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Assessor waived objection to untimely filing of record

January 3, 2017

The Indiana Tax Court on Friday determined that a northern Indiana assessor’s office waived its objection to a late-filed certified administrative record in a tax appeal, ruling that an objection must be made before the merits of a case have been furthered.

Lake County Trust Co., Trust No. 6 (Flowers for Heaven Inc.) initiated an original tax appeal challenging a final determination of the Indiana Board of Tax Review. The board notified the trust by letter on May 6, 2016, that the certified administrative record was complete. But the trust did not file the administrative record until Sept. 13, after it filed its brief on the merits on Sept. 1 and after the assessor’s Sept. 7 motion to dismiss.

The trust failed to timely file the certified administrative record, so the assessor argued that the appeal should be dismissed. But the Tax Court on Friday determined that the assessor’s motion raising its objection was not timely.

The assessor maintained it was, citing Indiana Trial Rule 12(B), because it filed the motion within 20 days after the trust filed its brief. But the assessor’s motion was made after the trust filed its brief on the merits, and a brief is not a pleading, so Ind. Tr. Rule 12(B) does not “shelter the Assessor’s objection from waiver,” Judge Martha Wentworth wrote.

She cited the Indiana Supreme Court’s findings that an objection to an untimely filing of the record can be waived if not raised at the “appropriate time.” Although the court did not provide a bright-line rule, it did say that an objection must be made at the “earliest opportunity.”

Wentworth found this to mean that the “earliest opportunity” to object must precede the furtherance of the merits.

“Accordingly, the Court finds that an objection to the untimely filing of the certified administrative record in an appeal from a final determination of the Indiana Board must itself be filed before the merits of a case have been furthered. Here, the Assessor filed its Motion after the Trust filed its brief; at that point, however, the merits of the case had already been furthered. Consequently, the Assessor waived its objection to the Trust’s untimely filing of the certified administrative record,” Wentworth wrote in Lake County Trust Co., Trust No. 6, (Flowers for Heaven, Inc.) v. St. Joseph County Assessor, 02T10-1604-TA-10.
 

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