Allen Cnty. Assessor v. Verizon Data Servs., Inc.

• Citation: 43 N.E.3d 705
• Decision Date: 30 October 2015
• Docket Number: No. 49T10–1408–TA–00053.,49T10–1408–TA–00053.
• Parties: ALLEN COUNTY ASSESSOR, Petitioner, v. VERIZON DATA SERVICES, INC., Respondent.
• Court: Tax Court of Indiana

43 N.E.3d 705

ALLEN COUNTY ASSESSOR, Petitioner

v.VERIZON DATA SERVICES, INC., Respondent.

No. 49T10–1408–TA–00053.

Tax Court of Indiana.

Oct. 30, 2015.

Mark E. Giaquinta, Melanie L. Farr, Sarah L. Schreiber, Haller & Colvin, P.C., Fort Wayne, IN, Attorneys for Petitioner.

Jeffrey T. Bennett, Bradley D. Hasler, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Respondent.

Opinion

WENTWORTH

, J.

The Allen County Assessor claims that the Indiana Board of Tax Review erred in granting Verizon Data Services, Inc.'s motion for summary judgment and denying the Assessor's cross-motion for summary judgment. Upon review, the Court finds that the Indiana Board did not err.

FACTS AND PROCEDURAL HISTORY

On May 15, 2007, Verizon filed its Business Tangible Personal Property Return with the Washington Township Assessor, reporting the assessed value of its personal property at $16,200,000 for the 2007 tax year. On September 17, 2007, the Township Assessor timely issued a Notice of Assessment/Change (Form 113/PP) to Verizon increasing the assessment to $50,261,538.

By letter dated October 9, 2007, Verizon initiated the administrative appeals process by asking the Township Assessor to schedule a meeting regarding the Form 113/PP. (See Cert. Admin. R. at 217.) On October 12, 2007, the secretary of Allen County's Property Tax Assessment Board of Appeals (PTABOA) sent the following e-mail to Verizon:

Please be advised, Washington Township will not be scheduling a meeting to discuss the 2007 personal property assessment for Verizon in Allen County. As you are aware, the 2005 & 2006¹ assessments are under appeal with the Indiana State Tax Board. Pending a determination regarding the 2005 & 2006 assessments, a meeting to discuss the 2007 assessment will be ‘on hold’.

Please let me know if you have any questions.

(Cert. Admin. R. at 135 (footnote added).) Verizon did not respond to the e-mail. On December 28, 2010, the Indiana Board resolved Verizon's 2005 appeal.

On July 26, 2012, Verizon filed a “Request For Relief Pursuant to Indiana Code § 6–1.1–16–1

” with the PTABOA, requesting that it issue a determination that the assessed value of Verizon's personal property was $16,200,000 for the 2007 tax year. (See Cert. Admin. R. at 222–24.) Verizon asserted that it was entitled to that valuation because its 2007 personal property return was in substantial compliance with the applicable statutes and regulations and the PTABOA had not changed its assessment before October 30, 2007, as was required by Indiana Code § 6–1.1–16–1(a)(2)(A)

. (See Cert. Admin. R. at 223.)

On July 30, 2012, before the PTABOA responded to its Request, Verizon filed a Petition for Review (Form 131) with the Indiana Board. On November 5, 2012, Verizon filed a Motion for Summary Judgment, and the Assessor filed a Cross–Motion for Summary Judgment on January 9, 2013.² The Indiana Board held a hearing on June 12, 2013, during which Verizon claimed that its personal property should be assessed at $16,200,000 because the PTABOA failed to comply with the deadlines set forth in Indiana Code §§ 6–1.1–16–1

to –4 (Chapter 16). (See Cert. Admin. R. at 148–55.) In response, the Assessor asserted that Verizon's motion should be denied because it had acquiesced to the delay and thus waived its right to have a PTABOA hearing within the statutorily prescribed period and had failed to show that it suffered any prejudice. (See Cert. Admin. R. at 114–18, 162–64, 177–78.) The Assessor also claimed that she was entitled to judgment as a matter of law because Verizon's Form 131 was untimely filed pursuant to Indiana Code § 6–1.1–15–1 (Section 15–1) and § 6–1.1–15–3 (Section 15–3). (See Cert. Admin. R. at 109–14, 129–37, 157–64, 194–96.) On July 3, 2014, the Indiana Board granted Verizon's Motion for Summary Judgment and denied the Assessor's Cross–Motion for Summary Judgment.

On August 14, 2014, the Assessor initiated this original tax appeal. The Court heard oral argument on April 23, 2015. Additional facts will be supplied if necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind.Tax Ct.2010)

. The Court will reverse a final determination if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of or short of statutory jurisdiction, authority, or limitations; without observance of the procedure required by law; or unsupported by substantial or reliable evidence. Ind.Code § 33–26–6–6(e)(1)–(5) (2015).

DISCUSSION

On appeal, the Assessor claims that the Indiana Board's final determination must be reversed because it erred in determining that the Chapter 16 rather than the Section 15–1 deadlines governed the PTABOA's appeals process. (See Pet'r Br. Supp. V. Pet. Judicial Review Final Determination [Indiana Board] (“Pet'r Br.”) at 7–8.) Alternatively, the Assessor claims that the Chapter 16 deadlines should not be enforced because Verizon waived its right to invoke the deadlines and failed to show that it suffered any prejudice. (See Pet'r Br. at 8–13.) Moreover, the Assessor claims that Indiana case law indicates that the merits should be reached and that Verizon's Form 131 was timely filed because it misinterpreted Sections 15–1 and 15–3. (See Pet'r Br. at 10–11, 13–17.)

1. The Section 15–1 and Chapter 16 Deadlines

In a companion case issued concurrently with this decision, the Court has held that for purposes of personal property, the Chapter 16 deadlines applied not only to the assessment process, but also to the appeals process. See Washington Tow. Assessor v. Verizon Data Servs., Inc. (Verizon I ), No. 49T10–1102–TA–00013, 43 N.E.3d 697, 699–703, 2015 WL 6638847, at **2–5 (Ind.Tax Ct. Oct. 30, 2015)

. Accordingly, the Indiana Board did not err in determining that Chapter 16 governed the PTABOA's appeals process.³

2. Waiver

The Assessor contends in the alternative that the Indiana Board erred in granting Verizon's summary judgment motion because there was a genuine issue of material fact regarding Verizon's waiver of those deadlines. (See Pet'r Br. at 8–10.) More specifically, the Assessor explains that when the PTABOA sent the e-mail to Verizon stating that its proceedings would be stayed until the Indiana Board resolved Verizon's 2005 appeal, Verizon waived the right to invoke the Chapter 16 deadlines by acquiescing in the delay for nearly five years.⁴ (See Pet'r Br. at 9–10; Oral Arg. Tr. at 29

–30.)

“Waiver is an intentional relinquishment of a known right, requiring both knowledge of the existence of the right and intention to relinquish it.” Pohle v. Cheatham, 724 N.E.2d 655, 659 (Ind.Ct.App.2000)

(citation omitted). Waiver may be shown by express or implied consent, and, therefore, the right may be lost by a course of conduct which estops its assertion. Id. Nonetheless, because waiver is an affirmative act, a party's mere silence, acquiescence, or inactivity does not constitute waiver unless the party has a duty to speak or act. Id. Thus, the resolution of this issue depends on whether Verizon had a duty to speak or act under Chapter 16.

When Verizon appealed the Township Assessor's Form 113/PP on October 9, 2007 to the PTABOA, Chapter 16 required the PTABOA to issue a final determination regarding the assessment change on or before October 30, 2007. See Ind.Code § 6–1.1–16–1(a)(2)(A) (2007)

(amended 2008). See also

Verizon I, No. 49T10–1102–TA–00013, 43 N.E.3d at 699–703. When the PTABOA failed to issue a final determination by that date, Chapter 16 provided that the Township Assessor could act to preserve its assessment change by filing a petition for review with the Indiana Board in the manner and period provided in Indiana Code § 6–1.1–15–3(d). See Ind.Code § 6–1.1–16–2(a) (2007) (amended 2008). The Township Assessor, however, did not file a petition for review with the Indiana Board and, as a result, the assessed value reported on Verizon's 2007 personal property return was automatically reinstated as the final value. See I.C. § 6–1.1–16–1(b) (providing that when a county property tax assessment board of appeals “fails to change an assessment and give notice of the change within the time prescribed by [Indiana Code § 6–1.1–16–1 ], the assessed value claimed by the taxpayer on the personal property return is final”). Thus, while the provisions of Chapter 16 indicate that the PTABOA and the Township Assessor had a duty to act or speak, they do not indicate that Verizon had any such duty when the PTABOA informed Verizon of the Township Assessor's intent to delay their meeting.⁵

Therefore, the Indiana Board did not err in determining that there was no genuine issue of material fact regarding Verizon's waiver of the Chapter 16 deadlines.

3. Prejudice

Next, the Assessor contends that the Indiana Board erred in granting Verizon's motion for summary judgment because “Verizon, has not, and indeed cannot, show any prejudice resulting from the PTABOA's failure to hold a hearing prior to October 30, 2007.” (Pet'r Br. at 11–12.) The Assessor accordingly maintains that Verizon “should [not] be permitted to reap a $34,000,000 windfall in the assessment of its business personal property because a contested date was missed.” (See Pet'r Br. at 12.)

As explained above, Chapter 16 provided the Assessor with a mechanism to preserve its assessment change when the PTABOA failed to issue a final determination within the statutorily prescribed period: the Assessor simply needed to file a petition for review with the Indiana Board. See I.C. § 6–1.1–16–2(a)

. The Assessor did not utilize that mechanism and, as a result, the assessed value reported on Verizon's 2007 return was automatically reinstated as the final value pursuant to Indiana Code § 6–1.1–16–1(b). Nothing within the provisions of Chapter 16 suggests, however, that the...