DuSablon v. Kaufman

• Decision Date: 04 December 2020
• Docket Number: Cause No. 20T-TA-00004
• Citation: 160 N.E.3d 587
• Parties: Mathew R. DUSABLON and Vanessa A. DuSablon, Petitioners, v. Katie KAUFMAN, in her official capacity as the Jackson County Assessor, Respondent.
• Court: Indiana Tax Court

160 N.E.3d 587

Mathew R. DUSABLON and Vanessa A. DuSablon, Petitioners,

v.Katie KAUFMAN, in her official capacity as the Jackson County Assessor, Respondent.

Cause No. 20T-TA-00004

Tax Court of Indiana.

Filed December 4, 2020

PETITIONERS APPEARING PRO SE: MATHEW R. DuSABLON, VANESSA A. DuSABLON, Seymour, IN

ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR., ATTORNEY GENERAL OF INDIANA, ROBERT A. ROWLETT, DEPUTY ATTORNEY GENERAL, Indianapolis, IN

FISHER, Senior Judge

Mathew R. and Vanessa A. DuSablon have challenged the Indiana Board of Tax Review's final determination valuing their residential property for the 2018 tax year. Upon review, the Court affirms the Indiana Board's final determination.

FACTS AND PROCEDURAL HISTORY

The DuSablons own a house, and the 10.28 acres of land upon which it sits, just outside of Seymour, Indiana. (See generally Cert. Admin. R. at 1 - 4.) The DuSablons purchased their property in December of 2014 for $380,000. (See Cert. Admin. R. at 3, 37, 125, 127-28.)

For the 2018 tax year, the DuSablons' property was assessed at $372,000 ($28,500 for land and $343,500 for improvements). (See Cert. Admin. R. at 2.) The DuSablons appealed the assessment to the Jackson County Property Tax Assessment Board of Appeals ("PTABOA"). On December 11, 2018, the PTABOA reduced the assessment to $364,300 ($28,500 for land and $335,800 for improvements). (See Cert. Admin. R. at 2 - 3.) Still dissatisfied, the DuSablons sought review with the Indiana Board.

The Indiana Board held a hearing on the DuSablons' appeal on September 18, 2019. During the hearing, the Jackson County Assessor conceded that she bore the burden of proving that the DuSablons' assessment was correct because it had increased by more than 5% between 2017 and 2018.¹ (See Cert. Admin. R. at 96.) (See also Cert. Admin. R. at 3 (indicating that in 2017, the assessed value of the DuSablons' property was $318,700 ($30,500 for the land and $288,200 for the improvements).) To meet her burden, the Assessor presented an appraisal report, along with the testimony of its preparer, Richard Borges, an Indiana certified general appraiser and member of the Appraisal Institute. (See Cert. Admin. R. at 55-74, 103-06.) The appraisal report, completed in conformance with the Uniform Standards of Professional Appraisal Practice ("USPAP"), estimated the value of the DuSablons' property to be $400,000 as of January 1, 2018. (See Cert. Admin. R. at 56, 60.) Borges explained that he arrived at this value using a sales comparison approach that evaluated the sales of three comparable properties near the subject property. (See, e.g., Cert. Admin. R. at 60, 64-65, 74, 104-05.)

In rebuttal, the DuSablons argued that their assessment was the product of bias because:

1) for years they have had to contact the Assessor to correct mistakes on the property record card;

2) no improvements have been made to their property that justified any assessment increase, let alone one of 17%;

3) they presented – but the PTABOA ignored – the property record cards of three properties that were better than theirs, but assessed for less;

4) when the PTABOA reduced their assessment, much of the form it used was incomplete;

5) the comparables that Borges used in his appraisal were not comparable.

(See Cert. Admin. R. at 113-18, 129-30.) In conjunction with their argument, the DuSablons presented the Indiana Board with copies of seven property record cards: one for their property, three for the properties that Borges used as comparables in his appraisal report, and three for properties that they claimed were better comparables but were assessed for less. (See Cert. Admin. R. at 36-44, 49-54, 114-16.) The DuSablons also presented a copy of the PTABOA's Form 115 that reduced their assessment from $372,000 to $364,300. (See Cert. Admin. R. at 36, 45-48.)

On December 16, 2019, the Indiana Board issued a final determination upholding the assessment of the DuSablons' property. In its final determination, the Indiana Board found that the Assessor's appraisal used "a generally accepted valuation methodology – the sales comparison approach – to estimate the [DuSablons'] property[ ] value as of the relevant ... valuation date. [Borges] explained why the properties he used [in that approach] were comparable to the DuSablons' property, and he adjusted their sales prices to account for relevant differences." (Cert. Admin. R. at 89 ¶ 23.) The DuSablons' response to this evidence, the Indiana Board explained, were mere assertions that they disagreed with Borges' adjustments and that their comparables were better than his. (See Cert. Admin. R. at 89-90 ¶¶ 24, 26.) Moreover, the Indiana Board continued, the DuSablons failed to present any evidence to show what they believed the proper valuation of their property should be. (Cert. Admin. R. at 89-90 ¶ 25.) As a result, the Indiana Board held that the DuSablons failed to impeach the Assessor's appraisal and upheld the PTABOA's assessment. (Cert. Admin. R. at 89 ¶¶ 23-24.)

The DuSablons subsequently initiated an original tax appeal. The Court took the matter under advisement on October 2, 2020, after all briefing was complete. Additional facts will be supplied when necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Thus, to prevail in their appeal, the DuSablons must demonstrate to the Court that the Indiana Board's final determination 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. See IND. CODE § 33-26-6-6(e)(1)-(5) (2020).

ANALYSIS

On appeal, the DuSablons describe themselves as the victims of an abusive assessment system that has been fraught with invasive property inspections, governmental failures to follow protocol, and smear campaigns designed to taint their reputations. (See, e.g., Pet'rs' Resp. Resp't Br. ("Pet'rs' Reply Br.") at 2-3 ¶¶ 3-5, 11 ¶ 11.) In order to distill the DuSablons' numerous complaints about the system into a productive discussion regarding the assessment of their property, the Court restates the issues on appeal as whether the DuSablons: 1) successfully discredited Borges and his appraisal report and 2) provided their own probative evidence that would support a reduction to their property's assessment.

1. CREDIBILITY

a. Borges' Personal Credibility

The DuSablons first claim that they "efficaciously eroded all of Borges' credibility" as a witness when they elicited testimony from him during the Indiana Board hearing that "he received personal tax relief from the [Assessor] for the same tax year and in the same county[.]" (Pet'rs' Reply Br. at 9 ¶ 6(k)(i).) Accordingly, they contend that the Indiana Board should have deemed his testimonial presentation and appraisal report " ‘null and void at the moment of [his] unethical exposure’ " and that now, on appeal, the Court "has no ethical option but to side in [their] favor[.]" (See Pet'rs' Reply Br. at 9 ¶ 6(k)(iii), 12 at ¶ 16.) (See also Pet'rs' Reply Br. at 9 ¶ 6(k)(iv) (contending that the Indiana Board should have "see[n] Borges for what he really is").)

The DuSablons' claim is an explicit request for the Court to reassess Borges' credibility as a witness. The Court must refrain from doing so, however, absent an abuse of discretion. Southlake Indiana, LLC v. Lake Cnty. Assessor, 135 N.E.3d 692, 696 (Ind. Tax Ct. 2019) (explaining that when reviewing Indiana Board final determinations on appeal, the Court "may not reweigh or assess the credibility of evidence absent finding an abuse of discretion"), review denied. To demonstrate an abuse of discretion, the DuSablons must show the Court that in finding Borges to be a credible witness, the Indiana Board acted either against the logic and effect of the facts and circumstances before it or in contravention of the law. See Kooshtard Prop. I, LLC v. Monroe Cnty. Assessor, 38 N.E.3d 750, 753 (Ind. Tax Ct. 2015). The DuSablons have done neither.

During the Indiana Board hearing, the entire exchange between the DuSablons and Borges regarding his qualifications as a witness was as follows:

Q [by the DuSablons]: Have you ever had to appeal a property tax assessment that you personally, or any of your businesses or associated with in Jackson County?

A [by Borges]: Yes.

Q: Would you say one or more?

A: I ... I think two. I, one that my wife and I owned, and then another I did an appeal for my mother on a property ... maybe 15 years ago.

Q: So only two since 1974 [sic.]?

A: Are you asking about properties with which I am personally connected somehow or [for] a client?

Q: For any of your businesses.

Q: Any business associations, any financial interest.

A: I have, I handled appeals as a tax representative for other parties, who are my clients, and I have done appraisals for assessors and for property owners related to assessment appeal cases, but the two that I mentioned are the two that are properties with which I had some sort of personal interest in Jackson County.

Q: So, in those instances, did you have favorable tax relief?

A: Yes.

Q: Can you recall by how much?

A: I don't really have a good recall of the one that I did for my mother a long time ago. The one within the last year was maybe about, about $30,000.

(Cert. Admin. R. at 107.) The DuSablons, however, never objected to Borges' having been called as a witness nor did they provide the Indiana Board with any explanation why Borges' two successful property tax appeals over the course of the last fifteen years destroyed his credibility as an appraisal witness in their case. (See Cert. Admin. R. at 108-30.) In fact, it was only in their briefing to this...