ATTORNEYS FOR PETITIONERS: ATTORNEYS FOR RESPONDENT:
STANLEY TALESNICKSee footnote 1 JEFFREY A. MODISETT
MARK R. WATERFILL ATTORNEY GENERAL OF INDIANA
LEAGRE & BARNES
Indianapolis, IN JOEL SCHIFF
DEPUTY ATTORNEY GENERAL
STANLEY TALESNICK and ) CLAUDIA TALESNICK, ) ) Petitioners, ) ) v. ) Cause No. 49T10-9509-TA-00092 ) STATE BOARD OF TAX COMMISSIONERS, ) ) Respondent. ) ______________________________________________________________________________
ON APPEAL FROM THE STATE BOARD OF TAX COMMISSIONERS ___________________________________________________________________________
March 20, 1998
The Petitioners, Stanley and Claudia Talesnick (the Talesnicks), appeal the State Board of Tax Commissioners' (State Board) final determination denying them a reduction in the assessed value of their real property. The Talesnicks also appeal the subsequent raising of the assessed
value of their home by the State Board and the lack of an opportunity to respond to that action.
Although the Talesnicks initially raised five issues, those issues have been narrowed to two:
I. Whether the State Board properly valued the Talesnicks' land at $110,000.
II. Whether the increase in the assessed value of the Talesnicks'
residence was erroneous and done without providing the Talesnicks
an opportunity to respond.
construct a dock on the city's property and provid[e] the city with a liability insurance policy . . .
(Trial Tr. at 59); (Oral Arg. at 10-11).
In accordance with Ind. Code Ann. § 6-1.1-4-13.6 (West 1989) (amended 1993 & 1997), the State Board promulgated a Land Order for use by Marion County assessing officials for the 1989 general reassessment and subsequent years. Under that Land Order, the base rateSee footnote 3 values of a parcel of land in Eagle Ridge may vary between $90,000 and $110,000 for the first acre and $2,000 and $4,000 for each additional acre. The Talesnicks' real property was assessed at a total of $311,010. This amount consists of $116,910, the assessed value of the landSee footnote 4 , and $194,100, the assessed value of the improvements. Simply put, the Talesnicks' land was valued at the highest value allowed under the land order.
On February 28, 1990, the Talesnicks filed a Form 130 Petition for Review of Assessment with the Marion County Board of Review (BOR). The BOR declined to alter the Talesnicks' assessment, and subsequently the Talesnicks filed a Form 131 Petition for Review of Assessment with the State Board. See Ind. Code Ann. § 6-1.1-15-3 (West 1989) (amended 1993 & 1997);
Ind. Admin. Code tit. 50, r. 4.2-3-3 (1992) (codified in present form at Ind. Admin. Code tit.
50, r. 4.2-3-3 (1996)).
A hearing on the petition was held on May 10, 1995. On May 11, 1995, the State Board hearing officer, Ron Stinson, personally inspected the Talesnicks' property. The State Board issued its final determination on July 28, 1995 denying the Talesnicks' protest and increasing the assessed value of the Talesnicks' home. See Ind. Code Ann. § 6-1.1-15-4 (West Supp. 1997); see also Joyce Sportswear Co. v. State Bd. of Tax Comm'rs, 684 N.E.2d 1189, 1191, 1194 n.8 (Ind. Tax Ct. 1997), petition for review filed, October 8, 1997 (discussing State Board ability to increase assessment after taxpayer initiated petition for review). This increase was based on a recalculation of the square footage contained in the finished portion of the Talesnicks' basement. The Talesnicks filed an original tax appeal on September 7, 1995. A trial was held in this matter on September 16, 1996. This Court heard oral argument on January 6, 1997. Additional facts will be supplied as necessary.
Bd. of Tax Comm'rs, 683 N.E.2d 1372, 1374 (Ind. Tax Ct. 1997); see also North Park Cinemas,
Inc. v. State Bd. of Tax Comm'rs, 689 N.E.2d 765, 767 (Ind. Tax Ct. 1997) (party appealing
administrative decision bears the burden of proof before this Court). A taxpayer 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.'" GTE N., Inc. v. State Bd. of Tax Comm'rs, 634 N.E.2d
882, 887 (Ind. Tax Ct. 1994) (quoting Thorntown Tel. Co. v. State Bd. of Tax Comm'rs, 629
N.E.2d 962, 964 (Ind. Tax Ct. 1994)). Although the burden of proof never shifts, once the
taxpayer presents a prima facie case, the duty to go forward with the evidence shifts, and it is
incumbent on the State Board to rebut the taxpayer's evidence. Western Select Properties v.
State Bd. of Tax Comm'rs, 639 N.E.2d 1068, 1071-72 (Ind. Tax Ct. 1994).
State Board should select a lower value for their land than the land in the other subdivisions,
which possess an improved infrastructure.See footnote
The Talesnicks' also argue that they are entitled to the application of a negative influence factor for their property because of the lack of infrastructure and the water flowage easement. See Ind. Admin. Code tit. 50, r. 2.1-2-1 (codified in present form at Ind. Admin. Code tit. 50, r. 2.2-4-10(a)(9)(1996)). A negative influence factor is justified in instances where property has a "condition peculiar to the land that dictates an adjustment, either positive or negative, to the extended value to account for variations from the norm." Id. This Court has previously held that influence factors are appropriate for making adjustments to the value of land that is encumbered by an easement. See Poracky, 635 N.E.2d at 238. The Talesnicks argue that the lack of an infrastructure, as well as the water flowage easement cause the value of their land to vary from the norm. Therefore, they are entitled to the application of a negative influence factor.
The State Board maintains that the Talesnicks' land, when compared with other land in Eagle Ridge, is valued correctly at $110,000. The Talesnicks insist that the State Board has arbitrarily limited its comparison properties to those located in Eagle Ridge, which prevents accurate valuation of the Talesnicks' land. This Court has previously addressed a similar factual situation.
In Vonnegut v. State Bd. of Tax Comm'rs, 672 N.E.2d 87, 89 (Ind. Tax Ct. 1996), review denied. The taxpayer's land was being assessed at $270 per front foot, which was consistent with the Land Order. Id. However, virtually identical properties located across the street were assessed at almost $100 less per front foot. Id. The State Board argued that the properties
located across the street, although in the same neighborhood, were in a different subdivision and
therefore could be disregarded in arriving at the value of the taxpayer's property. This Court held
that the State Board "may not arbitrarily limit its comparisons to properties within the same
subdivision." Id. at 90. Further, this Court held that "surrounding properties should . . . inform
the assessor as to the value of the given property_regardless of their subdivision." Id.
The State Board offered no evidence regarding which properties were compared when setting the land values for Eagle Ridge. When determining land values, the State Board must not arbitrarily limit its comparison properties. Although a particular subdivision may contain enough parcels, as well as defining characteristics, to enable the State Board to accurately determine land values without reference to other subdivisions, the State Board must actually make such a determination before it refuses to consider comparing land in other subdivisions when setting values in a land order or on a petition for review. It is simply not permissible to ignore comparable properties located nearby when this Court has previously stated that surrounding properties should inform the assessor of the value of a given piece of property. Id. In the present case, there is no evidence to indicate that the State Board compared the properties in Eagle Ridge with those in the other subdivisions. In fact, the evidence indicates that it did not do so.
Eagle Ridge does not have the same infrastructure as the other subdivisions. There are no city sewers, no city water, and no city-maintained streets with access to the property. However, the Talesnicks' property was valued identically to the property surrounding the water in the subdivisions that have more amenities. The sole reason given by the State Board for selecting the $110,000 value for the Talesnicks' land was that it was located "on the water." This is simply
insufficient to rebut the Talesnicks' prima facie case that their land should not be valued as highly
as the land "on the water" in the other subdivisions.See footnote
The Talesnicks also presented evidence at trial that the water flowage easement encumbers more of their property than it does their neighbors. Mr. Talesnick testified that he estimated the water flowage easement to encumber 35% to 40% of his property. (Trial Tr. at 20). Mr Talesnick also testified that the grade or slope of his property was less than that of other properties surrounding the reservoir. This allows the water to encroach on his property to a greater extent than it does on his neighbors. (Trial Tr. at 19). Mr. Talesnick's testimony was supported with maps of the subdivision showing the line of the water flowage easement, the topography of the subdivision, and photographs of his home and others around the reservoir. (Pet'r Ex. 3-6 and 6-52 ).
The State Board's hearing officer testified that the presence of the water flowage easement around the reservoir did not merit the application of an influence factor. He based this conclusion on the fact that the Talesnicks did not present evidence "to indicate [their] property was less valuable than the surrounding properties." (Trial Tr. at 87). In addition to this, the Final Assessment Determination of the State Board indicates that "the water flow easement was taken into consideration when the base land value was set." (Resp. Ex. D).
The Land Order may have accounted for the presence of the easement on all parcels of
land around the reservoir through an examination of comparable sales.See footnote
factors are applied to a specific parcel of land when it has a "condition . . . that dictates an
adjustment . . . to account for variations from the norm." See Ind. Admin. Code tit. 50, r. 2.1-2-
1 (codified in present form at Ind. Admin. Code tit. 50, r. 2.2-4-10(a)(9)). The Talesnicks
presented evidence that the water flowage easement encroaches on their land to a greater extent
than it does the other land surrounding the reservoir. That the presence of a water flowage
easement on all the parcels of land may have been accounted for in the Land Order does not mean
that the extra burden that the Talesnicks allege was accounted for in valuing the Talesnicks' land.
Therefore, the appropriate question for the State Board is not whether the Land Order accounted
for the presence of the water flowage easement, but rather whether the Talesnicks' land is
encumbered by the easement to an extent such that application of a negative influence factor is
The Talesnicks made a prima facie case showing their property was valued incorrectly. Once this is done, the State Board must rebut their evidence. See Western Select, 639 N.E.2d at 1071-1072. The State Board must do more than merely assert that it valued the property correctly. See Thorntown Tel. Co., 629 N.E.2d at 965. There may be reasons why the Talesnicks' land is properly valued at $110,000 per acre. Perhaps the land has a superior view of
the reservoir. The lack of a major road leading into the subdivision may increase the value of the
land because the streets are safe and quiet. The Talesnicks' land might be flat in comparison to
other parcels located around the reservoir. There may be more shopping or commerce located
nearby. Perhaps the water flowage easement does not affect the value of the Talesnicks' land any
more than it does the other land surrounding the reservoir. The State Board offered no
justification in support of its position. Therefore, the State Board's final determination is not
supported by substantial evidence.
the basement was 3,080 square feet. (Oral Arg. Tr. at 45). The final determination of the State
Board issued on July 28, 1995 states that the square footage of the finished portion of the
basement is 2,036 square feet and the unfinished portion is 1,044 square feet (3,080 total square
feet). (Resp't Ex. D). However, the property record cards submitted as evidence, as well as the
statements of both the Talesnicks and the State Board at oral argument, lead this Court to
conclude that the square footage actually entered on the property record card by Marion County
is higher than that as determined by the State Board in its final determination. (Pet'r Ex. 8)
(Resp't Ex. G) (Oral Arg. Tr. at 37-46). In short, confusion reigns with respect to the actual
measurements of the Talesnicks' basement. This Court remands this issue to the State Board and
ORDERS the State Board to remeasure the Talesnicks' basement and to adjust the True Tax
of the Talesnicks' property if necessary.See footnote
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