ATTORNEY FOR PETITIONERS ATTORNEYS FOR RESPONDENT:
JOHN R. RUMPLE JEFFREY A. MODISETT
SHARPNACK, BIGLEY, DAVID & RUMPLE Attorney General of Indiana
Deputy Attorney General
FRED BAINBRIDGE, ) ) Petitioner, ) ) v. ) Cause Nos. 49T10-9601-TA-00005 ) 49T10-9601-TA-00006 STATE BOARD OF TAX COMMISSIONERS , ) ) Respondent. ) ) ) DUANE E. SWORD, ) ) Petitioner, ) ) v. ) ) STATE BOARD OF TAX COMMISSIONERS, ) ) Respondent. ) ) )____________________________________________________________________________
NOT FOR PUBLICATION
Comm'rs, 676 N.E.2d 1113, 1116 (Ind. Tax Ct. 1997) (citing Ind. Admin. Code tit. 50, r. 2.1-3-
4 (1992)). One of these adjustments is the Row-Type Adjustment (Schedule B):
This Schedule applies only to row-type dwellings, defined as multi-family (two or more families) dwellings in which the individual dwelling units are separated vertically by means
of "common" or "party" walls. Row[-]type dwellings are different from duplexes in which the individual dwelling units are separated horizontally. This category includes any row- type configuration with two or more family units, townhouses, and semi-detached condominium units.
Row-type dwelling units, because they can be owned individually, shall be priced
uniformly as individual dwelling units regardless of whether they are owned individually or
in combination. Schedule B is used to adjust the base price to account for the variation in
the cost of erecting row-type units as compared to free standing single family units.
Ind. Admin. Code tit. 50, r. 2.1-3-4(b).
The Petitioners rely on the following language contained in the Row-Type Adjustment to support their contention that the regulations forbid the use of the Residential Pricing Schedule with a Row-Type Adjustment to assess the subject improvements: "Row-type dwelling units, because they can be owned individually, shall be priced uniformly as individual dwelling units regardless of whether they are owned individually or in combination." Ind. Admin. Code tit. 50, r. 2.1-3-4(b) (emphasis added). They argue, in effect, that the ability to own the individual dwelling units individually is a necessary condition to the use of the Residential Pricing Schedule with a Row-Type Adjustment to assess the subject improvements.See footnote 4
This Court need not resolve this question in order to decide this case. Even if the
Petitioners are correct in their interpretation of the regulation, they must still meet their burden of
demonstrating factually that the individual dwelling units in the subject improvements cannot be
owned individually in order to succeed. They have not done so.
In support of their position, the Petitioners presented the testimony of Mr. Milo E. Smith. Mr. Smith is a property tax consultant who receives compensation based on the amount that the Petitioners' property tax assessment is reduced. This Court reviews Mr. Smith's testimony in light of the contingent nature of his compensation. See Wirth v. State Bd. of Tax Comm'rs, 613 N.E.2d 874, 876-77 (Ind. Tax Ct. 1993). In his testimony, Mr. Smith offered his conclusion that the individual dwelling units in the subject improvements could not be owned individually. In support of this conclusion, Mr. Smith stated that the individual dwelling units did not have separate deeds. Additionally, Mr. Smith testified that the individual dwelling units did not have double walls separating them.
This testimony is unconvincing. The Petitioners offered no facts to corroborate Mr. Smith's assertion that the individual dwelling units could not be owned separately. The fact that the individual dwelling units did not have separate deeds does not mean that they cannot be deeded separately if the owner so decides. Moreover, the Petitioners did not bring any law, regulation, or local ordinance that would prevent the individual dwelling units from being owned individually to this Court's attention. Mr. Smith's testimony that the subject improvements lack double walls separating the individual dwelling units is meaningless without a showing that the lack of double walls would preclude the individual dwelling units from being owned individually. All Mr. Smith's testimony on this point has done is to show that at the time of the assessment, the individual dwelling units were not owned individually. That is a far cry from showing that they
could not be owned individually.
Mr. Smith also testified that he would have assessed the subject improvements by using the GCR Pricing Schedule, instead of the Residential Pricing Schedule with the Row-Type Adjustment. In this case, the Petitioners have failed to demonstrate that the State Board was forbidden to use the Residential Pricing Schedule with a Row-Type Adjustment to assess the subject improvements. The effect of this failure is that this Court must give deference to the State Board's choice of pricing schedules.
Mr. Smith's testimony does not demonstrate an abuse of discretion by the State Board. He merely offered his opinion that the use of the GCR Pricing Schedule was the proper means of assessing the subject improvements. The Petitioners offered no corroborating evidence to support this opinion. In light of the fact that Mr. Smith receives compensation based on the outcome of this case, his unsupported opinion is accorded little weight and is "insufficient to overcome the wide latitude given the State Board and the presumption that the State Board acted properly." Wirth, 613 N.E.2d at 878.
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