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               )
GOVERNMENT FINANCE, See footnote         )
                )
    Respondent.            )    
                )    
______________________________________________________________________

ON APPEAL FROM A FINAL DETERMINATION OF
THE STATE BOARD OF TAX COMMISSIONERS

NOT FOR PUBLICATION
April 8, 2005

FISHER, J.
Victoria Enterprises/Worthman Mall (Victoria) appeals from a final determination of the State Board of Tax Commissioners (State Board) that assessed a portion of Victoria’s improvement as an atrium with a mezzanine for the 1996, 1997, 1998 and 1999 tax years (years at issue). The sole issue before the Court is whether the State Board erred in its assessment. See footnote The Court AFFIRMS the State Board’s final determination for the following reasons.
FACTS AND PROCEDURAL HISTORY

Victoria owns a two-story, multi-tenant office building in Allen County, Indiana. For the years at issue, the Allen County Board of Review (BOR) assessed a portion of the building as an atrium with a mezzanine. Victoria subsequently filed four Petitions for Correction of Error (Forms 133)See footnote with the State Board, claiming the area should have been assessed as a wood-frame enclosed mall concourse area. On December 8, 2000, the State Board issued its final determination in which it denied Victoria’s request for relief in relevant part. Specifically, the State Board held that the issue raised by Victoria required the subjective judgment of an assessor and was, therefore, not an appropriate challenge for a Form 133.
Victoria initiated an original tax appeal on January 4, 2001. In lieu of a trial, both parties agreed to have the case resolved on the basis of their briefs and the stipulated administrative record. The Court heard the parties’ oral arguments on June 20, 2002. Additional facts will be supplied as necessary.
ANALYSIS AND OPINION
Standard of Review

    This Court gives great deference to the final determinations of the State Board when it acts within the scope of its authority. Hamstra Builders, Inc. v. Dep’t of Local Gov’t Fin., 783 N.E.2d 387, 390 (Ind. Tax Ct. 2003). Thus, this Court will reverse a final determination of the State Board only when its findings are unsupported by substantial evidence, arbitrary, capricious, constitute an abuse of discretion, or exceed statutory authority. Id. When appealing to this Court from a State Board final determination, the taxpayer bears the burden of showing that the final determination is invalid. Id.
Discussion

    The dispositive issue in this case is whether the assessment of an area as atrium with a mezzanine is an objective error that can be corrected via a Form 133 challenge. Victoria argues that it is; however, the Court disagrees.
During the years at issue, a taxpayer had two methods by which to appeal an assessment. First, it could file a Form 130/131 Petition for Review of Assessment (Form 130/131), challenging any element of its assessment, whether subjective or objective errors. O’Neal Steel v. Vanderburgh County Property Tax Assessment Bd. of Appeals, 791 N.E.2d 857, 860 (Ind. Tax Ct. 2003). The second method of appeal was the Form 133. Id. at 859. “[T]he only errors subject to correction by [a] Form 133 are those which can be corrected without resort to subjective judgment.” Hatcher v. State Bd. of Tax Comm’rs, 561 N.E.2d 852, 857 (Ind. Tax Ct. 1990). In other words, a Form 133 may be used to correct objective errors only. See Id.
Indiana Code § 6-1.1-15-12(a) lists the types of errors that may be addressed on a Form 133:
(1)    The description of the real property was in error.

(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.

CONCLUSION

For these reasons, the Court AFFIRMS the State Board’s final determination.


Footnote: The State Board of Tax Commissioners (State Board) was originally the Respondent in this appeal. However, the legislature abolished the State Board as of December 31, 2001. 2001 Ind. Acts 198 § 119(b)(2). Effective January 1, 2002, the legislature created the Department of Local Government Finance (DLGF), see Indiana Code § 6-1.1-30-1.1 (West Supp. 2004-2005)(eff. 1-1-02); 2001 Ind. Acts 198 § 66, and the Indiana Board of Tax Review (Indiana Board). Ind. Code Ann. § 6-1.5-1-3 (West Supp. 2004-2005)(eff. 1-1-02); 2001 Ind. Acts 198 § 95. Pursuant to Indiana Code § 6-1.5-5-8, the DLGF is substituted for the State Board in appeals from final determinations of the State Board that were issued before January 1, 2002. Ind. Code Ann. § 6-1.5-5-8 (West Supp. 2004-2005)(eff. 1-1-02); 2001 Ind. Acts 198 § 95. Nevertheless, the law in effect prior to January 1, 2002 applies to these appeals. A.I.C. § 6-1.5-5-8. See also 2001 Ind. Acts 198 § 117. Although the DLGF has been substituted as the Respondent, this Court will still reference the State Board throughout this opinion.

Footnote: Victoria also raised various state and federal constitutional claims that this Court has declined to reach in previous cases. See, e.g., Barth, Inc. v. State Bd. of Tax Comm’rs, 756 N.E.2d 1124, 1127 n.1 (Ind. Tax Ct. 2001). Because Victoria’s claims and supporting arguments are identical to those previously rejected by the Court, the Court will not address them.

Footnote: Victoria filed a Form 133 for each year at issue.

Footnote: For example, Victoria cited to the Indiana Administrative Code and the Marshall Valuation Service glossary to define the elements of an atrium as consisting of “lighting, plumbing, and finish, and fireproof steel construction with glass ceilings creating a ‘greenhouse effect.’” (Pet’r [] Br., Findings of Fact and Conclusions of Law at 3; see also Stip. R. at 201.) During the State Board hearing, Victoria presented photographs and an appraisal of the subject property to demonstrate that the area did not consist of fireproof steel or a glass ceiling that created a greenhouse-like effect. (See Stip. R. at 59-177.) Instead, Victoria contends that its roofing is a flat build-up type roof of mostly wood construction, supported by wood roof trusses. (See Stip. R. at 201.)