State ex rel. Indiana Department of Revenue v. Deaton

OPINION

MATHIAS, Judge

The Indiana Department of Revenue (the Department) appeals the dismissal of its verified motion for proceedings supplemental by the small claims division of the Shelby Superior Court. The Department filed the motion to collect a judgment lien for state income taxes owed by Timothy L. Deaton and Marie E. Deaton (the Dea-tons). As restated, the Department presents the following issue: Whether an income tax warrant entered on the clerk’s judgment record is the equivalent of a judgment that entitles the Department of Revenue to resort immediately to proceedings supplemental in a court of general jurisdiction.

We affirm.

Facts and Procedural History

The underlying facts are not well developed in the Record of Proceeding, but are undisputed. The Deatons filed a state income tax return that did not include payment of the taxes due. The Department, through administrative proceedings, established the amount of taxes and penalties owed by the Deatons. After the Deatons’ initial protest of the assessment, they did not pursue an appeal in accordance with the applicable statutes. When the Dea-tons failed to pay the taxes after the Department issued demand notices, a tax warrant was issued. The Department filed the tax warrant with the Shelby Circuit and Superior Court Clerk. The tax warrant was entered into the clerk’s docket as a judgment lien.

On January 28, 1999, the Department instituted proceedings supplemental in the small claims division of the Shelby Superi- or Court. The Department’s motion stated that it owned a “judgment” against the Deatons. R. at 10. The Déatons, by special appearance, filed a verified motion to dismiss on February 25. The motion to dismiss alleged, among other things, that the Shelby Superior Court did not have personal jurisdiction over them because the Department had not filed a complaint and obtained a judgment from that court. On March 1, the Department moved to amend its motion for proceedings supplemental to state that it owned a “judgment lien” rather than a judgment. R. at 28.

A hearing on all pending motions was held on June 29. The Deatons reiterated at the hearing that the Department had not filed a complaint in Shelby Superior Court, had not obtained a judgment from that court, and therefore lacked personal jurisdiction to pursue proceedings supplemental over them in that court. On December 17, 1999, the small claims court made a Chronological Case Summary (CCS) entry granting the Deatons’ motion to dismiss the Department’s motion for proceedings supplemental. The Department appeals that ruling, a legal question which we review de novo.

The Administrative Tax Procedures

When the Department issues an assessment, the taxpayer may protest that assessment. Ind.Code § 6-8.1-5-1 (1998). If the Department denies the protest and issues a letter of finding, the taxpayer must pursue further review by requesting a rehearing or by pursuing an appeal of the decision to the Tax Court. Id. § 6-8.1 — 6—1 (e — h); see also State v. Sproles, 672 N.E.2d 1353 (Ind.1996) (observing that taxpayers must seek administrative remedies and then pursue judicial review only in the Tax Court). The failure to pursue appellate measures through the Tax Court conclusively establishes the amount of taxes owed. Id. §§ 6 — 8.1—5—1 (i — j) & 33-3-5-11(a); Ind. Admin. Code tit. 45, r.15-5-6 (1996).

The Department then issues a demand notice. Ind.Code § 6-8.1-8-2(a). If the amount is still not paid, the Department’s next step is to issue a tax warrant. Id. § 6-8.1-8-2(b). After a prescribed period, the Department may file the tax warrant with the circuit court clerk of any county in which the person owns property. Id. § 6-8.1-8-2(c-d). The statute further provides:

(d) When the circuit court clerk receives a tax warrant from the department or the sheriff, the clerk shall record the warrant by making an entry in the judgment debtor’s column of the judgment record, listing the following:

(1) The name of the person owing the tax.

(2) The amount of the tax, interest, penalties, collection fee, sheriffs costs, clerk’s costs, and fees established under section 4(b) of this chapter when applicable.

(3) The date the warrant was filed with the clerk.

(e) When the entry is made, the total amount of the tax warrant becomes a judgment lien against the person owing the tax. The judgment lien for taxes attaches to all the person’s interest in any:

(1) chose in action in the county; and

(2) real or personal property in the county;

excepting only negotiable instruments not yet due.

Id. § 6-8.1-8-2. This administrative framework allows protest of the amounts assessed and provides for judicial review.

Judgment Lien Versus Judgment

The Department contends that the tax warrant judgment lien is the equivalent of a judgment such that it may resort immediately to proceedings supplemental. The Deatons maintain that because the Department did not file a complaint and obtain a judgment from the Shelby Superi- or Court, that court does not have personal jurisdiction over them for proceedings supplemental. By filing a timely motion to dismiss, the Deatons preserved their challenge to the Shelby Superior Court’s personal jurisdiction over them. See generally Anthem Ins. Cos. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind.2000).

Proceedings supplemental are supplemental to execution on the judgment of a specific court. Ind. Trial Rule 69(E) (“proceedings supplemental to execution may be enforced by verified motion or with affidavits in the court where the judgment is rendered ....”) (emphasis added); Stocker v. Cataldi, 521 N.E.2d 716, 718 (Ind.Ct.App.1988) (holding that the Lake Superior Court properly dismissed a complaint for proceedings supplemental because judgment was rendered in the Porter Superior Court). They are “a continuation of an underlying claim” and thus are “a nullity absent a valid judgment.” Washburn v. Tippecanoe County Office of Family and Children, 726 N.E.2d 361, 363 (Ind.Ct.App.2000).

A judgment is the result of a “court” proceeding.¹ A judgment lien is a lien, not a judgment. The Department cannot magically turn its administrative determination into the judgment of a court of general jurisdiction just because the poorly chosen term “judgment lien” is found within the statute. The most important reason for this limitation is the stark difference between the minimal service of process required for the Department’s administrative procedures and that required by constitutional due process in a court of general jurisdiction.

In tax collection administrative proceedings, service of process on the taxpayer can begin and end with a notice to the taxpayer issued only by first class mail. Ind.Code §§ 6-8.1-3-11 & 6-8.1-5-1. After no response from the taxpayer (which may well be due to non-receipt of the first class mail notice), the Department need only send out its subsequent findings and demand notice to the taxpayer by first class mail. A taxpayer who did not receive the Department’s initial first class mail notice is quite likely not to receive subsequent first class mailings, either. Under the Department’s rationale, a taxpayer’s first notice of an alleged deficiency might well be a personally served subpoena in proceedings supplemental in a court of general jurisdiction commanding appearance on pain of contempt.

In contrast, a court of general jurisdiction must obtain personal jurisdiction over a defendant through one of many Trial Rule 4 methods reasonably calculated to result in actual notice to that defendant. Only then do subsequent dispositive acts by the court become binding upon the defendant. While service of orders in proceedings supplemental can be properly obtained upon a judgment debtor through first class mail under Trial Rule 5, such service is predicated on initial service of the underlying action pursuant to Trial Rule 4.

The Department correctly points to a number of administrative income tax collection remedies available to it “without judicial proceedings.” Ind.Code § 6 — 8.1— 8-8 (1998). These remedies include seizure of bank accounts, garnishment of earnings, and direct levy against property. Id. In addition to these administrative remedies, the Department may apply to a court of general jurisdiction for a restraining order preventing the taxpayer from conducting business in Indiana, id. § 6-8.1-8-5, or for appointment of a receiver, id. § 6-8.1-8-6. Although the Department correctly asserts that these statutes do not exclude proceedings supplemental, this assertion misses the point. The Department is clearly limited in the actions it may take “without judicial proceedings.” Proceedings supplemental are not one of the three excepted actions, and with good reason.

A proceeding supplemental to execution on a judgment is an extraordinary, equitable remedy that allows a creditor to force a debtor to submit to interrogation under oath to discover assets and other interests not subject to levy and sale at law. Stuard v. Jackson & Wickliff Auctioneers, Inc., 670 N.E.2d 953, 955 (Ind.Ct.App.1996); T.R. 69(E). Conversely, the Department’s “judgment lien” is purely a creature of law, distinct from and weaker than a judgment from a court of general jurisdiction in both law and equity. The Department admitted as much when it sought to amend its motion for proceedings supplemental to recite that it held only a judgment lien and not the judgment required by Trial Rule 69(E) and Indiana Code §§ 34-55-1-1, et seq. and 34-55-8-1, et seq.²

Finally, the Department points out that the amount of the Deatons’ tax liability has been conclusively established by their failure to follow through with their administrative appeal or an appeal to the Tax Court. It suggests that requiring the commencement of a new civil action in a court of general jurisdiction serves no purpose.

Clearly, a trial court of general jurisdiction does not have the authority to hear the merits of whether or not a tax is actually owed or the amount of the tax. See generally State v. Sproles, 672 N.E.2d 1353, 1356-57 (Ind.1996) (discussing the jurisdiction of the Tax Court). Nevertheless, in view of the administrative procedure that can create a “judgment lien,” requiring that a civil action be commenced and proceed to judgment in order to foreclose that lien before the institution of proceedings supplemental is a fundamental safeguard of constitutional due process.

Our decision today should come as no surprise. Over a decade ago, this court expressed skepticism about the propriety of using proceedings supplemental in a case in which the Department filed judgment liens against a taxpayer. Emley v. Indiana Dep’t of State Revenue, 536 N.E.2d 558, 563 (Ind.Ct.App.1989) (“Although we have reservations about the appropriateness of the-Department’s use of proceedings supplemental in this case, our review is limited by the posture of the case as decided below and as it reaches us on appeal.”) More recently, this court held that a creditor who owned a judgment rendered by the United States Bankruptcy Court for the Southern District of Indiana could not enforce that judgment through proceedings supplemental in an Indiana state court of general jurisdiction without first domesticating the judgment. Borgman v. Aikens, 681 N.E.2d 213, 217-18 (Ind.Ct.App.1997). If proceedings supplemental are not available to the owner of a true judgment from a federal court sitting in Indiana until that judgment is domesticated, proceedings supplemental surely cannot be available to the Department with its judgment lien sprung from an administrative process that never reached any court, unless and until the Department files suit and obtains a judgment foreclosing its lien in an Indiana court of general jurisdiction.

For all of these reasons, the trial court’s dismissal of the Department’s motion for proceedings supplemental is affirmed.

Affirmed.

NAJAM, J., concurs. FRIEDLANDER, J., dissents with separate opinion.

1 . Judgment is defined as:

The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties. The law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceeding. Conclusion of law upon facts found or admitted by the parties or upon their default in the course of the suit. Decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein.... Decision or sentence of the law pronounced by the court and entered upon its docket, minutes or record. Determination of a court of competent jurisdiction upon matters submitted to it. Determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in such court, affirming that, upon the matters submitted for its decision, a legal duty or liability does or does not exist.

Black’s Law Dictionary 841-42 (6th ed.1990) (citations omitted).

2 . We reject the Department’s reliance on Bryant v. State, 660 N.E.2d 290 (Ind.1995), a case dealing with the criminal double jeopardy implications of payment of the controlled substance excise tax. Although the court refers to the tax assessment as a “judgment,” it is in an entirely different, criminal, constitutional context that has no relevance here.