ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENTS:
Jeffrey T. Bennett STEVE CARTER
Steven G. Cracraft ATTORNEY GENERAL OF INDIANA
Michael S. Prakel Indianapolis, IN
BINGHAM McHALE LLP
Indianapolis, IN JOEL SCHIFF
DEPUTY ATTORNEY GENERAL
PARKER, POE, ADAMS &
DULL & DUGGAN
BRIAN P. POPP
LASZLO & POPP, PC
INDIANA TAX COURT
BP AMOCO CORPORATION n/k/a )
Order on respondents MotionS to Dismiss
BP PRODUCTS NORTH AMERICA INC., )
v. ) Cause No. 49T10-0209-TA-114
THE LAKE COUNTY PROPERTY TAX )
ASSESSMENT BOARD OF APPEALS, )
JOHN MATONOVICH, in his official capacity )
as NORTH TOWNSHIP ASSESSOR, )
PETER BENJAMIN, in his official capacity )
as LAKE COUNTY AUDITOR, )
PAUL G. KARRAS, in his official capacity )
as LAKE COUNTY ASSESSOR, and )
PEGGY HOLINGA KATONA, in her official )
capacity as LAKE COUNTY TREASURER,
April 1, 2003
BP Amoco Corporation, n/k/a BP Products North America, Inc. (BP), appeals the final
determination of the Indiana Board of Tax Review (Indiana Board) dismissing its property
tax assessment appeal for the 1995-1998 tax years (the years at issue).
The case is currently before the Court on the Respondents motions to dismiss
BPs appeal under Indiana Trial Rule 12(B)(6). Consequently, this Court must determine
whether BPs complaint fails to state a claim upon which relief can be
granted. See Ind. Trial R. 12(B)(6).
FACTS AND PROCEDURAL HISTORY
BP is one of the largest oil and gasoline producers/retailers in the United
States. It owns both real and personal property in Lake County, Indiana.
In the spring of 1999, BP filed approximately 325 Petitions for Correction of
Error (Forms 133), claiming that the property tax it paid on its Lake
County property for the years at issue was illegal as a matter of
law. More specifically, BP alleged that its statutory and constitutional rights were
violated because its tax liability was inequitable when compared to the tax liabilities
of other taxpayers in Lake County. As a result, BP requested an
equalization adjustment and a refund of the approximately $20 million in
allegedly excessive taxes it paid.
See footnote (Mot. to Dismiss Tr. at 9.) ANALYSIS, OPINION & ORDER
The Respondents reviewed BPs Forms 133 and denied relief. BP subsequently appealed
to the State Board of Tax Commissioners (State Board). In May of
2002, the Respondents filed a motion to dismiss under Indiana Trial Rule 12(B)(6),
contending that BPs use of the Forms 133 was an improper method by
which to challenge assessment matters that implicated an assessors subjective judgment.
See footnote In
August 2002, the Indiana BoardSee footnote issued a final determination granting the Respondents motion
On September 24, 2002, BP filed this original tax appeal. The Respondents
subsequently filed several motions to dismiss pursuant to Indiana Trial Rule 12(B)(6).
The Court conducted a hearing on the Respondents motions on January 29, 2003.
Additional facts will be supplied as necessary.
Standard of Review
This Court gives great deference to final determinations of the Indiana Board when
it acts within the scope of its authority. Wittenberg Lutheran Vill. Endowment
Corp. v. Lake County Prop. Tax Assessment Bd. of Appeals, 782 N.E.2d 483,
486 (Ind. Tax Ct. 2003). Consequently, the Court will 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;
(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 § 33-3-5-14.8(e)(1)-(5) (Supp. 2001).
A Trial Rule 12(B)(6) motion is used to test the legal sufficiency of
a complaint; or, stated differently, to test the law of the claim, not
the facts that support it. Bielski v. Zorn, 627 N.E.2d 880, 883
n.3 (Ind. Tax Ct. 1994) (internal quotation and citation omitted). When reviewing
such a motion, it must be determined whether the complaint states any allegation
upon which relief can be granted. Absher v. Clark County Rural Elec.
Membership Corp., 629 N.E.2d 870, 871 (Ind. Ct. App. 1994), trans. denied.
The complaint must be evaluated in a light most favorable to the non-moving
party, with every reasonable inference drawn in favor of that party. Runde
v. Vigus Realty, Inc., 617 N.E.2d 572, 575 (Ind. Ct. App. 1993).
A complaint will not be dismissed under Trial Rule 12(B)(6) unless it appears
that the non-moving party would not be entitled to relief under any circumstances
whatsoever. Bielski, 627 N.E.2d at 883 n.3.
The Respondents claim that BPs complaint fails to state a claim upon which
relief can be granted. More specifically, they assert that because BP used
the wrong form to challenge matters that implicate an assessors subjection discretion, its
attempt to obtain review and equalization counts for naught. The Court disagrees.
In its complaint filed with this Court, BP asserts that its property is
assessed at a much higher percentage of value than other comparable property in
Lake County. (See Petr V. Pet. for Judicial Review at 6.)
This unequal assessment, BP maintains, violates Indianas constitutional and statutory guarantees that its
assessment will be uniform with others in the state. It contends that
because it was subjected to unequal treatment in the assessment years 1995-1998 .
. . it was subjected to illegal taxation as a matter of law[.]
(Petr V. Pet. for Judicial Review at 6.)
This Court has repeatedly awarded relief to taxpayers who have shown by probative
evidence that their property is assessed and taxed differently than comparable properties.
See, e.g., Zakutansky v. State Bd. of Tax Commrs, 691 N.E.2d 1365, 1369-70
(Ind. Tax Ct. 1998); Vonnegut v. State Bd. of Tax Commrs, 672 N.E.2d
87, 89-90 (Ind. Tax Ct. 1996). Because BPs complaint alleges that its
property assessment and resulting tax liability is not uniform with other comparable properties,
it sufficiently states an allegation upon which relief could be granted. See
Absher, 629 N.E.2d at 871.
At this point, however, BP has not had the opportunity to present facts
on the record to support its claim. Indeed, the Indiana Board dismissed
BPs Forms 133 prior to ever conducting a hearing. This was in
error, as the provisions of Indiana Code § 6-1.1-15-12(e) required the Indiana Board
to hold a hearing on BPs Forms 133. See Ind. Code §
6-1.1-15-12(e) (providing that a Form 133 is subject to the appeals procedure under
sections 4 through 8 of Indiana Code § 6-1.1-15). Thus, the Indiana
Board acted without observance of procedure required by law when it declined to
hold a hearing on BPs claim.
See Ind. Code § 33-3-5-14.8(e)(4).
For the reasons stated, the Court DENIES the Respondents motions to dismiss, as
BP has sufficiently stated an allegation upon which relief could be granted.
Indiana Code § 6-1.1-15-12(e) provides BP with the opportunity to establish an administrative
record that would support the allegations contained within its complaint. The Court
therefore REMANDS the matter to the Indiana Board for a hearing consistent with
SO DATED THIS 1st DAY OF APRIL, 2003.
Thomas G. Fisher, Judge
Indiana Tax Court
Jeffrey T. Bennett
Steven G. Cracraft
Michael S. Prakel
BINGHAM McHALE, LLP
2700 Market Tower
10 West Market Street
Indianapolis, IN 46204
PARKER, POE, ADAMS &
DULL & DUGGAN
Brian P. Popp
LASZLO & POPP, PC
Office of the Attorney General
Indiana Government Center South, 5th Floor
402 W. Washington Street
Indianapolis, IN 46204
Hereinafter referred to collectively as the Respondents.
In conjunction with its Forms 133, BP also filed claims for
refund (Forms 17-T) under Indiana Code § 6-1.1-26-1.
Footnote: Instead, the Respondents argued that BP should have used the Petition
for Review of Assessment procedure (Forms 130/131) set forth in Indiana Code §
6-1.1-15-1 through 4. The Form 130/131 procedure allows a
taxpayer to mount
a comprehensive challenge to both objective and subjective errors in the [an] assessment
by filing a Form 130 with the county assessor. Reams v. State
Bd. of Tax Commrs, 620 N.E.2d 758, 759 (Ind. Tax Ct. 1993).
On December 31, 2001, the legislature abolished the 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
Ind. Code §§ 6-1.5-1-3; 6-1.5-4-1 (Supp. 2001); 2001 Ind. Acts
198 § 95. Consequently, when a final determination was issued on BPs
appeal, it was issued by the Indiana Board.
The claims raised in BPs Forms 133 may well be inappropriate
for a Form 133 if they require the subjective judgment of an assessing
official. However, until BP is afforded a hearing on the matter, this
cannot be determined.