Opinion
Rehearing Denied March 28, 1974. Opinion Superseded 316 N.E.2d 674.
Richard D. Hughes, DeFur, Voran, Hanley, Radcliff & Reed, Muncie, for plaintiffs-appellants.
Theodore L. Sendak, Atty. Gen., Curtis J. Butcher, Deputy Atty. Gen., Indianapolis, for defendants-appellees.
ROBERTSON, Presiding Judge.
The plaintiff-appellant (Ball Stores) is appealing the sustaining of the defendant-appellee's (Board) motion to dismiss Ball Stores' complaint to appeal their tax assessment. The basis for the dismissal was the trial court's ruling that there was not timely compliance with the statute governing such proceedings.
IC 6-1-31-4, Ind.Ann.Stat. § 64-1004 (Burns 1964), in pertinent part, reads:
'At any time within thirty (30) days after the board gives notice of its determination, an appeal may be taken by filing a written notice with the board asking for such appeal. . . . no such appeal shall be deemed to have commenced unless the service of such complaint . . . is made within thirty days after the board gives notice of its determination. . . .' Omitting procedural details of no consequence to the stated issues, the facts are as follows: On the 11th and 12th of May, 1972, the Board issued its final determination of assessments. Notice was sent to Ball Stores who, on the 7th of June, 1972, filed its complaint for appealing their tax assessment. The next day, June 8, 1972, the notice of appeal and necessary summons were sent by registered mail to the Board. The thirtieth days were Saturday, the 10th of June, 1972, and Sunday, the 11th of June, 1972. The Board received the notice on Monday, the 12th of June, 1972.
The three issues raised in Ball Stores overruled motion to correct errors are: that TR 6(A), IC 1971, 34-5-1-1 is applicable to the procedures set forth in IC 6-1-31-4, Ind.Ann.Stat. § 64-1004 (Burns 1964); that timely notice of appeal was given within the time prescribed in IC 6-1-31-4, Ind.Ann.Stat. § 64-1004 (Burns 1964); and the trial court erred in overruling Ball Stores' motion to correct errors.
That rule, in part, states:
We reluctantly conclude that Ball Stores' arguments are contrary to law. Pervading our decision is a reiteration of the theme of Judge Sharp's concurring opinion in Weatherhead Co. v. State Board of Tax Com'rs (1972), Ind.App., 281 N.E.2d 547, for, at first blush, the result has the appearance of harshness.
We believe Ball Stores' argument regarding the applicability of TR 6(A) is without merit: the recent case of Clary v. National Friction Products, Inc. (1972), Ind., 290 N.E.2d 53, clearly states:
'. . . The rules of trial procedure, which, as stated in Trial Rule 1, govern the procedure and practice in all courts of the state of Indiana are not applicable to proceedings before the administrative agencies nor to the proceedings requisite to invoking the jurisdiction of reviewing judicial authority.' (Our emphasis.) 290 N.E.2d 55.
Regarding Ball Stores' second argument--that even without the aid of TR 6 there was timely compliance--the law is succinctly stated in Weatherhead, supra;
'This portion of the statute plainly requires that a notice of appeal be filed with the Board within thirty days after the Board gives notice of its determination. Noncompliance with these provisions by not filing the prescribed notice has been held to defeat jurisdiction of the trial court to hear such appeal. Raab v. Ind. Bd. of Tax Comm. (1968), 143 Ind.App. 139, 238 N.E.2d 697. Furthermore, a reading of § 64-1004, supra, clearly indicates that the thirty day limitation period was intended to be more than directory. Notice must be filed within the thirty day period if the jurisdiction of the trial court is to be invoked.' 281 N.E.2d at 549.
The fact that the 30th day falls on a Saturday or a Sunday does not seem to mitigate the strict application of the rule announced in Raab and Weatherhead, supra.
Having held as we have, we cannot conclude that the trial court erred in overruling Ball Stores' motion to correct errors.
Judgment affirmed. LOWDERMILK, J., concurs.
LYBROOK, J., concurs with separate opinion.
LYBROOK, Judge (concurring).
With extreme reluctance, I concur in the holding of the majority. I do not feel that the legislature, in enacting Burns § 64-1004, intended the harsh consequence which has resulted in the instant case. However, while the decisions relied upon by the majority are distinguishable on their facts, they clearly announce the principle of strict construction of the terms of the statute.
In Weatherhead Company v. State Board of Tax Commissioners (1972), Ind.App., 281 N.E.2d 547, this court held that a notice of appeal was not 'filed' within the terms of § 64-1004 when it was deposited in the United States mail on the 30th or final day of the statutory period. The statute was interpreted as requiring actual receipt by the Board within the prescribed thirty day period. However, that case did not speak to the issue of computation of time where the final day of the filing period falls on a day when the office of the Board is closed. Absent any vehicle dealing with such contingency, a strict construction of the statute results in a shortening of time in which a party is permitted to perfect his appeal. I cannot envision that the legislature intended to effectively 'cut short' the prescribed statutory period in such a circumstance.
I conceive of no good faith argument that the Board would be in any manner prejudiced by permitting the taxpayer to file his notice of appeal on the first following working day in situations where the thirty day period expires on a day when their office is closed. A strict interpretation of the time limit, on the other hand, may often have the inequitable result of placing the taxpayer in a very narrow time frame.
In a case arising under federal administrative law, the Tenth Circuit in Johnson v. Flemming (10th Cir. 1959), 264 F.2d 322, cured this inequity through a statutory interpretation applying the considerations of liberality and leniency expressed in Federal Rule of Civil Procedure 6(a) which prevents the tolling of the time periods prescribed in the Rules on a Saturday, a Sunday, or a legal holiday. However, as expressed in Weatherhead, supra, our courts have opted for strict compliance with the procedure for review prescribed in § 64-1004.
In Clary v. National Friction Products, Inc. (1972), Ind., 290 N.E.2d 53, our Supreme Court held that a party cannot extend the time period in which to perfect an appeal from a decision of the Industrial Board by filing a motion to correct errors with the Board. In reaching this decision the court held that the rules of trial procedure are not applicable to administrative proceedings requisite to invoking the jurisdiction of a reviewing judicial authority. Hence, we are prevented from applying TR 6(A), our counterpart of the Federal rule on computation of time, to remedy the inequity which has resulted in the case at bar.
By failing to provide for the contingency which spawned this litigation, the legislature has left the taxpayer's fate to the mercy of the office hours of the State Board of Tax Commissioners. Given our court's policy of strictly construing the terms of the statute in question, the inequity which has resulted herein cannot be cured absent action by the legislature. Such an interpretation might tend to suggest that the Board could avoid an appeal by the simple expedient of locking its doors.
Our holding today rests on highly technical grounds. As Judge Sharp wrote in his concurring opinion in Weatherhead, supra:
'. . . The highly technical result in this case may well prove Charles Dickens' comment made over a century ago, that the law is an ass. Sometimes even to those of us involved in its processes it indeed appears that way.'
In the case at bar, the plaintiff filed its appeal with the court on June 7, well within the statutory period. Only the notice to the Board, mailed the following day, is in question. The notice, mailed on a Thursday, did not reach the Board until the following Monday. Board now complains that the receipt of the notice was not timely. Was the Board harmed by not receiving the notice on Saturday or Sunday when it was not open for business?
The only harm resulting from the above circumstances seems to have fallen upon the taxpayer.
'(A) Computation. In computing any period of time prescribed or allowed by these rules, by order of the court, or any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is:
(1) a Saturday;
(2) a Sunday;
(3) . . .
(4) . . .
In any event, the period runs until the end of the next day that is not a Saturday, a Sunday. . . .'