ATTORNEY FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
DAVID L. PIPPEN    STEVE CARTER
ATTORNEY AT LAW     ATTORNEY GENERAL OF INDIANA
Indianapolis, IN    Indianapolis, IN
    
    LINDA I. VILLEGAS
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
______________________________________________________________________
     IN THE INDIANA TAX COURT

VICTORIA ENTERPRISES/WORTHMAN    )
MALL,                             )        
                                  )
    Petitioner,                   )
                                  )
    v.                            )   Cause No. 49T10-0101-TA-9
                                  )
DEPARTMENT OF LOCAL               )

(2)    The assessment was against the wrong person.

(3)    Taxes on the same property were charged more than one (1) time in the same year.

(4)    There was a mathematical error in computing the taxes or penalties on the taxes.

(5)    There was an error in carrying delinquent taxes forward from one (1) tax duplicate to another.

(6)    The taxes, as a matter of law, were illegal.

(7)    There was a mathematical error in computing an assessment.

(8)    Through an error of omission by any state or county officer the taxpayer was not given credit for an exemption or deduction permitted by law.

Ind. Code Ann. § 6-1.1-15-12(a) (West 1998) (amended 2001). In turn, this Court has held that a determination is objective if it hinges on a simple, true or false finding of fact. See Bender v. State Bd. of Tax Comm’rs, 676 N.E.2d 1113, 1115 (Ind. Tax Ct. 1997). Nevertheless, “where a simple finding of fact does not dictate the result and discretion plays a role, [the] decision is considered subjective and may not be challenged through a Form 133 filing.” Id.
Victoria argues that its Forms 133 were appropriate because the determination of whether the area is a mall concourse or an atrium with a mezzanine is an objective judgment. (Pet’r [] Br., Findings of Fact and Conclusions of Law at 3-4.) Victoria suggests the alleged error is objective because a visual inspection would indicate that the elements of the atrium and mezzanine, as delineated in the assessment regulations, are not present in the structure. See footnote ( See Oral Argument Tr. at 4-6.) Instead, Victoria argues that because the subject space is comprised of a floor, ceiling and planting or seating items, the most appropriate pricing is that of the mall concourse. (Pet’r [] Br., Findings of Fact and Conclusions of Law at 4.) See also Ind. Admin. Code tit. 50, r. 2.2-11-6 (Schedule E) (1996).
While it is true that a mere visual inspection may signify, objectively, presence or absence of the elements of an atrium and mezzanine, the selection of a more appropriate feature is determined through subjective standards. See Hatcher v. State Bd. of Tax Comm’rs, 601 N.E.2d 19, 22 (Ind. Tax Ct. 1992). The issue before the Court is akin to the one determined in Bender v. State Board of Tax Commissioners, 676 N.E.2d 1113 (Ind. Tax Ct. 1997). In that case, the Court decided whether a challenge to the selection of a pricing schedule was appropriate for a Form 133 Petition. Bender, 676 N.E.2d at 1113. This Court held that the selection of a pricing schedule required subjective judgment, and therefore could not be challenged via a Form 133, stating:
Clearly, the assessor must use his or her judgment in determining which schedule to use. It is not a decision automatically mandated by a straightforward finding of fact. The assessor must consider the property in question, including its physical attributes and predominant use, and make a judgment as to which schedule is most appropriate. Just as the assessor must use subjective judgment to determine which base price model to employ within these schedules, so too the assessor must exercise his or her discretion to determine which schedule to use.

Id. at 1116.
In this case, while the features of atrium, mezzanine and mall concourse are all found in the same pricing schedule, each feature is distinct, contains its own pricing, and is capable of being adjusted for variations in quality (i.e. grade). See 50 IAC 2.2-11-6 (Schedule E). Since an assessor could make adjustments and possibly achieve a different result from the mall concourse, which Victoria proposes, the decision is not one automatically mandated by a straightforward finding of fact. Thus, even if the absence of the elements of an atrium or mezzanine may be determined objectively, the selection and pricing of a replacement is a subjective decision. See Bender, 676 N.E.2d at 1116. Accordingly, the State Board properly concluded the challenge was inappropriate for a Form 133 Petition.