MEMORANDUM DECISION

Pursuant to Indiana Tax Court Rule 17, this

Memorandum Decision shall not be regarded 

as precedent or cited before any court except

for the purpose of establishing the defense of 

res judicata, collateral estoppel, or the law of

the case.

______________________________________________________________________

PETITIONER APPEARING PRO SE: ATTORNEYS FOR RESPONDENT:

RICHARD D. FOSTER GREGORY F. ZOELLER

Branchville, IN ATTORNEY GENERAL OF INDIANA

KENNETH E. BIGGINS

JOHN P. LOWERY

DEPUTY ATTORNEYS GENERAL

Indianapolis, IN

_____________________________________________________________________

IN THE

INDIANA TAX COURT

_____________________________________________________________________

RICHARD D. FOSTER, )

)

Petitioner, )

)

v. ) Cause No. 49T10-1504-TA-00017

)

INDIANA DEPARTMENT OF STATE )

REVENUE, )

)

Respondent. )

______________________________________________________________________

ORDER ON RESPONDENT’S MOTION TO DISMISS

July 17, 2015

WENTWORTH, J.

Richard D. Foster filed an appeal with this Court, claiming that as a result of his 

pleading guilty to possession of marijuana, the Indiana Department of State Revenue 
illegally assessed Controlled Substance Excise Tax (CSET) and seized the titles to his 

vehicles. The Department has moved to dismiss Foster’s appeal alleging that the Court 

lacks subject matter jurisdiction. The Court grants the Department’s motion. 

FACTS & PROCEDURAL BACKGROUND

On July 20, 1993, Foster was charged with possession of marijuana with intent to 

deliver and with violating the controlled substance excise tax provision, Indiana Code § 

6-7-3-11. (See Resp’t Mot. Dismiss, Ex 1.) On July 22, 1993, the Department issued 

Foster an assessment of CSET, penalties, and interest. (Resp’t Mot. Dismiss, Ex 2. at 

5-6.) In accordance with a plea negotiation agreement, Foster pled guilty and was 

sentenced on July 25, 1994. 

On April 22, 2015, Foster filed an appeal with this Court. In his Complaint, Foster 

1) requested that the Department refund all of his tax refunds that had been applied 

toward the CSET assessment; 2) sought payment for all of his vehicles that he lost due 

to the Department’s seizure of their titles; and 3) sought compensatory and punitive 

damages in the amount of $100,000. (Pet’r Prisoner Civil Compl. at 2.) Foster’s 

request for relief was based on, among other things, the fact that his plea agreement did 

not include the assessment of CSET. (See Pet’r Letter Supp. Mot. J. at 1.) 

On June 25, 2015, the Department filed a Motion to Dismiss, asserting the Court 

lacked subject matter jurisdiction to hear Foster’s appeal. 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 supporting affidavits or 
evidence. Garwood v. Indiana Dep’t of State Revenue, 998 N.E.2d 314, 317 (Ind. Tax 

Ct. 2013) (citations omitted). Furthermore, the Court may weigh the evidence to 

determine the existence of requisite jurisdictional facts, resolve factual disputes, and 

devise procedures to ferret out the facts pertinent to jurisdiction. Id.

LAW & ANALYSIS

Subject matter jurisdiction, the power of a court to hear and determine a 

particular class of cases, can be conferred upon a court only by the Indiana Constitution 

or by statute. See K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006); State v. Sproles, 672 

N.E.2d 1353, 1356 (Ind. 1996). The Indiana Tax Court has the power to hear and 

determine only those cases that are “original tax appeals,” i.e., appeals that both arise 

under the tax laws of Indiana and are initial appeals of a final determination of the 

Department. See IND. CODE §§ 33-26-3-1, -3 (2015). 

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 or defenses to that 

collection.’” State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d 1148, 1152 (Ind. 

2011) (quoting Sproles, 672 N.E.2d at 1357). Here, Foster’s claim is that the 

Department improperly collected CSET; accordingly, the case arises under the tax laws 

of Indiana. 

For the Court to have subject matter jurisdiction, the case must also be an initial 

appeal from a final determination of the Department. I.C. § 33-26-3-1(1). A final 

determination “is an order that determines the rights of, or imposes obligations on, the 

parties as a consummation of the administrative process.” See State Bd. of Tax 

Comm’rs v. Ispat Inland, Inc., 784 N.E.2d 477, 481 (Ind. 2003). As the Indiana 
Supreme Court has explained,

[a] taxpayer receives a final determination in one of two ways. The 

taxpayer can pay the tax, request a refund, and sue in the Tax Court 

if the request is denied. Alternatively, the taxpayer can protest the 

listed tax at the assessment stage and appeal to the Tax Court from 

a letter of findings denying the protest. 

Sproles, 672 N.E.2d at 1357 (citations omitted). 

The evidence presented in both Foster’s Complaint and the Department’s Motion

to Dismiss with supporting exhibits establishes that Foster neither timely filed a protest 

with the Department after it issued the CSET assessment, penalties, and interest on 

July 22, 1993, nor timely filed a Claim for Refund with the Department of the money it 

applied to his liabilities. See 45 IND. ADMIN. CODE 15-5-8 (2015) (see 

http://www.in.gov/legislative/iac/) (requiring a taxpayer to file a written protest 20 days 

from the date a CSET assessment or jeopardy assessment is made); IND. CODE § 6-8.1-

9-1(a) (2015) (requiring a taxpayer to file a claim for refund with the Department within 3

years after the latter of the due date of the return or the date of payment). 

Consequently, there is no evidence that the Department issued a Letter of Findings, a 

Memorandum of Decision, or an Order denying a refund. Accordingly, Foster does not 

appeal from a final determination and the Court lacks subject matter jurisdiction to hear 

and determine his appeal. 

ORDER

The Court, having found that Foster has not taken his appeal from a final 

determination of the Department, hereby GRANTS the Department’s Motion to Dismiss.

SO ORDERED this 17th day of July, 2015.

__________________________

Martha Blood Wentworth, Judge

Indiana Tax Court
Distribution:

Richard D. Foster, Kenneth E. Biggins, John P. Lowrey