFICE KATHRYN MERRITT - THRASHER Indianapolis, IN MEGAN M. PIAZZA LANDMAN BEATTY , LAWYERS Ind ianapolis, IN 

# IN THE

INDIANA TAX COURT

HARVARD SQUARE COOPERATIVE, ) INC., ) ) Petitioner, ) ) v. ) Cause No. 49T10

- 1406

- TA

- 36 ) JOSEPH P. O’CONNOR, MARION ) COUNTY ASSESSOR, ) ) Respondent. )

ORDER ON RESPONDENT’S MOTION TO DISMISS

MEMORANDUM DECISION January 20 , 2015 WENTWORTH, J. Joseph P. O’Connor in his official capacity as the Marion County Assessor has moved to dismiss Harvard Square Cooperative, Inc.’s appeal, claiming that the Court lacks subject matter jurisdi ction. The Court grants the Assessor’s motion. FACTS AND PROCEDURAL HISTORY The events giving rise to this matter commenced several years ago. On April 22,2

2005, Harvard Square filed an Application for Property Tax Exemption with the Assessor, claiming that its 342

- unit multi

- family cooperative apartment complex and personal property were exempt from property taxation because they were owned, occupied, and exclusively used for the charitable purpose of providing affordable housing to low

- income persons. ( See Cert. Admin. R. at 224

- 327.) The Marion County Property Tax Assessment Board of Appeals (PTABOA) granted Harvard Square’s exemption application. ( See Cert. Admin. R. at 210

- 19.) Harvard Square’s property remained exempt from property tax for the n ext four years. ( See, e.g. , Cert. Admin. R.
at 366

- 95.) In 2009, this Court issued a decision in which it held that the provision of affordable housing to low

- income persons was not a per se charitable purpose. See Jamestown Homes of Mishawaka, Inc. v . St. Joseph Cnty. Assessor , 909 N.E.2d 1138, 1144 (Ind. Tax Ct. 2009), review denied . As a result, the PTABOA questioned several of its prior exemption determinations, including Harvard Square’s. ( See Cert. Admin. R.
at 662

- 63, 671

- 72.) On January 31, 2011, the PTABOA sent Harvard Square a letter requesting that it complete a four

- page worksheet “to help [the PTABOA] better understand the services [that Harvard Square] provides to [its] tenants.” ( See Cert

. Admin. R. at 396

- 402 .) The PTABOA explained that it would use the worksheet to review Harvard Square’s exemption status and that it may hold a hearing. ( See Cert. Admin. R. at 396.) Harvard Square completed and returned the worksheet to the PTABOA as requested. On March 8, 2011, after conducting a hearing, the PTABOA revoked Harvard Square’s exemption for the 2010 tax year. ( See Cert. Admin. R. at
403

- 16.)3

On April 5, 2011, Harvard Square appealed to the Indiana Board of Tax Review , alleging that the PTABOA lacked the statutory authority to re voke its 2010 exemption

. ( See, e.g. , Cert. Admin. R. at 3

- 6, 9

- 10.) Alternatively, Harvard Square alleged that the PTABOA’s exe mption revocation was untimely and ignored that fact that its property had been owned, occupied, and exclusively used for chari table purposes since 2005. ( See, e.g. , Cert. Admin. R. at 10

- 14.) On September 16, 2011, Harvard Square filed a Motion for Summary Judgment , asserting that the PTABOA’s unilateral revocation of its exemption was improper not only because it lacked the st atutory authority to do so but also because it was untimely

. ( See C ert. Admin. R. at 328

- 42.) On January 17, 2014, after conducting a hearing, the Indiana Board issued an order denying Harvard Square’s Motion for Summary Judgment. ( See Cert. Admin. R. a t 496

- 507.) On January 29, 2014, Harvard Square filed a Petition for Rehearing with the Indiana Board

. ( See Cert. Admin. R. at 508

- 15 , 528

- 50 .) The Indiana Board treated Harvard Square’s Petition for Rehe aring as a Motion to Reconsider and on April 24,
2 014, affirmed its denial of Harvard Square’s Motion for Summary J udgment . ( See Cert. Admin. R. at 516

- 17, 553

- 64.) The Indiana Board explained that Indiana Code §
6

- 1.1

- 11

- 1 et seq. authorized the PTABOA’s exemption revocation and that the revocation was both timely and in compliance with all applicable notice requirements

. ( See Cert. Admin. R. at 553

- 64 .) On June 9, 2014, Harvard Square appealed to this Court. On August 15, 2014, the Assessor filed a Motion to Dismiss for Lack of Jurisdiction. The Court held a4

hearing on October 29, 2014. 1 Additional facts will be supplied as necessary. STANDARD OF REVIEW When this Court rules on a motion to dismiss for lack of subject matter jurisdiction, it may consider the petition, the motion, and any supporti ng affidavits or evidence. Garwood v. Indiana Dep’t of State Revenue , 998 N.E.2d 314, 317 (Ind. Tax Ct. 2013). The Court may also weigh the evidence to determine the existence of requisite jurisdictional facts, resolve factual disputes, and devise proced ures to ferret out the facts pertinent to jurisdiction. Id. at 317

- 18. LAW Subject matter jurisdiction, the power of a court to hear and determine a particular class of cases, can only be conferred upon a court by the Indiana Constitution or by statute. See In re Adoption of O.R. , 16 N.E.3d 965, 9 70

- 71 (Ind. 2014) ; K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006); State v. Sproles, 672 N.E.2d 1353, 1356 (Ind. 1996). The Tax Court has subject matter jurisdiction over all “original tax appeals” and its terr itorial jurisdiction spans the entire state. I ND

. C ODE §§ 33

- 26

- 3

- 1,

- 3 (2015 ); Ind. Tax Court Rule 13. A case is an original tax appeal if it “arises under the tax laws of Indiana” and it “is an initial appeal of a final determination” made by the Indian a Board

. I.C. § 33

- 26

- 3

-

1 During the hearing, the Court also considered the motions to dismiss for lack of jurisdiction that were filed in ten companion cases. ( See Order, Sept. 29, 2014 (setting a consolidated he aring for cause numbers: 49T10

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- 35 ( Grandville Coop., Inc. v. Marion Cnty. Assessor ), 49T10

- 1406

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- 36 ( Harvard Square Coop., Inc. v. Marion Cnty. Assessor ), 49T10

- 1406

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- 37 ( Riley

- Roberts Park, LP v. Marion Cnty. Assessor ), 49T10

- 1406

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- 38 ( York town Homes S., Inc. v. Marion Cnty. Assessor ), 49T10

- 1406

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- 39 ( Troy Manor Coop., Inc. v. Marion Cnty. Assessor ), 49T10

- 1406

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- 40 ( Lakeview Terrace Coop., Inc. v. Marion Cnty. Assessor ), 49T10

- 1406

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- 41 ( Mayfield Green Coop., Inc. v. Marion Cnty. Assess or ), 49T10

- 1406

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- 42 ( Three Fountains W., Inc. v. Marion Cnty. Assessor ), 49T10

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- 43 ( Southwood Coop., Inc. v. Marion Cnty. Assessor ), 49T10

- 1406

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- 44 ( Three Fountains Coop., Inc. v. Marion Cnty. Assessor ), and 49T10

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- 45 ( Retreat Coop., Inc. v. Marion Cnty. Assessor ).)5

1. With respect to the first requireme nt, a case arises under Indiana’ s tax laws “if (1) ‘an Indiana tax statute creates the right of action,’ or (2) ‘the case principally involves collection of a tax o r defenses to that collectio n.’ ” State ex rel. Zoeller v. Aisin USA Mfg., Inc. , 946 N.E.2d 1148, 1152 (Ind. 2011) ( citation omitted ). The parties do not dispute that this case arises under Indiana’s property tax laws. The second requirement, that a case be an initial appeal of the Indiana Board’s final determination, includes the exhaustion of administrative remedies requirement. See State Bd. of Tax Comm’ rs v. Ispat Inland, Inc. , 784 N.E.2d 477, 482 (Ind. 2003). Thus, the failure to exhaust administrative remedies, like failing t o obtain a final determination from the Indiana Board, generally deprive s the Court of subject matter jurisdiction. 2 See id. at 482

- 83

. Nonetheless , the failure to exhaust administrative remedies is not fatal to obtaining jurisdiction when extraordinary circumstances establis h that doing so would be futile, would cause irreparable harm , or where the relevant statute is alleged to be void on its face

. Id. at 483. Moreover, t he exhaustion of administrative remedies requirement may not be appropriate if “a n agency’s action is challenged as being ultra vires and void.” Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC , 798 N.E.2d 839, 844 (Ind. 2003) (citation omitted). A NALYSIS I. The Assessor claims that the Court does not have subject matter ju risdiction over this matter because Harvard Square seeks the review of an Indiana Board interlocutory

2 The Indiana Supreme Court has recently held that the exhaustion of administrative remedies requirement is a procedural error that does not implicate a trial court’s subject matter jurisdiction under the Administrative Orders and Procedures Act (AOPA). See First Am. Title Ins. Co. v. Robertson , 19 N.E.3d 757, 760

- 61 (Ind. 2014), aff’g in part 990 N.E.2d 9, 12

- 13 (Ind. Ct. App. 2013). The holding in that case, however, does not affect the outcome of this decision.6

order, not an Indiana Board final determination. ( See Resp’t Br. Supp. Mot. Dismiss Lack Jurisdiction at 1

- 3.) Harvard Square, on the other hand, contends that the Court does have subject matter jurisdiction over its appeal because the Indiana Board creat ed a final determination when it issued an order on a procedu ral issue that terminated the litigation between the parties. ( See Br. Supp. Pet’r Resp. Resp’t Mot. D ismiss (“Pet’r Br.”) at 3; Hr’g Tr. at 11

- 13.) Harvard Square cites the decision in Whetzel v. Department of Local Government Finance , 761 N.E.2d 904 (Ind. Tax Ct. 2002) as support for its position. ( See Pet’r Br. at 3.) As explained in Whetzel , “‘[ a ] f inal determination is an order that determines the rights of, or imposes obligations on, the parties as a consummation of the administrative
process

. ’” Whetzel v. Dep’t of Local Gov’t Fin. , 761 N.E.2d 904, 906 (Ind. Tax Ct. 2002) (internal quotation marks , brackets, and citation omitted) (emphasis added) . In Whetzel , the State Board of Tax Commissioners found that it lacked the statutory authority to determine whether a late payment penalty on property taxes was properly assessed. See id. at 906

- 07

. The Court held that even though the State Board’s finding resolved the procedural issue, but not the underlying substantive issue, it constituted a final determination because at that point there were no other issues for the State Board to resolve. See id. a t 907. In other words, the State Board’s resolution of the procedural issue termina ted the administrative process because it prevented it from reaching the underlying substantive issue of whether the late payment penalty was properly assessed in the first place. See id. In this case, however, the Indiana Board’s Order determining that the PTABOA had the statutory authority to review and revoke Harvard Square’s exemption for the7

2010 tax year did not end the administrative process. Indeed, there is still an outstanding substantive issue for the Indiana Board to decide: whether Harvard Square’s property was owned, occupied, and used for charitable purposes during the 2010 tax year

. ( See, e.g. , Cert. Admin. R. at 477 (where Harvard Square states that “the eligibility of [its property] for an exemption is not at issue in the Motion for Summary Judgment”), 498 (where the Indiana Board acknowledges that Harvard Square “has not sought summary judgment regarding the issue of whether [ Harvard Square’s ] property

w as owned, used, and occupied for a charitable purpose”).) Thus, the Indiana Board’s resolution of the procedural issue in this case, unlike the State Board’s resolution of the procedural issue in Whetzel , did not conclude the administrative process becaus e there is a pending issue for the Indiana Board to resolve. Consequently, Harvard Square has appealed an Indiana Board interlocutory order, not an Indiana Board final determination. II. Alternatively, Harvard Square contends that it does not need to ob tain a final determination from the Indiana Board given the extraordinary circumstances in this case. ( See Pet’r Br. at 3

- 5.) Harvard Square specifically claims that the PTABOA “went rogue” in reviewing its exemption because nothing under Indiana Code § 6

- 1.1

- 11

- 1 et
seq. or any other statute or regulation authorized the PTABOA to review and revoke its exemption for the 2010 tax year. ( See Pet’r Br. at 4

- 5; Hr’g Tr. at 14

- 15.) In other words, Harvard Square maintains that because the PTABOA’s review of its exemption

was ultra vires ( i.e., beyond the scope of its statutory authority) and void, it need not8

exhaust its administrative remedies. 3 ( See Hr’g Tr. at 18

- 21, 29

- 30.) The Indiana Supreme Court has explained that exhaustion may not be appropriate “ i f a n action is brought upon the theory that [an] agency lacks the jurisdiction to act in a particular area[.]” Twin Eagle , 798 N.E.2d at 844 (citation omitted). This is especially true when the resolution of a case depends o n the construction of a statut e, which is a pure question of law reserved for judicial resolution

. See id. The question of whether Indiana Code § 6

- 1.1

- 11

- 1 et seq. authorized the PTABOA’s review of Harvard Square’s exemption for the 2010 tax year is a pure questio n of law . Nonethel ess, the mere fact that the disposition of an issue depends on the resolution of a pure question of law does not create a per se exception to the exhaustion requirement. See id. Indeed, in Twin Eagle the Indiana Supreme Court explained that even when cha llenging the constitutionality of a statute that is beyond an agency’s power to determine, litigants might still need to exhaust administrative remedies because the administrative process may resolve the matter on other grounds

. Id. ; a ccord Sproles , 672 N .E.2d at 1360

- 61. In this instance, requiring Harvard Square to exhaust by acquiring a final determination on the substantive issue may avoid premature litigation by providing an

3 Harvard Square has also claimed that it would be futile to exhaust its administrative remedies because it has already obtained a ruling from the Indiana Board regarding its procedural claims. ( See Br. Supp. Pet’r Resp. Resp’t Mot. Dismiss (“Pet’r Br.”) at 4; Hr’g Tr. at 27.) Obtaining a final determination from the Indiana Board on the substantive issue of whether Harvard Square ’s property was owned, occupied, and used for charitable purposes during the 2010 tax year, however, would not be futile because it may c urtail future litigation. See Johnson v. Celebration Fireworks, Inc. , 829 N.E.2d 979, 984 (Ind. 2005) (stating that to prevail on a claim of futility a litigant “‘must show that the administrative agency was powerless to effect a remedy or that it would h ave been impossible or fruitless and of no value under the circumstances’” (citation omitted) ). Harvard Square has also claimed that it would suffer irreparable financial harm if it had to exhaust its administrative remedies. ( See Pet’r Br. at 4.) Noneth eless, Harvard Square explained during the hearing that a subsequent agreement with the Assessor along with its potential eligib ility for statutory interest has eliminated that harm. ( See Hr’g Tr. at 27

- 29.)9

opportunity for the case to be resolved on grounds other than those currently before the Court. In addition, it conserves the Court’s resources by allowing the Indiana Board to develop an adequate record for judicial review on the fact sensitive issue of whether Harvard Square owned, occupied, and used its property for charitable purposes during the 2010 tax year. The Court therefore finds that Harvard Square must exhaust its administrative remedies before the Court may address whether Indiana Code § 6-1.1-
11

- 1 et seq. authorized the PTABOA’s review and revocation of Harvard Square’s exemption for the 2010 tax year. CONCLUSION In challenging the Indiana Board’s interlocutory order, Harvard Square’s appeal falls into a class of cases that the Court does not have jurisdiction to hear. See Ispat Inland, 784 N.E.2d at 482. To the extent that Harvard Square has not established that extraordinary circumstances excuse it from exhausting its administrative remedies, the Court hereby GRANTS the Assessor’s Motion to Dismiss For Lack of Jurisdiction and REMANDS the matter to the Indiana Board for action consistent with this opinion. SO ORDERED this 20th day of January 2015.

________________________________ Martha Blood Wentworth Judge, Indiana Tax Court

Distribution: James F. Beatty, Jessica L. Findley, Donald D. Levenhagen, Kathryn Merritt-Thrasher, Megan M. Piazza, John C. Slatten