Keag Family Limited Partnership v. State Board of Tax Commissioners

PETITIONER APPEARING PRO SE:    ATTORNEYS FOR RESPONDENT:
GARY L. OETTING    STEVE CARTER    
General Partner     ATTORNEY GENERAL OF INDIANA
KEAG Family Limited Partnership    Indianapolis, IN
Fort Wayne, IN     
     VINCENT S. MIRKOV
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
    

_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________

KEAG FAMILY LIMITED PARTNERSHIP, ) ) Petitioner, ) ) v. ) Cause No. 02T10-9906-TA-145 ) STATE BOARD OF TAX COMMISSIONERS, ) ) Respondent. ) _____________________________________________________________________
ORDER ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
 
 
NOT FOR PUBLICATION
September 17, 2001
FISHER, J.
 
    KEAG Family Partnership (KEAG), appeals the final determinations of the State Board of Tax Commissioners (State Board) finding that it owed property taxes for the 1997 and 1998 tax years. The State Board subsequently motioned this Court for summary judgment, asserting that because a non-attorney filed the appeal and represented KEAG in court, the Court lacks subject matter jurisdiction to hear the case. For the reasons stated below, the State Board's motion for summary judgment is DENIED.
Facts and Procedural History
    KEAG contends that in 1997 and 1998, the State Board improperly assessed property tax liabilities against three of its parcels in Allen County, Indiana. More specifically, while the State Board found that Parcels 95-2564-0186, 95-2564-0196, and 18-0009-0006 each had assessed values of $14,940, $1,400, and $14,670 respectively (Pet'r Ex. F, Ans. to Resp't Motion, filed December 2, 1999), KEAG maintains that each of these parcels should have an assessed value of zero.
    Consequently, KEAG filed an original tax appeal with this Court on June 11, 1999, challenging all six final determinations. Gary L. Oetting (Oetting), KEAG's general partner, signed and filed KEAG's notice of claim. Oetting is not an attorney.
    On October 26, 1999, the State Board filed a motion for summary judgment. The Court heard oral arguments on April 27, 2000. Additional facts will be supplied as necessary.
Standard of Review
    Summary judgment is proper only when no genuine issues of fact exist and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); see also Dana Corp. v. State Bd. of Tax Comm'rs, 694 N.E.2d 1244, 1246 (Ind. Tax Ct. 1998). The Court must liberally construe all evidence in favor of the non-moving party and resolve any doubt against the moving party. See Knauf Fiber Glass, GmbH v. State Bd. of Tax Comm'rs, 629 N.E.2d 959, 961 (Ind. Tax Ct. 1994).
 
Discussion
    The parties do not dispute the fact that a non-attorney, Oetting, has filed this original tax appeal on behalf of KEAG. The State Board asserts, however, that Oetting's "representation not only constitutes the unauthorized practice of law, but . . . also deprives this Court of subject matter jurisdiction over this entire matter because any filing by a non-attorney is a nullity in law. . . ." (Resp't Mem. in Support of Motion for Summary Judgment at 1). The State Board relies on Indiana Small Claims Rule 8(C), which states in relevant part:
    In unassigned claims not exceeding one thousand five hundred dollars
    ($1,500), a sole proprietor or partnership may appear by a designated
    full-time employee of the business in the presentation or defense of claims
    arising out of the business.

    The State Board contends that KEAG's claim exceeds $1,500. (Resp't Mem. in Support of Motion for Summary Judgment at 3). The State Board also contends that KEAG's claim for refunds of property taxes paid for 1997 and 1998 do not "arise out of the business" of KEAG.
    The State Board's contentions are erroneous. First, the State Board relies on KEAG's notice of claim, which seeks a total refund in the amount of "$12,411.81, plus statutory interest and attorneys fees." (Resp't Designation of Facts and Evidence, Ex. D). What the State Board fails to recognize, however, is that that claim is based on a refund of taxes on the three aforementioned parcels not only for 1997 and 1998, but for 1994, 1995, and 1996 as well.
    When KEAG filed its original tax appeal, it sought refunds on property taxes for tax years 1994 through 1998 on the three subject parcels. It appears from the record, however, that while KEAG filed separate appeals on each of the three parcels with Allen County for all five years, only the appeals for 1997 and 1998 were forwarded to the State Board for final determinations. Because the Allen County Auditor failed to forward the 1994, 1995, and 1996 petitions to the State Board, however, there were no final determinations for those years from which KEAG could appeal. Consequently, this Court has no jurisdiction over those "lost" years, and is therefore unable to grant any relief thereon. See State Bd. of Tax Comm'rs v. Mixmill Mfg. Co., 702 N.E.2d 701, 703-704 (Ind. 1998); State Bd. of Tax Comm'rs v. L.H. Carbide Corp., 702 N.E.2d 706, 707 (Ind. 1998). Rather, KEAG's remedy for those years lies in a mandamus action with a court of general jurisdiction. See Carbide, 702 N.E.2d at 707.
    By eliminating the claim amounts for 1994, 1995, and 1996, the amount of KEAG's overall claim is greatly reduced. Indeed, for 1997, KEAG seeks $1,381.24 on Parcel 95-2564-0186, $129.44 on Parcel 95-2564-0196, and $929.68 on Parcel 18-0009-0006. For 1998, KEAG seeks $1,377.30 on Parcel 95-2564-0186, $129.08 on Parcel 95-2564-0196, and $983.64 on Parcel 18-0009-0006. Each of these claims is under $1,500 and well within the purview of Small Claims Rule 8(C). See footnote
    In addition, the State Board's notion that KEAG's challenge of property tax liability is not one "arising out of its business" is without merit. "Limited partnerships are a creature of statute, the primary purpose of which is to permit a form of business enterprise, other than a corporation, in which persons can invest money without being personally liable for all partnership debts." Kelsey v. Kelsey, 714 N.E.2d 187, 190 (Ind. Ct. App. 1999). A family limited partnership is simply a limited partnership among members of a family.
    Family limited partnerships have often been formed to hold family compounds, businesses, rental properties, and, in some cases, marketable securities. Here, the KEAG's property tax liability challenges are based on three parcels owned by the KEAG family limited partnership. Issues that relate to partnership property necessarily "arise out of the business" of the partnership. As such, the property tax liability challenges that KEAG raises here "arise out of the business" of KEAG.
Conclusion
    For the foregoing reasons, the Court finds that KEAG's representation by Oetting is proper under Small Claims Rule 8(C). This Court therefore DENIES the State Board's motion for summary judgment.

Footnote: The State Board, in an effort to save itself, argues that the sum of taxes in controversy on all three parcels should be controlling in determining the claim amount. In other words, the State Board argues that KEAG's claim is $4,930.38 ($1,381.24 + $129.44 + $929.68 + $1,377.30 + $129.08 + $$983.64).
This argument flies in the face of the language of Indiana Code § 33-3-5-12 and Indiana Tax Court Rule 16 which generally provide that this Court reviews small claims on a per year, per final determination basis. The fact that the six final determinations were grouped together for presentation to this Court will not serve as a means to throw the taxpayer out on a technicality.