Indiana Tax Court dismisses real property tax appeal due to taxpayers’ failure to timely file the agency record, where agency issued sufficient notice and taxpayers’ “own inaction” was not “excusable neglect.”

Indiana Tax Court Rule 3(E) requires the appealing party to request a certified copy of the agency record from the Indiana Board of Tax Review within thirty days of filing the petition.  And the rule further directs:  “The petitioner shall transmit a certified copy of the record to the Tax Court within thirty (30) days after having received notification from the Indiana Board of Tax Review that the record had been prepared.”  Id.  In Bosamia v. Marion County Assessor, Cause No. 49T10-1108-TA-52 (Ind. Tax Ct., June 19, 2012) (see, the relevant events unfolded in 2011 as follows:

1.         August 24th –  The Bosamias (Husband and Wife) filed their original tax appeal and paid a $50 deposit to the Indiana Board towards payment of the copying cost for the administrative record.  (They challenged the Indiana Board’s final determinations upholding the March 1, 2007 and 2008 real property tax assessments of their commercial property.)

2.         September 8th – The Indiana Board mailed an invoice to the Bosamias, stating that that record was prepared and that a balance of $161.00 was due.

3.         October 2d – “[Husband] learned that [a family member was] gravely ill, and he traveled to England to visit her.  [Wife] remained in Indianapolis to manage their restaurant and to care for their family.” Slip op. at 2. 

4.         October 18th – Husband returned to Indianapolis.

5.         October 21st – The Bosamias paid the balance due to the Indiana Board.

6.         October 22d – The Bosamias traveled to England due to the family member’s illness, returning on November 3d. 

7.         November 7th – The Assessor moved to dismiss the appeal, claiming that the Bosamias failed to comply with Tax Court Rule 3(E).

8.         November 9th – The Bosamias filed the agency record with the Tax Court.

The parties agreed that, if the Indiana Board’s invoice constituted adequate notice, the Bosamias had until October 11th to file the record with the Court.  Conceding that they missed this deadline, the Bosamias nevertheless argued that the motion to dismiss should be denied for two reasons.  First, they argued that their October 21st payment – not the invoice, which they claimed was inadequate – triggered the thirty-day filing deadline under Tax Court Rule 3(E), and their November 9th filing was timely.  The Indiana Board’s invoice stated that the agency record “has been prepared.”  Slip op. at 5.  That alone was sufficient to trigger the thirty-day filing period, the Court reasoned.  Id. (citing Wayne County PTABOA v. United Ancient Order of Druids-Grove #29, 847 N.E.2d 924, 929 (Ind. 2006)).  But the Board’s invoice went “even further by stating 1) how the Bosamias could obtain the record (payment of the invoice) and 2) that their receipt of the invoice triggered their thirty days to file the record.” Id.  The invoice was “sufficient notice.” Id.

Second, the Bosamias argued that their failure to timely file the record should be excused under Ind. Trial Rule 6(B)(2) as the result of “excusable neglect.”  That phrase, the Court noted, is not defined by the trial rule or its federal counterpart.  Slip op. at 6.  And Indiana case law interpreting the phrase is “scarce.”  The available authority suggests that “excusable neglect” applies when a failure to act is due to “some unexpected or unavoidable hindrance or accident” or is “caused by some event or action outside a party’s control.” Id. (quotations and citations omitted).  In this case, the Bosamias filed the record more than three weeks passed when they learned of the family member’s illness.  Moreover, Wife had nearly another week to file the record before the October 11th deadline.  Id.  The Court explained that it “sympathizes with the unfortunate circumstances that befell the Bosamias; however, the failure to timely file was not because of [the family member’s] illness, but was the result of their own inaction.” Slip op. at 7.  The Court concluded:  “Given these facts and circumstances, the Court cannot employ its discretion to enlarge the Bosamias’ time to file” the agency record.  Id

The Court granted the motion to dismiss.  Id.  As a silver lining to the taxpayers’ stormy cloud, however, the Court in a footnote observed:  “Each tax year stands alone.  Consequently, the Bosamias may protest their property assessment next year.” Slip op. at 7 n.10 (citations omitted).

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