ATTORNEY FOR PETITIONERS: ATTORNEYS FOR RESPONDENT:
GARY M. TIMPE STEVE CARTER
ATTORNEY AT LAW ATTORNEY GENERAL OF INDIANA
Indianapolis, IN Indianapolis, IN
JOHN D. SNETHEN
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
WILLIAM and DOROTHY LONG, )
v. ) Cause No. 49T10-0404-TA-20
WAYNE TOWNSHIP ASSESSOR, )
ORDER ON THE PARTIES CROSS-MOTIONS
FOR SUMMARY JUDGMENT
January 28, 2005
The Petitioners, William and Dorothy Long (the Longs), appeal from a final determination
of the Indiana Board of Tax Review (Indiana Board) valuing their real property
for the March 1, 2002 assessment date. The matter is currently before
the Court on the parties cross-motions for summary judgment. The sole issue
for this Courts review is whether the Longs made a prima facie showing
that their assessment was erroneous.
FACTS AND PROCEDURAL HISTORY
The Longs own a multi-family, row-type dwelling at 32-34 North Sheffield,
Indianapolis, Indiana. For the 2002 assessment, the Wayne Township Assessor (Assessor) assigned
the Longs property an assessed value of $87,800 (land at $5,400 and the
improvement at $82,400).
Believing this value to be too high, the Longs appealed the assessment to
the Indiana Board. On December 16, 2003, the Indiana Board conducted a
hearing on the Longs appeal. On March 15, 2004, the Indiana Board
issued a final determination affirming the assessment.
The Longs subsequently filed an appeal with this Court. On July 27,
2004, the Indiana Board filed a motion for summary judgment. The Longs
filed a cross-motion for summary judgment on September 27, 2004.
On November 23, 2004, the parties waived a hearing on their motions for
summary judgment. Instead, the parties requested that the matter be resolved on
the basis of their briefs. Additional facts will be supplied as necessary.
STANDARD OF REVIEW
This Court gives great deference to final determinations of the Indiana Board.
Wittenberg Lutheran Vill. Endowment Corp. v. Lake County Prop. Tax Assessment Bd. of
Appeals, 782 N.E.2d 483, 486 (Ind. Tax Ct. 2003), review denied. Consequently,
the Court will reverse a final determination of the Indiana Board only if
(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 Supp. 2004).
The burden of demonstrating the invalidity of an Indiana Board final determination rests
with the challenging party. See Osolo Township Assessor v. Elkhart Maple Lane
Assocs., L.P., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). To meet
this burden, the challenging party must present a prima facie case, or one
in which the evidence is sufficient to establish a given fact and which
if not contradicted will remain sufficient. Lacy Diversified Indus., Ltd. v. Dept
of Local Govt Fin., 799 N.E.2d 1215, 1218-19 (Ind. Tax Ct. 2003) (citation
omitted). When presenting a prima facie case, the challenging party must first
offer probative evidence concerning the alleged error. See King Indus. Corp. v.
State Bd. of Tax Comm'rs, 699 N.E.2d 338, 343 (Ind. Tax Ct. 1998);
Whitley Prods., Inc. v. State Bd. of Tax Comm'rs, 704 N.E.2d 1113, 1119
(Ind. Tax Ct. 1998), review denied. Only after such evidence has been
produced does the burden shift to the opposing party to rebut the evidence.
See Loveless Const. Co. v. State Bd. of Tax Comm'rs, 695 N.E.2d
1045, 1049 (Ind. Tax Ct. 1998), review denied.
The Longs contend that the Indiana Boards final determination is
not supported by substantial evidence. More specifically, they contend that the Indiana
Board ignored their evidence that demonstrated their propertys assessed value greatly exceeded its
market value. The Assessor contends, on the other hand, that the Longs
evidence did not have any probative value and therefore they failed to make
a prima facie case. As a result, the Assessor asserts that the
Indiana Boards final determination must be affirmed.
Under Indianas assessment system, real property is assessed on the basis of its
true tax value. See Ind. Code Ann. § 6-1.1-31-6(c) (West Supp. 2004).
True tax value is defined as [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. 2002 Real Property Assessment Manual
2 (2001) (hereinafter, Manual) (incorporated by reference at Ind. Admin. Code tit. 50,
r. 2.3-1-2 (2002 Supp.)). In turn, a propertys 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.
Id. (footnote added).
Indianas assessment regulations further explain that a propertys market value-in-use may be calculated
through the use of several approaches, all of which have been used in
the appraisal profession. 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. (footnote added).Sales Data on Comparable Properties
When using the sales comparison approach to contest an assessment, a taxpayer must
offer probative evidence regarding the market value-in-use of the subject property, as well
as the market value-in-use of comparable properties. For instance, a taxpayers 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. at
5. Nevertheless, such data must be reliable, reasonably comparable based on accepted
appraisal standards, readily available to the assessor at the time
the assessment was made, and reflect the propertys January 1,
1999, replacement cost.
See id. at 4-5 (footnote added).
To support their claim that their assessment was improper, the Longs submitted the
following evidence at the administrative hearing: 1) approximately 200 pages of documentation
on purportedly comparable properties with sales prices ranging between $35,500 and $64,200; 2)
a policy declaration from Auto-Owners Insurance indicating that for the period of February
12, 2003 through February 12, 2004, the Longs property was insured for $56,000;
and 3) an independent fee appraisal that valued the property, as of December
10, 2003, at $59,000. In examining this evidence, however, the Court determines
that the Longs have not met their burden of proof.
The Longs submitted an extensive amount of documentation on purportedly comparable properties with
sales prices ranging between $35,500 and $64,200. More specifically, the Longs submitted
three pages of handwritten notes listing 16 separate properties with their respective addresses,
owners names, dates of sale, sale prices, and location in comparison to the
subject property. (Cert. Admin. R. at 46-48.) In addition, the Longs
submitted 131 pages of property listings from the Metropolitan Indianapolis Board of Realtors
While this was a good start, the Longs made a fatal error when
they presented this evidence to the Indiana Board. Indeed, they provided little,
if any, comparison of these allegedly comparable properties to their own. For
instance, with respect to the list of 16 properties, the Longs handwritten notes
merely included comments such as similar to subject[;] this property is . .
. larger than subject [in that it] has four units and detached garage[;]
similar home[;] condition not as good as subject[;] and same area[,] smaller home[.]
(Cert. Admin. R. at 46-48.) With respect to the other 131
pages of evidence printed from the MIBOR website, the Longs provided this hand-written
statement: [w]e drove the area street by street to do our research.
We have many more sheets of listings to bear out our position,
[but] time prevents our reviewing them individually. However[,] we are presenting them
to you for your consideration. (Cert. Admin. R. at 198.) The
Longs oral testimony provides little more. (
See Cert. Admin. R. 262-63,
A taxpayers statements that another property is similar or is comparable are nothing
more than conclusions. Conclusory statements do not constitute probative evidence. Whitley
Prods., Inc., 704 N.E.2d at 1119. Rather, specific reasons must be provided
as to why a taxpayer believes a property is comparable. Lacy Diversified
Indus., Ltd., 799 N.E.2d at 1221.
The Longs argue, in turn, that [t]he whole of the evidence submitted by
the Petitioners gives the [Indiana Board] specific reasons of comparability, and the [Indiana
Board] is not limited to make [its] determination only by oral testimony[.]
The breadth of sales data in the record presents enough specific evidence.
(Petrs Mem. of Law in Supp. of [Their] Mot. and in Oppn of
Respt Mot. for Summ. J. at 4.) In addition, they claim that
[i]t is commonly recognized . . . in the residential real estate profession
that two similar sized, two-bedroom, two-bath residential dwellings located in the same neighborhood
will sell, in an arms-length transaction, for similar prices. Using this methodology,
[our] statements . . . were not merely conclusory[.] (Petrs Mem. of
Law in Supp. of [Their] Mot. and in Oppn of Respt Mot. for
Summ. J. at 5.) The Longs miss the point.
As previously stated, the party challenging an Indiana Board final determination bears the
burden of demonstrating its invalidity. Elkhart Maple Lane Assocs., L.P., 789 N.E.2d
at 111. As part of making its prima facie case, [i]t is
the taxpayers duty to walk the [Indiana Board and this] Court through every
element of [its] analysis. Clark v. Dept of Local Govt Fin., 779
N.E.2d 1277, 1282 n.4 (Ind. Tax Ct. 2002). In other words, a
taxpayer cannot generically claim without explanation that [it] made a prima facie case
then  cite to large swathes of the record as though the evidence
speaks for itself. Id. Here, it was not the Indiana Boards
responsibility to review all the documentation submitted by the Longs to determine whether
those properties were indeed comparable that duty rested with the Longs.
Thus, the Longs were responsible for explaining to the Indiana Board the characteristics
of their own property, how those characteristics compared to those of the purportedly
comparable properties, and how any differences affected the relevant market value-in-use of the
properties. The record is devoid of such explanation, and therefore the Longs
evidence carries no probative value.
2. Insurance Policy and Appraisal
At the administrative hearing, the Longs also presented two other documents to support
their claim. First, they presented an insurance policy indicating that for the
period from February 12, 2003 to February 12, 2004, their property was insured
for $56,000. Second, the Longs presented an independent fee appraisal that indicated
that, as of December 10, 2003, their property was appraised at $59,000.
Again, the Longs started out on the right course, but there is a
problem with respect to these documents that negatively affect their probative value.
Indianas assessment regulations state that for the 2002 general reassessment, a propertys assessment
was to reflect its value as of January 1, 1999. See Manual
at 4. The insurance policy and the independent appraisal, however, indicate property
values for 2003 and 2004. Consequently, the Longs were required to provide
some explanation as to how these values demonstrate, or are relevant to, the
subject propertys value as of January
1, 1999. Because the Longs
provided no such
explanation, these documents likewise do not carry any probative value.
For the aforementioned reasons, the Longs have not made a prima facie
showing that their assessment is in error. Consequently, the Court AFFIRMS the
Indiana Boards final determination. Summary judgment is thereby GRANTED in favor of
the Assessor and AGAINST the Longs.
SO ORDERED THIS 28TH DAY OF JANUARY, 2005.
Indiana Tax Court
Gary M. Timpe
TIMPE LEGAL SERVICES, LLC
4212 West 71st Street, Suite C
Indianapolis, IN 46268
Attorney General of Indiana
By: John D. Snethen
Deputy Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington St.
Indianapolis, IN 46204-2770
Summary judgment is proper only when no genuine issues of material
fact exist and the moving party is entitled to judgment as a matter
See Ind. Trial Rule 56(C). See also W.H. Paige
& Co. v. State Bd. of Tax Comm'rs, 732 N.E.2d 269, 270 (Ind.
Tax Ct. 2000). Cross motions for summary judgment do not alter this
standard. W.H. Paige, 732 N.E.2d at 270.
Nevertheless, [i]n markets in which sales are not representative of utilities,
either because the utility derived is higher than indicated sale prices, or in
markets where owners are motivated by non-market factors such as the maintenance of
a farming lifestyle even in the face of a higher use value for
some other purpose, true tax value will not equal value in exchange.
2002 Real Property Assessment Manual 2 (2001) (hereinafter, Manual) (incorporated by reference at
Ind. Admin. Code tit. 50, r. 2.3-1-2 (2002 Supp.)).
All three of these approaches, when properly processed, should produce approximately
the same estimate of value.
Id. at 3.
[A]ssessing officials are faced with the responsibility of valuing all properties
within their jurisdictions . . . and often times do not have the
data or time to apply all three approaches to each property.
As a result,
the cost approach has historically been used in mass appraisal by assessing officials
since data is available to apply it to all properties within a jurisdiction.
. . . [R]eplacement cost estimates the cost of a physical structure with
similar utility. This estimate of cost should be closely aligned with value-in-use.
Footnote: The Assessor argues that even if the Longs had made such
an explanation, these documents carry no probative value for yet another reason.
More specifically, the Assessor explains that Indianas assessment regulations provide that when contesting
an assessment, a taxpayer may only use that data that was readily available
to the assessing official
at the time the assessment was made. (Respt Br.
on its Mot. for Summ. J. at 6-7 (citing Manual at 4-5).)
Consequently, the Assessor argues that because the Longs 2003/2004 insurance policy and the
2003 appraisal did not exist at the time the assessment in this case
was made (i.e., March 1, 2002), the Longs cannot use these documents in
their assessment challenge. (Respt Br. on its Mot. for Summ. J. at
6-7.) The Court disagrees.
The Manual defines readily available, in relevant part, as reasonably imputed to be
information that the assessor should know is relative to the assessment, that the
assessor is aware exists, and could have been accessed with reasonable ease or
that the assessor could have availed himself/herself of with reasonable ease. Manual
at 5. Consequently, any information held, possessed or controlled by a taxpayer
that is not furnished to the assessor prior to the assessment date, or
otherwise made available and known to the assessor, cannot be considered readily available
to the assessor. Manual at 5 (emphasis added). Nevertheless, Indiana Code
§ 6-1.1-15-16 states that [n]otwithstanding any provision in the . . . Manual
. . . a county property tax assessment board of appeals or the
Indiana [B]oard shall consider all evidence relevant to the assessment of real property
regardless of whether the evidence was submitted to the township assessor before the
assessment of the property. Ind. Code Ann. § 6-1.1-15-16 (West Supp. 2004-2005)
(eff. 3-28-02). Consequently, under the clear meaning of the statute, the Longs
were not prohibited from submitting the insurance policy and the appraisal on the
sole basis that they were not submitted to the Assessor prior to the