Attorneys for Petitioners
Attorneys for Respondent
Steve Carter Jeffrey T. Bennett
Attorney General of Indiana Hamish S. Cohen
David L. Steiner Steven G. Cracraft
Deputy Attorney General of Indiana Indianapolis, Indiana
Nandita G. Shepherd
Department of Local Government Finance
Attorneys for North Township Assessor
Brian P. Popp
Attorneys for the Lake County Property Tax Assessment
Board of Appeals and for the Lake County Assessor
John S. Dull
Crown Point, Indiana
Attorney for the Lake County Auditor and Treasurer
Indiana property tax law contains appeal provisions that allow taxpayers to challenge assessments,
provisions that provide for full hearing and judicial determination at which a taxpayer
may raise any and all constitutional objections to the tax. The procedures
for doing so are set forth in Indiana Code Section 6-1.1-15-1 and Indiana
Administrative Code Title 50, Regulations 4.2-3-3 and 4. On a form denominated
Form 130, Petition to the County Board of Review for Review of Assessment,
a taxpayer who disagree[s] with the assessment made by an assessing official sets
forth [t]he reasons why the petitioner believes that the assessment determination by the
township assessor is erroneous. Ind. Admin. Code tit. 50, r. 4.2-3-3 (1996).
The petition is reviewed by local and state property tax authorities
See footnote in this
case, the Lake County Board of Review and the State Board of Tax
CommissionersSee footnote and is subject to judicial review, as provided by applicable statutes and regul
BP challenged the 1999 assessments by filing appeals on Form 130 with the
appropriate tax officials on May 10, 1999.
The procedures set forth in Indiana Code Section 6-1.1-15-1 and Indiana Admi
Title 50, Regulation 4.2-3-3 and Form 130, however, are only available to challenge
a current years assessment. To challenge its assessments for the 1995-1998 period,
therefore, BP used a different set of procedures and forms.
Another statute and several regulations, Indiana Code Section 6-1.1-15-12 and Indiana Administrative Code
Title 50, Regulations 4.2-3-4, 12 and 14, provide taxpayers with the opportunity to
appeal assessments on a form denominated Form 133, Petition for Correction of Error,
within three years from the date the taxes were first due. BP
challenged the 1995-1998 assessments by filing appeals on Form 133 with the appropriate
tax officials on May 10, 1999. It is these filings that are
the subject of this case.
The grounds on which challenges may be made on Form 133 are more
limited than challenges to current assessments on Form 130. See Ind. Code
§ 6-1.1-15-12 (2004). One ground on which a challenge may be made
on Form 133 is where the taxpayer contends that [t]he taxes, as a
matter of law, were illegal. I.C. § 6-1.1-15-12(a)(6). That is the
ground upon which BP Amoco relies, i.e., it contends that it is entitled
to a refund of a portion of the taxes it paid on its
personal property for the years 1995-1998 because the taxes, as a matter of
law, were illegal.
BPs challenges were denied by both local and state property tax authorities, in
each case without a hearing, on grounds that the relief BP sought was
not available under Indiana Code Section 6-1.1-15-12 and Form 133. BP then
sought judicial review in the Indiana Tax Court. The Tax Court concluded
that while [t]he claims raised in BPs Forms 133 may well be inappropriate
for a Form 133, BP Amoco was entitled to a hearing to establish
an administrative record that would support the allegations contained within its complaint.
BP Amoco Corp. v. Lake Co. Property Tax Assessment Bd., 785 N.E.2d 1216,
1220, 1220 n.5 (Ind. Tax Ct. 2003).
The local and state property tax authorities sought, and we granted, review of
the Tax Courts decision. Lake Co. Prop. Tax Assessment Bd. of Appeals
v. BP Amoco Corp., 804 N.E.2d 749 (Ind. 2003).
[T]he taxes it paid for assessment years 1995-1998 were illegal as a matter
of law. If BP had been afforded an evidentiary hearing before the
Board, it would have presented objective evidence that Lake County has systematically underassessed
property in Lake County to the detriment of BP and that BP is
entitled to refunds based on the illegal systematic underassessment.
Id. at 24-25 (citation and footnote omitted).
The property tax authorities respond that BP was not entitled to the hearing
ordered by the Tax Court because under no set of facts was it
entitled to the retrospective relief it sought. As set forth above, BPs
claim to retrospective relief is predicated on its claim that its taxes were
illegal as a matter of law. But the taxing authorities argue that
BP does not in fact contend that the taxes it challenges are illegal
as a matter of law.
Instead, without any precedent, BP seeks to expand the meaning of illegal as
a matter of law beyond a determination of the legality of the tax
itself to a determination of the legality of the assessments on which the
amount of its [personal property taxes were] calculated. The statutes, however, contain
no language that would expand their application beyond the challenged tax to the
assessments used to calculate the amount of the tax.
Br. of Petr Lake Co. at 13.
The tax authorities maintain that BP Amoco does not claim that any particular
tax law is illegal; rather it asks for an equalization adjustment. And,
they contend, neither statutes nor judicial precedent provide authority for a taxpayer to
claim an individual equalization adjustment. Br. of Appellant North Township Assessor at
The taxing authorities seem to argue that appeals on Form 133 using the
ground of illegal as a matter of law can only be used to
challenge the facial illegality of a tax itself. For the reasons discussed
below, we do not agree with that proposition. The Boards regulation in
effect at the time of the assessments in question here provides for the
use of Form 133 in certain circumstances where the procedure or method used
in determining an assessment was erroneous. See Ind. Admin. Code tit. 50,
r. 4.2-3-12 (1992 & 1996) (Regulation 3-12). But we do agree that
BP is not entitled to the relief provided by Regulation 3-12 on the
grounds it asserts here.
Our analysis turns a large degree on our interpretation of Regulation 3-12.
It is, therefore, important to note that this regulation was repealed on April
1, 2000, when the State Board of Tax Commissioners promulgated a new regulation
in response to this courts decision in
State Bd. of Tax Commrs v.
Town of St. John.
See 23 Ind. Reg. 1608 (2000). While
we express no opinion on the operation of appeals of property tax assessments
made following the repeal, we do not discern anything in current law that
is inconsistent with Regulation 3-12 or the interpretation we give it today.
The relevant provisions of Regulation 3-12 (which incorporate the relevant provisions of the
statute) are as follows:
Sec. 12. (a) . . . A taxpayer who claims that an error in an assessment entitles them to a refund must file both a Form No. 133 (50 IAC 4.2-2-9), for correction of the assessment and a Form No. 17T (50 IAC 4.2-2-9), for a refund. A fact to keep in mind when dealing with these forms is that they are not to be used to challenge the methodology used in generating an assessment. There are appeal provisions for that purpose.
. . .
(c) Form 133 required. Form No. 133 (Petition for Correction of Error) (50 IAC 4.2-2-9), is to be filed in duplicate with the auditor of the county where the assessment was made to correct one (1) of the following errors in the tax duplicate:
(1) The taxes, as a matter of law, were illegal.
(2) There was a mathematical error in computing an assessment.
(3) Through an error of omission by any state or county officer the taxpayer was not given credit for an exemption or deduction permitted by law.
. . .
(g) Grounds for filing Form No. 133. The following are examples of grounds for the filing of a petition for correction of error (Form No. 133) (50 IAC 4.2-2-9) and a petition for refund of taxes (Form 17T) (50 IAC 4.2-2-9):
(1) The taxes, as a matter of law, were illegal (subsection (c)).
(A) Property that was entered on the personal property tax return as taxable is not subject to property taxes, and for which no application for exemption is required.
Subsections (a) and (g)(1)(B), (C), and (D) of Regulation 3-12, when read together,
make clear the way in which the correction of error mechanisms operated.
Subsection (g)(1)(B) of Regulation 3-12 specified that Taxpayer A, who had used the
appeal provisions, Regulation 3-12(a), of Form 130 to challenge successfully in the Tax
Court a procedure or method used in determining [its] assessments[,] was entitled to
a refund for a given year because when (but only when) the Tax
Court ruled in Taxpayer As favor, its assessments became illegal as a matter
of law. Subsection (g)(1)(C) extended a right to a correction of assessment
and a refund to other taxpayers who had suits pending in the Tax
Court on the same facts and challenging the same procedure or method as
a taxpayer successful under Subsection (g)(1)(B)because when (but only when) the Tax Court
ruled in Taxpayer As favor, Taxpayer Bs assessments became illegal as a matter
of law. And Subsection (g)(1)(D) extended a correction of assessment and right
to a refund to other taxpayers on the same facts and using the
same procedure or method as a taxpayer successful under Subsection (g)(1)(B)because when (but
only when) the Tax Court ruled in Taxpayer As favor, Taxpayer Cs assessments
became illegal as a matter of law.
The two cases cited by the Tax Court as examples of where taxpayers
have been awarded relief who have been able to show[ ] by probative
evidence that their property is assessed and taxed differently than comparable properties support
this analysis. See BP Amoco Corp. v. Lake County Prop. Tax Assessment
Bd. of Appeals, 785 N.E.2d 1216, 1219 (2003). In both Zakutansky v.
State Bd. of Tax Commrs, 691 N.E.2d 1365 (Ind. Tax Ct. 1998), and
Vonnegut v. State Board of Tax Commrs, 672 N.E.2d 87 (Ind. Tax Ct.
1996), the taxpayers prosecuted their appeals using Form 130, not Form 133.
In short, appeals challenging the legality of assessments were required to be made
on Form 130. Assessments determined to be illegal could be corrected (and
refunds obtained) using Form 133. The names of the respective forms, set
forth above, well illustrate the distinction: Form 130 is called a Petition for
Review of Assessment; Form 133, a Petition for Correction of Error. Ind.
Admin. Code tit. 50, r. 4.2-2-9 (1992 & 1996).
BP was not entitled to file appeals on Form 133 to challenge its
1995-1998 assessments on grounds that Lake County has systematically underassessed property in Lake
County to the detriment of BP and BP is entitled to refunds based
on the illegal underassessment. Br. of BP Amoco in Response at 24-25.
BP is clearly challenging the methodology used in generating the assessment of
its property. The Regulation explicitly states that these forms . . .
are not to be used to challenge the methodology used in generating an
assessment. There are appeal provisions for that purpose. Regulation 3-12 §
12(a). BP failed to challenge the assessments in 1995-1998 within time periods
for which Form 130 was available; it is foreclosed from using Form 133
for these purposes. No hearing was required to make this determination.
BP was, of course, entitled to use the appeal provisions referred to in
Regulation 3-12 to challenge the methodology used in generating its 1999 assessment and
did so using the appeal provisions set forth in Indiana Code Section 6-1.1-15-1
and Indiana Administrative Code Title 50, Regulation 4.2-3-3 and Form 130. Subsection
(g)(1)(B) of Regulation 3-12 made clear that if that challenge is successful, it
would be entitled to correction and refund for that year.
Shepard, C.J., and Dickson and Boehm, J.J., concur. Rucker, J., concurs in