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ATTORNEYS FOR PETITIONER: JON A. SCHMALTZ KATHRYN D. SCHMIDT BURKE COSTANZA & CUPPY LLP Valparaiso, Indiana

ATTORNEYS FOR RESPONDENT: STEVE CARTER ATTORNEY GENERAL OF INDIANA ALLEN R. MORFORD DEPUTY ATTORNEY GENERAL Indianapolis, IN

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IN THE INDIANA TAX COURT
_____________________________________________________________________ FRANK L. ENNIS, ) ) Petitioner, ) ) v. ) Cause No. 49T10-0504-TA-36 ) DEPARTMENT OF LOCAL ) GOVERNMENT FINANCE, ) ) Respondent. ) _____________________________________________________________________ ORDER ON PETITIONER'S MOTION FOR EVIDENTIARY HEARING FOR PUBLICATION October 12, 2005 FISHER, J. Frank L. Ennis (Ennis) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) valuing his real property for the 2002 tax year. The matter is currently before the Court on Ennis's motion for an evidentiary hearing. FACTS AND PROCEDURAL HISTORY Ennis owns residential property in Lake County, Indiana. For the March 1, 2002 assessment date, the Department of Local Government Finance (DLGF) assessed Ennis's property at $337,600 (land at $213,400 and improvements at $124,200). Ennis

timely filed a Petition for Review of DLGF Action for Lake County Residents (Form 139L) with the Indiana Board asserting that the DLGF's assessment was incorrect. On October 15, 2004, the Indiana Board sent Ennis notification, through regular course of mail, that it would conduct a hearing on his appeal on November 17, 2004. On November 17, 2004, the Indiana Board conducted its hearing on Ennis's Form 139L. Ennis did not appear at the hearing. On January 20, 2005, the Indiana Board sent Ennis an order indicating that his failure to appear at the hearing constituted the basis for its dismissal. Nevertheless, the Indiana Board's order allowed Ennis to submit, within ten days, a written request that the order be vacated and set aside. The request was to be accompanied by "supportive facts stating why [he] did not appear at the hearing and showing cause why [h]is appeal should not be dismissed." (Cert.

Admin. R. at 20.) The Indiana Board indicated that, upon receipt, it "may vacate and set aside th[e o]rder and schedule another hearing on the appeal." (Cert. Admin. R. at 20 (emphasis in original).) By letter dated January 26, 2005, Ennis requested that the order be set aside. More specifically, the letter stated: Please be advised that I did not receive the Notice of Hearing . . . until 12/04/04. The postage meter stamp on your envelope was dated 10/15/04, but there was not a cancellation date stamped by the USPS. There is a property in my area with a similar address to mine. It is 8641 Lakewood Avenue. 1 We have been receiving each other[']s mail for years. . . . I assure you that I would not have overlooked this matter due to the huge impact this outcome may have on me. I hope the information enclosed will support my position in this matter. I kindly request a new Hearing date be set at your earliest opening.

1

Ennis's address is 8641 Lake Shore Drive. (See Cert. Admin. R. at 17.)

2

(Cert. Admin. R. at 17 (footnote added).) On February 23, 2005, the Indiana Board declined to vacate its order, and issued a final determination in which it denied Ennis's appeal on the merits due to his "failure . . . to appear at the hearing and present evidence in support of the alleged errors in the assessment." (Cert. Admin. R. at 25.) Ennis initiated this original tax appeal on April 8, 2005. 2 On July 21, 2005, Ennis filed his motion for an evidentiary hearing before this Court. The Court conducted a

In answering Ennis's appeal, the DLGF raised the affirmative defense that this Court lacked: 1) jurisdiction of the subject matter; 2) jurisdiction of the person; and 3) jurisdiction of the particular case. (Resp't Answer at 2.) For the following reasons, however, the Court finds that the DLGF has failed to carry its burden of proof on the matter. "Subject matter jurisdiction is the power of a court to hear and determine the general class of cases to which the proceedings before it belong." Musgrave v. State Bd. of Tax Comm'rs, 658 N.E.2d 135, 138 (Ind. Tax Ct. 1995) (citation omitted). A determination as to whether subject matter jurisdiction exists depends solely on "whether the type of claim advanced by the petitioner falls within the general scope of authority conferred upon the court by constitution or statute." Id. While the appropriate means for a party to challenge a court's subject matter jurisdiction is either as an affirmative defense in its responsive pleading (answer) or in a Trial Rule 12(B)(1) motion to dismiss, the issue of a court's subject matter jurisdiction cannot be waived. See Ind. Trial Rules 8(C) and 12(B); Foor v. Town of Hebron, 742 N.E.2d 545, 548 (Ind. Ct. App. 2001) (citation omitted). The general scope of authority conferred upon the Tax Court is governed by Indiana Code

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