Fidelity Fed. Sav. & Loan v. Jennings Cty, 49T10-0410-TA-48.

• Decision Date: 03 November 2005
• Docket Number: No. 49T10-0410-TA-48.,49T10-0410-TA-48.
• Citation: 836 N.E.2d 1075
• Parties: FIDELITY FEDERAL SAVINGS & LOAN, Petitioner, v. JENNINGS COUNTY ASSESSOR, Respondent.
• Court: Indiana Tax Court

836 N.E.2d 1075

FIDELITY FEDERAL SAVINGS & LOAN, Petitioner, v. JENNINGS COUNTY ASSESSOR, Respondent.

No. 49T10-0410-TA-48.

Tax Court of Indiana.

November 3, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Timothy J. Vrana, Attorney At Law, Columbus, for Petitioner.

Steve Carter, Attorney General of Indiana, Allen R. Morford, Deputy Attorney General, Indianapolis, for Respondent.

FISHER, J.

Fidelity Federal Savings & Loan (Fidelity) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) valuing its real property for the March 1, 2002 assessment date. The sole issue before the Court is whether the Indiana Board erred in valuing Fidelity's improvement.

FACTS AND PROCEDURAL HISTORY

Fidelity owns a bank in Jennings County, Indiana. For the 2002 assessment date, the Jennings County Assessor (Assessor) assigned Fidelity's property a true tax value of $203,300 ($49,000 for land and $154,300 for improvements).

Believing this value to be too high, Fidelity filed a Petition for Review of Assessment (Form 130) with the Jennings County Property Tax Assessment Board of Appeals (PTABOA). In its Form 130, Fidelity challenged, among other things, the Assessor's interior finish calculation. More specifically, Fidelity argued that pursuant to Indiana's Assessment Manual and Guidelines, its improvement was entitled to a reduction equivalent to approximately $10.00 per square foot to reflect the fact that it was without partitions. (See Cert. Admin. R. at 10, 48, 74.) On September 12, 2003, after conducting a hearing on the matter, the PTABOA recommended no change to the assessment.

Fidelity subsequently filed a Petition for Review of Assessment with the Indiana Board (Form 131) on October 10, 2003. In its Form 131, Fidelity again claimed it was entitled to a negative interior partitioning adjustment. The Indiana Board held a hearing on Fidelity's Form 131 on May 20, 2004. On September 14, 2004, the Indiana Board issued its final determination in which it denied Fidelity's request for relief.

Fidelity filed an original tax appeal on October 1, 2004.¹ The Court heard the parties' oral arguments on August 5, 2005. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

This Court gives great deference to final determinations of the Indiana Board when it acts within the scope of its authority. Miller Village Prop. Co. v. Indiana Bd. of Tax Review, 779 N.E.2d 986, 988 (Ind.Tax Ct.2002), review denied. Consequently, the Court will reverse a final determination of the Indiana Board only if it is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations;

(4) without observance of procedure required by law; or

(5) unsupported by substantial or reliable evidence.

IND. CODE ANN. § 33-26-6-6(e)(1)-(5) (West 2005).

The party seeking to overturn the Indiana Board's final determination bears the burden of proving its invalidity. Osolo Township Assessor v. Elkhart Maple Lane Assocs. L.P., 789 N.E.2d 109, 111 (Ind.Tax Ct.2003). In order to meet that burden, the party seeking reversal must have submitted, during the administrative hearing process, probative evidence regarding the alleged assessment error. Id. (footnote omitted). If that party meets its burden of proof and prima facie establishes that the Indiana Board's final determination is erroneous, the burden then shifts to the opposing party to rebut the challenging party's evidence. See Meridian Towers East & West v. Washington Township Assessor, 805 N.E.2d 475, 479 (Ind.Tax Ct.2003).

DISCUSSION AND ANALYSIS

Under Indiana's assessment system, real property is assessed on the basis of its "true tax value." "True tax value" does not mean fair market value, but rather "[t]he market value-in-use of a property for its current use, as reflected by the utility received by the owner or a similar user, from the property." IND. CODE ANN. § 6-1.1-31-6(c) (West Supp.2005-2006); 2002 REAL PROPERTY ASSESSMENT MANUAL (2004 Reprint) (hereinafter, Manual) (incorporated by reference at IND. ADMIN. CODE tit. 50, r. 2.3-1-2 (2002 Supp.)) at 2. In turn, a property's market value-in-use "may be thought of as the ask price of property by its owner, because this value . . . represents the utility obtained from the property, and the ask price represents how much utility must be replaced to induce the owner to abandon the property."² Manual at 2 (footnote added).

Three generally accepted appraisal techniques may be used to calculate a property's market value-in-use. See id. at 3. More specifically:

The first approach, known as the cost approach, estimates the value of the land as if vacant and then adds the depreciated cost new of the improvements to arrive at a total estimate of value. The second approach, known as the sales comparison approach, estimates the total value of the property directly by comparing it to similar, or comparable, properties that have sold in the market. The third approach, known as the income approach, is used for income producing properties that are typically rented. It converts an estimate of income, or rent, the property is expected to produce into value through a mathematical process known as capitalization.

Id. Indiana recognizes, however, that because "assessing officials are faced with the responsibility of valuing all properties within their jurisdictions during a reassessment[, they] often times do not have the data or time to apply all three approaches to each property." Id. Accordingly, the primary method for Indiana assessing officials to determine a property's market value-in-use is the cost approach.³ To that end, Indiana (through the now non-existent State Board of Tax Commissioners) has promulgated a series of guidelines that explain the application of the cost approach in detail. See REAL PROPERTY ASSESSMENT GUIDELINES FOR 2002 — VERSION A (2004 Reprint) (hereinafter, Guidelines), Books 1 and 2.⁴

A property's market value-in-use (i.e., true tax value) as ascertained through an application of the Guidelines' cost approach is presumed to be accurate. See Manual at 5. Nevertheless, that presumption is rebuttable. Thus, a taxpayer

shall be permitted to offer evidence relevant to the fair market value-in-use of the property to rebut such presumption and to establish the actual true tax value of the property as long as such information is consistent with the definition of true tax value provided in this [M]anual and was readily available to the assessor at the time the assessment was made. Such evidence may include actual construction costs, sales information regarding the subject or comparable properties, appraisals that are relevant to the market value-in-use of the property, and any other information compiled in accordance with generally accepted appraisal principles.

Id.

Whatever approach is utilized, the Manual provides that the goal, or end-result, should be the same: to ascertain a property's market value-in-use. Consequently, while "[a]ll three [] approaches, when properly processed, should produce approximately the same estimate of value[,]" id. at 3, "situations may arise that are not explained or that result in assessments that may be inconsistent with th[e] definition [of market value-in-use]. In those cases the assessor shall be expected to adjust the assessment to comply with this definition and may . . . consider additional factors . . . to accomplish th[at] adjustment." Id. at 2.

Fidelity asserts that pursuant to the instructions set forth in the Guidelines' cost approach, its improvement is entitled to a negative partitioning adjustment. The Indiana Board agrees. (Cert. Admin. R. at 22.) Nevertheless, the Indiana Board determined that it would not make the adjustment because:

The [Assessor] presented a property record card of another commercial property of similar size and general features and character, located in the same designated neighborhood. The [Assessor] presented evidence that the comparable property was sold as a vacant building in 2002 for $394,000, a sale price far exceeding the subject property's true tax value. The vacant building was [then] remodeled as a bank and sold again in 2003 for $750,000. . . . The evidence strongly suggests that the market value in exchange of the subject is most likely closer to the price of the similar nearby property converted to an identical use[.] The Board will not ignore the logic associated with the [Assessor]'s position and agrees that a partitioning adjustment is not appropriate under these circumstances.⁵

(Cert. Admin. R. at 22-23 (footnote added).) Consequently, the Indiana Board determined that the Assessor "rebutted [Fidelity's] prima facie case with market evidence showing that [Fidelity's] assessed value [wa]s not excessive." (Cert. Admin. R. at 23.) The Court, however, disagrees.

The property record card the Assessor presented at the administrative hearing indicates that the property, which was a vacant Hardee's fast-food restaurant, was sold in October 2002 for $394,000, was remodeled as a bank, and was sold the next year for $750,000. (See Cert. Admin. R. at 62.) Other than the fact that both properties function as banks, the record in this case is completely devoid of any comparison, written or oral, between the two properties.⁶

Time and time again, this Court has reminded taxpayers that as part of making a prima facie case, "[i]t is the taxpayer's duty to walk the [Indiana Board and this] Court through every element of [its] analysis." See, e.g., Clark v. Dep't of Local Gov't Fin., 779 N.E.2d 1277, 1282 n. 4 (Ind.Tax Ct.2002). Thus, a taxpayer cannot "generically claim without explanation that [it] made a prima facie case then [] cite to . . . the record as though the evidence speaks...