Converted file tgf

ATTORNEYS FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
STEPHEN E. DEVOE    STEVE CARTER
B. KEITH SHAKE    ATTORNEY GENERAL OF INDIANA
HENDERSON DAILY WITHROW    Indianapolis, IN
& DEVOE
Indianapolis, IN     TED J. HOLADAY
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN

_____________________________________________________________________

IN THE INDIANA TAX COURT _____________________________________________________________________

INDIANAPOLIS RACQUET CLUB, INC.,                                          )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No. 49T10-0206-TA-59
                                                                               )
WASHINGTON TOWNSHIP                                                            )              
(MARION COUNTY                                                                 ) ASSESSOR,         )
                                                                               )
    Respondent.                                                                )    
 _____________________________________________________________________

ON APPEAL FROM A FINAL DETERMINATION OF
THE INDIANA BOARD OF TAX REVIEW

NOT FOR PUBLICATION
February 6, 2004

FISHER, J.

The Petitioner, Indianapolis Racquet Club, Inc. (IRC), appeals from a final determination of the Indiana Board of Tax Review (Indiana Board) valuing its real property for the 1991 assessment year. The issues presented for this Court’s review are as follows:
I. Whether IRC timely filed a claim for refund of property taxes paid for the 1991 and 1992 tax years; and

II. Whether the Indiana Board erred by failing to adjust IRC’s base rate to reflect the absence of certain features presumed in the General Commercial Industrial (GCI) light warehouse model.

FACTS AND PROCEDURAL HISTORY
    IRC owns and operates a commercial tennis club in Washington Township, Marion County, Indiana. IRC’s facility consists of 24 tennis courts (both indoor and outdoor), a lobby, pro-shop, locker rooms, and various office and retail areas.
    On November 12, 1996, IRC filed a Form 133 Petition for Correction of Error with the Marion County Auditor. In its petition, IRC claimed that its 1991 assessment was incorrect because it did not receive the “kit building adjustment” pursuant to the provisions of State Board Instructional Bulletin 91-8. See footnote
    On September 25, 1997, the Washington Township Assessor’s office sent a letter to IRC approving IRC’s Form 133. The Assessor attached to the letter six Claims for Refund (Forms 17T) for IRC to sign and notarize. These forms calculated new assessment values on IRC’s property (based on an application of State Board Instructional Bulletin 91-8) for tax years 1989, 1990, 1991, 1992, 1993, and 1994. The Assessor also indicated that the Forms 17T were necessary “[i]n order to receive a refund for the overpayment of taxes” resulting from the assessment error. ( See Cert. Admin. R. at 15-22.)
    Eighteen months later, however, on March 12, 1999, the Marion County Board of Review (BOR) sent a notice to IRC that its Form 133 petition was untimely filed and therefore denied. Consequently, on April 13, 1999, IRC appealed the BOR’s determination to the State Board of Tax Commissioners (State Board). See footnote
    On August 16, 2001, the State Board held a hearing on IRC’s petition. On April 17, 2002, the Indiana BoardSee footnote issued a final determination in which it determined that IRC was entitled to the kit building adjustment for 1991. The Indiana Board also determined, however, that IRC was entitled to receive property tax refunds for the 1993 and 1994 tax years only.
    IRC subsequently filed an original tax appeal. This Court heard the parties’ oral arguments on October 27, 2003. 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 may 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;

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 § 33-3-5-14.8(e)(1)-(5) (West Supp. 2003). 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).

DISCUSSION
I. Refund of Taxes
IRC contends that when the Indiana Board determined that it was entitled to the kit building adjustment starting in 1991, it should have allowed a refund of property taxes paid not only for the 1993 and 1994 tax years, but for the 1991 and 1992 tax years as well. The Indiana Board argues that IRC is entitled to a refund of property taxes paid for the 1993 and 1994 tax years only. The Indiana Board is correct.
The Indiana legislature has prescribed a procedure for obtaining a refund of property taxes previously paid. Specifically, Indiana Code § 6-1.1-26-1 provides that
A person . . . may file a claim for the refund of all or a portion of a tax installment which he has paid. However, the claim must be:

(1) filed with the auditor of the county in which the taxes were originally paid;
(2) filed within three (3) years after the taxes were first due;
(3) filed on the form prescribed by the state board of accounts and approved by the state board of tax commissioners; and
(4) based upon one (1) of the following grounds:

(i) Taxes on the same property have been assessed and paid more than once for the same year.
(ii) The taxes, as a matter of law, were illegal.
(iii) There was a mathematical error either in the computation of the assessment upon which the taxes were based or in the computation of the taxes.

Ind. Code § 6-1.1-26-1 (West 2000) (amended 2002) (emphasis added). In turn, Indiana Code § 6-1.1-22-9 provides that property taxes are paid in arrears: thus, taxes on property assessed as of March 1st are paid in two installments, May 10th and November 10th, of the following year. See Ind. Code § 6-1.1-22-9(a) (West 2000). See also Ind. Code § 6-1.1-4-4 (West 2000) (amended 2003).
Under the plain meaning of these statutes, when a taxpayer seeks a refund of property taxes paid for tax year 1991, it is required to file the claim for refund within three years of the date when the taxes were first due. In other words, the taxpayer’s claim for refund must be filed by May 10th, 1995 (three years from May 10th, 1992). Likewise, a claim for refund for taxes paid for the 1992 assessment year must be filed by May 10th, 1996. In this case, IRC claims for refund for the 1991 and 1992 tax years were not filed until November 12, 1996. See footnote Thus, IRC claims for refund for the 1991 and 1992 tax years were properly denied.
IRC argues that this result is incorrect. More specifically, IRC explains that in the early 1990’s, it appealed its 1989 assessment -- and that appeal has not yet been resolved.See footnote Thus, because there is no valid assessment for 1989, there is no valid assessment to “carry forward” for tax years 1990, 1991, 1992, 1993, and 1994.See footnote Because there is no valid assessment for 1991 and 1992 yet, there is likewise no tax liability for those years. Because there is no tax liability, taxes are not yet due. Because taxes are not yet due, IRC’s claim for refund is not yet due, and therefore its Forms 17T filed for the 1991 and 1992 tax years cannot possibly be untimely. To support its claim, IRC relies on Indiana Code § 6-1.1-15-10(a):
If a petition for review to any board or an appeal to the tax court regarding an assessment or increase in assessment is pending, the taxes resulting from the assessment or increase in assessment are . . . not due until after the petition for review, or the appeal, is finally adjudicated and the assessment or increase in assessment is finally determined.

Ind. Code § 6-1.1-15-10(a) (West 2000) (amended 2002) (emphasis added). Thus, IRC argues that Indiana Code § 6-1.1-15-10(a) clearly tolls the due date of its 1991 and 1992 property tax payments, and any ancillary claims for refund for those years, until after the 1989 appeal is finally resolved. (See Pet’r Br. at 18.) The Court disagrees.
The foremost goal of statutory construction is to determine and give effect to the true intent of the legislature. Caylor-Nickel Clinic, P.C. v. Indiana Dep’t of Revenue, 569 N.E.2d 765, 768 (Ind. Tax Ct. 1991) (citations omitted), aff’d, 587 N.E.2d 1311 (Ind. 1992). To accomplish this task, the Court will not only give statutory words and phrases their plain, ordinary, and usual meaning, but it will also read a statute as a whole, and not sections or parts of it piecemeal. Roehl Transp., Inc. v. Indiana Dep’t of Revenue, 653 N.E.2d 539, 542 (Ind. Tax Ct. 1995) (citations omitted).
Of particular importance, then, is the language contained in the second half of Indiana Code § 6-1.1-15-10(a). It provides:
However, even though a petition for review or an appeal is pending, the taxpayer shall pay taxes on the tangible property when the property tax installments come due . . . The amount of taxes which the taxpayer is required to pay, pending the final determination of the assessment or increase in assessment, shall be based on . . . an amount based on the immediately preceding year’s assessment of real property if an assessment, or increase in assessment, of real property is involved.

Ind. Code § 6-1.1-15-10(a) and (a)(2).
    Under the second half of this statute, IRC was still required to pay its taxes for the 1991 and 1992 tax years when those taxes were due (i.e., on May 10th and November 10th, 1992 and May 10th and November 10th, 1993). The only difference, however, was that because IRC’s 1989 appeal was still pending, the tax amounts were calculated based on IRC’s 1988 assessment (the immediately preceding assessment not under appeal). These tax amounts represented IRC’s preliminary tax liabilities for 1991 and 1992 -- subject to a later revision (either upward or downward) based on the final disposition of its 1989 appeal. Thus, under the plain meaning of the statute, IRC’s property taxes for the 1991 and 1992 were first due in 1992 and 1993. As a result, any claims for refund for those years were required to be filed, pursuant to Indiana Code § 6-1.1-26-1, by May 10th of 1995 and May 10th of 1996.
    Furthermore, IRC’s interpretation of Indiana Code § 6-1.1-15-10(a) effectively renders Indiana Code § 6-1.1-26-1 a nullity. Indeed, under IRC’s interpretation of Indiana Code § 6-1.1-15-10(a), as long as a taxpayer appeals an assessment, the taxes stemming from that assessment are not due until after the appeal is resolved. At that point, however, there is nothing to refund; rather, the taxpayer merely pays its taxes based on the appeal’s final disposition. This Court will not construe a statute in a manner that will render another statute a nullity. See Sangralea Boys Fund, Inc. v. State Bd. of Tax Comm’rs, 686 N.E.2d 954, 958 (Ind. Tax Ct. 1997), review denied.
    For the foregoing reasons, this Court cannot say that the Indiana Board erred in denying IRC property tax refunds for tax years 1991 and 1992. Consequently, the Indiana Board’s final determination on this issue is AFFIRMED.

II. Base Rate Adjustments
    IRC also claims when the Indiana Board determined that the kit building adjustment applied to its improvement, it failed to make certain, required adjustments to the improvement’s base rate. More specifically, IRC explains that, pursuant to the assessment regulations in effect at the time, the GCI light warehouse model presumed the presence of a concrete floor slab and a certain type of lighting. IRC asserts that because its improvement lacks these features, the Indiana Board was required to adjust the GCI light warehouse model base rate. (See Pet’r Br. at 11-13.)
    IRC raised these very same issues with respect to its 1989 assessment. In a decision handed down concurrently with this decision, the Court holds that, for the 1989 tax year, IRC failed to establish a prima facie case that it was entitled to adjustments to account for the lack of a concrete floor slab and a certain type of lighting. See Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor, Case No. 49T10-0206-TA-60, slip op. at 7-14 (Ind. Tax Ct. Feb. 6, 2004). Given the fact that the Indiana Board conducted a joint administrative hearing on both IRC’s 1989 and 1991 appeals, and the argument and evidence IRC submitted to resolve the issues for the 1991 appeal were the same for the 1989 appeal, the Court now incorporates its reasoning in Indianapolis Racquet Club into this opinion. As a result, this Court finds that IRC’s evidence fails to establish a prima facie case that it is entitled to adjustments for the 1991 assessment to account for a lack of a concrete floor slab and a certain type of lighting. The Indiana Board’s final determination with respect to both of these issues is hereby AFFIRMED.
CONCLUSION
    For the foregoing reasons, the Court AFFIRMS the Indiana Board’s final determination on all counts.

Footnote: Starting March 1, 1991, the State Board of Tax Commissioners (State Board) applied a 50% reduction to the base rates of certain, light pre-engineered (or “kit”) buildings. See King Indus. Corp. v. State Bd. of Tax Comm’rs, 699 N.E.2d 338, 339 (Ind. Tax Ct. 1998). The base rate reductions (“kit building adjustments”) were to account for the low-cost of, and economical quality of material used in, these buildings. Id. State Board Instructional Bulletin 91-8 provided guidance to assessors in determining which light, pre-engineered buildings qualified for the reduction. See Componx, Inc. v. State Bd. of Tax Comm’rs, 741 N.E.2d 442-47 (Ind. Tax Ct. 2000).
The provisions of Instructional Bulletin 91-8 were later incorporated into Indiana’s 1995 assessment regulations as the General Commercial Kit (GCK) Schedule. The GCK schedule, however, provides minimum detail in describing the essential characteristics of a building to be classified under it. See Ind. Admin. Code tit. 50, r. 2.2-11-6 (Schedule A.4) (1996); Ind. Admin. Code tit. 50, r. 2.2-10-6.1(a)(1)(D) (1996). Consequently, Instructional Bulletin 91-8, although having been superseded, still offers guidance as to what buildings may qualify to be assessed under the GCK schedule.

Footnote: The administrative record indicates that the Marion County Board of Review (BOR) advised IRC that if it desired to appeal the BOR’s decision, it could do so by filing a Form 131 Petition for Review of Assessment with the State Board of Tax Commissioners (State Board). Consequently, on April 13, 1999, IRC filed a Form 131 with the State Board. On August 6, 1999, however, the State Board sent a “Notice of Defect” to IRC indicating that, among other things, the original Form 133 -- not a Form 131 – was required. While IRC did not file its corrected appeal with the State Board until November 3, 1999, IRC’s appeal was deemed filed as of April 13, 1999. ( See Cert. Admin. R. at 47.)

Footnote: On December 31, 2001, the legislature abolished the State Board of Tax Commissioners (State Board). 2001 Ind. Acts 198 § 119(b)(2). Effective January 1, 2002, the legislature created the Indiana Board of Tax Review (Indiana Board) as “successor” to the State Board. Ind. Code §§ 6-1.5-1-3; 6-1.5-4-1; 2001 Ind. Acts 198 § 95. Thus, when a final determination was issued on IRC’s appeal in April 2002, it was issued by the Indiana Board.

Footnote: In reality, the administrative record indicates that IRC did not file its Forms 17T until, at the earliest, January 25, 2001. Indeed, IRC did not sign the Forms 17T, first issued by the Washington Township Assessor in September of 1997, until January 25, 2001. ( See Cert. Admin. R. at 336-42; Resp’t Br. at 11.) Nevertheless, the Indiana Board gave IRC the benefit of the doubt and considered them filed as of November 12, 1996 – the day IRC filed its Form 133 Petition for Correction of Error. (See Resp’t Br. at 11.)

Footnote:
Simultaneous with the issuance of this opinion today, the Court also issues an opinion on IRC’s 1989 assessment challenge. See Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor, Cause No. 49T10-0206-TA-60, slip op. (Ind. Tax Ct. Feb. 6, 2004).

Footnote: In Indiana, property is not normally assessed every year. Rather, as the law stands today, there is a general state-wide assessment of property every four years. See Ind. Code § 6-1.1-4-4(a) (West Supp. 2003). During each general assessment, property is given an assessed value. This value remains the assessed value of the property for the succeeding tax years until the next general reassessment, unless the taxing authorities affirmatively act to reassess the property for the interim years between assessments. See Williams Indus. v. State Bd. of Tax Comm’rs, 648 N.E.2d 713, 715 (Ind. Tax Ct. 1995); Joyce Sportswear Co. v. State Bd. of Tax Comm’rs, 684 N.E.2d 1189, 1191 (Ind. Tax Ct. 1997), review denied; Ind. Code § 6-1.1-4-25 (West 2000) (amended 2002); Ind. Code § 6-1.1-4-30 (West 2000).