DocketNumber: TC 4891.
Judges: HENRY C. BREITHAUPT, Judge.
Filed Date: 4/20/2010
Status: Precedential
Modified Date: 7/6/2016
As a preliminary matter, this court has held that such a defense is properly raised. A party cannot fail to properly avail itself of the proceedings in the Magistrate Division and, in the face of a dismissal, appeal to the Regular Division and have its procedural failings in the Magistrate Division ignored, at least if the failing is raised as a defense or affirmative defense by *Page 2
the other party. Freitag v. Department of Revenue,
There is some confusion in the decisions of the court, however, as to what scope of review should be applied in the Regular Division as to any such alleged procedural failing of a party in the Magistrate Division. Norpac suggests that the review is not limited to an abuse of discretion standard. See Norpac,
The court has reviewed its prior cases and the reasoning of those cases. Based on that review, the court is of the opinion that the proper approach is for the decision in such cases to be limited, at least in the first instance, to the question of whether there was a procedural failing by a party that is dispositive.1
As the court in Norpac observed, the legislature has limited the scope of review of the Tax Court in certain instances where another agency is vested with discretionary authority to make a decision. See Norpac,
The parties should have the opportunity to make a record in the Regular Division as to the facts relevant to the alleged prior procedural failing.2 The review of the judge of the Regular Division should be de novo on that question and not whether the action of the magistrate constituted an abuse of discretion.
After reviewing the cross-motions and being fully advised of the premises, the court finds that such request should be granted. Now, therefore,
IT IS ORDERED that Defendant's Motion for Summary Judgment is denied; and
IT IS FURTHER ORDERED that Plaintiffs' Cross-Motion for Partial Summary Judgment is granted.
Dated this ___ day of April, 2010.
THIS DOCUMENT WAS SIGNED BY JUDGE HENRY C. BREITHAUPTON APRIL 20, 2010, AND FILED THE SAME DAY. THIS IS A PUBLISHEDDOCUMENT.