ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
CURTIS J. DICKINSON JEFFREY A. MODISETT
DAVID L. PIPPEN Attorney General of Indiana
DICKINSON & ABEL
Indianapolis, Indiana VINCENT S. MIRKOV
Deputy Attorney General
RONALD D. CLARK, ) ) Petitioner, ) ) v. ) Cause No. 49T10-9607-TA-00083 ) STATE BOARD OF TAX COMMISSIONERS , ) ) Respondent. ) ) ) _____________________________________________________________________
Salisbury Street (Salisbury Property) and the other located at 121 West Wood Street
(Wood Property) in West Lafayette, Indiana. The Wood and Salisbury Properties are
located near Purdue University and serve a primarily student market. On October 12,
1993, Clark filed a Form 130 Petition for Review of Assessment for each apartment
building with the Tippecanoe County Board of Review (BOR) challenging the apartment
buildings' assessment. The BOR declined to change the assessed value of the
apartment buildings. On December 9, 1993, Clark filed a Form 131 Petition for Review
of Assessment for each apartment building with the State Board alleging that the BOR
had given the apartment buildings an improper amount of obsolescence depreciation.See footnote
On May 31, 1996, the State Board issued two final determinations reducing the
assessed value of the Wood and Salisbury Properties. On July 16, 1996, Clark
initiated this original tax appeal, and on May 23, 1997, the parties tried this cause
before this Court.
review denied. This oft-repeated language mirrors the traditional standard by which
courts evaluate the decisions of administrative agencies.See footnote
See State Bd. of Tax
Comm'rs v. Smith, 463 N.E.2d 493, 495 n.2 (Ind. Ct. App. 1984) (judicial review of State
Board decisions closely analogous to judicial review of administrative decisions).
In addition, the party challenging the propriety of a State Board final determination bears the burden of demonstrating the invalidity of that final determination. See Zakutansky v. State Bd. of Tax Comm'rs, No. 64T10-9410-TA- 00227, slip. op. at 3 (Ind. Tax Ct. Feb. 13, 1998); Vonnegut v. State Bd. of Tax Comm'rs, 672 N.E.2d 87, 89 (Ind. Tax Ct. 1996), review denied. This Court's decisions contain various formulations of how a taxpayer may satisfy this burden. A few decisions of this Court have characterized this burden as requiring the taxpayer to make a prima facie case. See Wareco Enters. v. State Bd. of Tax Comm'rs, 689 N.E.2d 1299, 1300 (Ind. Tax Ct. 1997); Western Select Properties v. State Bd. of Tax Comm'rs, 639 N.E.2d 1068, 1071 (Ind. Tax Ct. 1994); GTE N., Inc. v. State Bd. of Tax Comm'rs, 634 N.E.2d 882, 887 (Ind. Tax Ct. 1994); Thorntown Tel. Co. v. State Bd. of Tax Comm'rs, 629 N.E.2d 962, 964 (Ind. Tax Ct. 1994). In order to establish a prima facie case, a taxpayer must introduce evidence "sufficient to establish a given fact and which if not contradicted will remain sufficient." GTE N., 634 N.E.2d at 887. Once the
taxpayer carries the burden of establishing a prima facie case, the burden shifts to the
State Board to rebut the taxpayer's evidence and justify its decision with substantial
evidence. See Western Select Properties, 639 N.E.2d at 1072.
Other decisions by this Court have characterized the burden of demonstrating the invalidity of an assessment as requiring the taxpayer to "show [that] the State Board's assessment was inaccurate." Paul Heuring Motors, Inc. v. State Bd. of Tax Comm'rs, 620 N.E.2d 39, 41 (Ind. Tax Ct. 1993) (citing Meridian Hills Country Club v. State Bd. of Tax Comm'rs, 512 N.E.2d 911, 913 (Ind. Tax Ct. 1987)). Cf. North Park Cinemas, Inc. v. State Bd. of Tax Comm'rs, 689 N.E.2d 765, 770 (Ind. Tax Ct. 1997) (burden of proving the incorrectness of an assessment lies with taxpayer).
Other decisions have eschewed these requirements, focusing instead on whether the State Board's final determination is proper. See, e.g., Bender v. State Bd. of Tax Comm'rs, 676 N.E.2d 1113 (Ind. Tax Ct. 1997); Simmons v. State Bd. of Tax Comm'rs, 642 N.E.2d 559 (Ind. Tax Ct. 1994); Harrington v. State Bd. of Tax Comm'rs, 525 N.E.2d 360 (Ind. Tax Ct. 1988). The critical inquiry in these cases is not what the taxpayer demonstrated the assessment should be, but rather whether the State Board acted properly in arriving at its final determination. See Scheid v. State Bd. of Tax Comm'rs, 560 N.E.2d 1283, 1285 (Ind. Tax Ct. 1990) (Court concerned with "integrity of the process by which the facts were found, rather than the facts themselves"). At first glance, these cases might seem somewhat inconsistent with the cases that require the establishment of a prima facie case or that require the taxpayer to establish the inaccuracy of a particular assessment. Those cases seem to predicate a taxpayer's
ability to challenge an assessment on the taxpayer affirmatively demonstrating a
competing view of what the assessment should be. However, a deeper examination of
these cases reveal that the differences are linked to the issues raised in each case,
rather than any inconsistency in this Court's jurisprudence.
As this Court's decisions demonstrate, there are a variety of different challenges that can be made to a final determination of the State Board. What the taxpayer must demonstrate in order to gain reversal of the final determination depends on the issues raised by the challenge. For example, when a taxpayer challenges his assessment as violating the uniformity and equality requirement of the Indiana Constitution, in order to demonstrate the invalidity of the assessment, the taxpayer will have to bring evidence of similar properties. See Zakutansky, No. 64T10-9410-TA-00227, slip op. at 9 (by introducing assessments of comparable properties, taxpayer placed burden on State Board to explain disparity in assessments); Western Select Properties, 639 N.E.2d at 1075 (taxpayer must offer evidence of assessment of similar properties in order to demonstrate inconsistent assessments); Meridian Hills Country Club, 512 N.E.2d at 915 (where taxpayer does not bring evidence of dissimilar treatment of similar properties, claim that assessment violates uniform and equal mandate must fail). In order to successfully challenge a final determination, the taxpayer will necessarily have to offer a competing view (and evidence to support that view) of what the assessment should be. However, a taxpayer need not offer a competing view of an assessment in every case (although the taxpayer's case will undoubtedly be helped by doing so). Under this Court's standard of review, a State Board final determination must be
reversed if, inter alia, that final determination is unsupported by substantial evidence.
A demonstration that an assessment is not supported by substantial evidence is not
necessarily predicated on demonstrating a competing view of what the assessment
should be. Cf. Bock Prods., Inc. v. State Bd. of Tax Comm'rs, 683 N.E.2d 1368, 1371
(Ind. Tax Ct. 1997) (taxpayer is not required to demonstrate how assessment error is
supposed to be corrected). In other words, a taxpayer need not always challenge the
accuracy of an assessment in order to challenge the basis of the assessment.See footnote
Properly understood, the term prima facie case is a convenient shorthand for describing situations where the taxpayer has chosen or is required to offer evidence of a competing view of an assessment to demonstrate the invalidity of a State Board final determination. Once the taxpayer has made the proper evidentiary showing, it is incumbent upon the State Board to offer some explanation in order to rebut the taxpayer's evidence. This requirement stems from the State Board's duty not to act arbitrarily and capriciously. See Western Select Properties, 639 N.E.2d at 1075. The State Board may not simply refuse to consider the taxpayer's evidence. See Conti v. Commissioner, 39 F.3d 658, 664 (6th Cir. 1994) ("[A] taxpayer's unimpeached, competent, and relevant testimony 'may not be arbitrarily discredited and disregarded. . . .'") (quoting Loesch & Green Const. Co. v. Commissioner, 211 F.2d 210, 212 (6th Cir. 1954); Anastasato v. Commissioner, 794 F.2d 884, 888 (3d Cir. 1986) (Tax Court must consider taxpayer's evidence.); Western Select Properties, 639 N.E.2d at 1075 (State Board cannot simply refuse to recognize taxpayer's evidence). The rule is simple:
when a taxpayer offers probative evidence, that evidence must be dealt with in some
meaningful manner. The prima facie case formulation allows this Court to determine
whether the State Board did so.
that the Wood Property did not have these features. Clark argues that the lack of these
features means that the State Board erred in giving the Wood Property a C grade.
Before turning to the merits of Clark's argument, the Court must determine what evidence was presented at the administrative level. As this Court's decisions make clear, a taxpayer may not base a claim of error on evidence not presented at the administrative level. See North Park Cinemas, 689 N.E.2d at 767-68 (citing State Bd. of Tax Comm'rs v. Gatling Gun Club, Inc., 420 N.E.2d 1324 (Ind. Ct. App. 1981)); GTE N., 634 N.E.2d at 889 n.7; Don Medow Motors, Inc. v. State Bd. of Tax Comm'rs, 545 N.E.2d 851, 852 (Ind. Tax Ct. 1989); Indiana Ass'n of Seventh-Day Adventists v. State Bd. of Tax Comm'rs, 519 N.E.2d 772, 773 (Ind. Tax Ct. 1988). This rule forces taxpayers to make their cases to the State Board, the acknowledged property tax experts. See Castello v. State Bd. of Tax Comm'rs, 638 N.E.2d 1362, 1365 (Ind. Tax Ct. 1994). As the State Board points out in its brief, this rule holds true even where the taxpayer could have established entitlement to relief. See Harbor Food Plaza, Inc. v. State Bd. of Tax Comm'rs, 638 N.E.2d 898, 901 (Ind. Tax Ct. 1994).
At trial, Mr. Drew Miller, a property tax consultant handling Clark's Form 131 petitions for review, testified that, with respect to the grade of the Wood Property, he discussed the lack of back-up walls with the hearing officer, Ms. Ellen Yuhan. However, Mr. Miller testified that he could not remember addressing the other allegations. (Trial Tr. at 42). Ms. Yuhan testified that the only evidence presented on
the issue of the Wood Property grade was the lack of back-up walls.See footnote
(Trial Tr. at 71).
Because the only evidence with respect to the Wood Property grade presented to the
State Board was the lack of concrete back-up walls, this Court will only consider that
The State Board correctly points out that the determination of grade is subjective and involves a qualitative judgment on the part of the assessor. See Reams v. State Bd. of Tax Comm'rs, 620 N.E.2d 758 (Ind. Tax Ct. 1993). This Court affords subjective determinations made by the State Board a great deal of deference, and this Court will not substitute its judgment for that of the State Board. However, the fact that a decision is committed to the State Board's subjective judgment does not mean that the decision is immune from judicial review. See Corey v. State Bd. of Tax Comm'rs, 674 N.E.2d 1062, 1066 (Ind. Tax Ct. 1997) (subjective judgment of neighborhood desirability must be supported by substantial evidence); Western Select Properties, 639 N.E.2d at 1073
(State Board must provide some reasoning to support a subjective judgment).
As described above, a C grade improvement is of average quality materials and workmanship and conforms to the base specifications of the model. This, however, does not mean all improvements that lack features presumed to exist in the pricing schedule are to be given a grade other than C. A C grade may be appropriate where the subject improvement contains other features (such as higher quality construction materials) that make up for the deviation from the base specifications used in developing the pricing schedule.See footnote 6 Cf. Componx, Inc. v. State Bd. of Tax Comm'rs, 683 N.E.2d 1372, 1375 (Ind. Tax Ct. 1997) (where building contains features not present in model, increase in grade may be appropriate).
In this case, Clark has demonstrated that the Wood Property lacks concrete back-up walls presumed to exist in the pricing schedule used to assess the Wood Property. By doing so, Clark has made a prima facie case showing that the State Board erred in assessing the property. This places the burden on the State Board to rebut Clark's evidence and explain why the C grade was appropriate. See Western Select Properties, 639 N.E.2d at 1074.
The State Board has not met its burden in this case. Here, all the State Board has done is to state in conclusory fashion that the Wood Property has some other
features that make up for the deviation from the base specifications and that the
property must have some other structure that performs the function of the back-up
This is insufficient to rebut Clark's prima facie case.
But for the existence of other features to make up for the lack of the concrete back-up walls, the Wood Property would be entitled to a grade of less than C. This necessarily follows from the fact that the Wood Property lacks features presumed to exist in the base specifications. However, in this case, the State Board has asserted that other features possessed by the Wood Property make up for that deficiency, such as nice brickwork. In order for the other features to make up for the lack of concrete back-up walls so as to make C the appropriate grade for the Wood Property, those features must add to the reproduction costSee footnote 8 of the Wood Property as much as the lack of back-up walls subtract from the reproduction cost of the Wood Property.See footnote 9
In support of its determination, the State Board offered the hearing officer's conclusion that the "pluses and minuses" of the Wood Property were at equipoise,See footnote 10 (Trial Tr. at 81) and the testimony of the hearing officer that comparable properties in the Lafayette area were given a C grade. (Trial Tr. at 105). As for the conclusion that the "pluses and minuses" were equipoised, substantial evidence, not conclusory statements, satisfies the State Board's burden.See footnote 11 See Thorntown Tel. Co., 629 N.E.2d at 965 ("Unsupported conclusions or findings are insufficient to contradict a prima facie case."); see also Talesnick v. State Bd. of Tax Comm'rs, No. 49T10-9509-TA-00092, slip op. at 9-10 (Ind. Tax Ct. Mar. 20, 1998). There is no evidence in the record to suggest that the "minuses" of the Wood Property are compensated by the "pluses" of the Wood Property. Consequently, the hearing officer's conclusion that a C grade was
appropriate for the Wood Property cannot be upheld on this basis.
As for the comparable properties, the evidence has shown that the State Board hearing officer lacks significant information concerning the characteristics of the Wood Property. She is therefore not in a position to determine whether other properties in the area are indeed comparable. Consequently, her comparison of other properties does not constitute the substantial evidence needed to support a State Board final determination. Accordingly, this issue is REMANDED to the State Board for further consideration.
b. Obsolescence Depreciation_Originally, the BOR awarded the Wood property no obsolescence depreciation. In its final determination, the State Board awarded the Wood Property 5% obsolescence depreciation. Clark contends that the Wood Property is entitled to more obsolescence depreciation. Clark supported his claim by providing financial statements to demonstrate allegedly excessive maintenance costs. Clark attributed the cause of the alleged excessive maintenance costs to the apartments serving a student market. Clark also pointed to the lack of an elevator, some building code violations, and an allegedly inadequate parking lot, as evidenced by a ratio of two parking spots per apartment unit coupled with the fact that some of the apartment units had more than two bedrooms.See footnote 12 (Trial Tr. at 28-29).
The regulations define obsolescence as a functional and economic loss of value.
Ind. Admin. Code tit. 50, r. 2.1-5-1 (1992) (codified in present form at id. r. 2.2-10-7(e)
(1996)). Functional obsolescence is caused by factors internal to the property and is
"evidenced by conditions within the property." Id. Economic obsolescence is caused
by factors external to the property. Id. The regulations also give a number of examples
of things that might cause obsolescence, such as a poor land to building ratio
(functional) and a termination of the need for the property due to changing economic or
social conditions (economic). Id. It is important to keep in mind that the obsolescence
of a given improvement must be tied to a loss of value. In the commercial context, that
loss of value usually means the loss of income generated by the property. See
Simmons, 642 N.E.2d at 560-61; GTE N., 634 N.E.2d at 887.
The regulations state that an "[a]ccurate determination of Obsolescence Depreciation will require the assessor to recognize the symptoms of obsolescence and exercise sound judgement in equating his observation of the property to the correct deduction in value from Reproduction Cost New." Ind. Admin. Code tit. 50, r. 2.1-5-1. Under this regulation, the determination of obsolescence is a two-step inquiry. The assessor must identify the causes of obsolescence and then quantify the amount of obsolescence to be applied.
Taxpayers may therefore challenge the obsolescence depreciation awarded a particular improvement on two bases. They may argue that there were causes of obsolescence not accounted for in the State Board final determination, or they may argue that the quantification of obsolescence is not supported by substantial evidence. Clark makes both challenges to the obsolescence awarded the Wood Property.
The parties agree that the building code violations cause the Wood Property at
least some degree of obsolescence. Clark presented prima facie evidence of other
possible causes of obsolescence, besides the building code violations. The allegedly
inadequate parking and the lack of an elevator could certainly reduce the rental income
that the property would otherwise receive, thereby causing economic loss.See footnote
Simmons, 642 N.E.2d at 561 (because neighborhood may cause economic loss, it must
be taken into consideration in determining obsolescence). This triggered the State
Board's duty to rebut the evidence and establish a basis for its final determination. See
Thorntown Tel. Co., 629 N.E.2d at 965.
The Court finds that the State Board rebutted Clark's prima facie case. At trial, the State Board hearing officer testified that the Wood Property was almost fully occupied and would have an excellent tenant base due to its location near Purdue
This means that the State Board could have rationally concluded that the
additional alleged causes of obsolescence did not cause the Wood Property to
experience a loss in value, i.e., a loss of earning capacity. A high occupancy rate is not
necessarily determinative of whether obsolescence exists because a taxpayer may
have had to reduce the rent to maintain the high occupancy rate; however, it does
serve to rebut a taxpayer's prima facie case and put the burden of going forward with
evidence back on the taxpayer. See GTE N., 634 N.E.2d at 887 (burden of going
forward with evidence may shift many times).
The Court comes to this conclusion partly for the sake of practicality. When a hearing officer inspects a rental property, the occupancy rate will be readily apparent. Upon seeing a high occupancy rate, a State Board hearing officer is entitled to presume that a large amount of economic obsolescence is not justified. The taxpayer should then come forward with evidence showing that, despite the high occupancy rate, obsolescence is justified. The taxpayer is the one who best knows his business, and it is the taxpayer who seeks to have the assessed value of his property reduced. Cf. Rotation Prods. Corp. v. Department of State Revenue, 690 N.E.2d 795, 798 (Ind. Tax
Ct. 1998). Clark has failed to come forward with evidence that would call into question
the conclusion that the additional alleged causes of obsolescence did not cause the
Wood Property to lose value. Consequently, Clark has failed to upset the State
Board's final determination on this basis.
Clark's second challenge to the obsolescence awarded the Wood Property concerns the quantification of the obsolescence at 5%. Clark argues that the 5% figure is not supported by substantial evidence. The regulations contain no specific guidance on how the obsolescence of a given improvement is to be quantified. However, the fact that the regulations provide no guidance in arriving at a specific figure does not mean that the State Board is absolved of its responsibility to support its quantification of obsolescence with substantial evidence. See Thorntown Tel. Co., 629 N.E.2d at 966 (complexity involved in calculating economic obsolescence makes it "imperative" that State Board give "authoritative explanation" for economic obsolescence). The State Board is required to make findings "sufficient to inform the parties of the evidentiary bases upon which the ultimate findings rest." Id. at 965(quoting Hale v. Review Bd. of Ind. Employment Sec. Div., 454 N.E.2d 882, 885 (Ind. Ct. App. 1983)). This facilitates judicial review and protects due process rights. See id. at 965-66. See also Corey, 674 N.E.2d at 1066 (The court must be sufficiently apprised of the basis of a State Board final determination so that it may properly review final determination.); Bailey Seed Farms v. State Bd. of Tax Comm'rs, 542 N.E.2d 1389, 1392 (Ind. Tax Ct. 1989) ("[C]ourt cannot properly review a determination unless it is apprised of the basis of the determination").
The State Board hearing officer testified that she gave the Wood Property a 5%
obsolescence depreciation because of certain fire code violations. (Trial Tr. at 61).
When asked by counsel at trial to explain the basis of her determination for 5%
obsolescence as opposed to 6% or 10%, the State Board hearing officer stated,
"There's really nowhere in the manual that says you give this amount for that. I mean
it's at your discretion." (Trial Tr. at 62). A reference to the discretion of a State Board
hearing officer hardly establishes a substantial evidentiary basis for the decision to
quantify the obsolescence depreciation of the Wood Property at 5%.See footnote
No. 49T10-9509-TA-00092, slip op. at 9 ("The State Board must do more than merely
assert that it valued the property correctly."); Thorntown Tel. Co., 629 N.E.2d at 965
This Court has rejected similar attempts by State Board hearing officers to explain how
they arrived at a specific amount of obsolescence depreciation. See Western Select
Properties, 639 N.E.2d at 1073 (remanding case to State Board where hearing officer
could not articulate why he chose 75% obsolescence over 95% obsolescence); see
also Canal Square Limited Partnership v. State Bd. of Tax Comm'rs, No. 49T10-9608-
TA-00095 (Ind. Tax Ct. Apr. 24, 1998).
The State Board's final determination also fails to provide the necessary support for the quantification of the Wood Property's obsolescence: "Review of the evidence and visual inspection determines that 5% obsolescence be applied." (Joint Ex. 1 at 12). This "explanation" fails to articulate in any manner how the cause of obsolescence
(i.e., the building code violations) equates "to the correct deduction in value from
Reproduction Cost New." Ind. Admin. Code tit. 50, r. 2.1-5-1. There is not even a
scintilla of evidence in the record to support the quantification of obsolescence at 5%.See footnote
See Bailey Seed Farms, 542 N.E.2d at 1391 (evidence to support final determination
must be more than a scintilla).
The Court is well aware that the assessment of property is not an exact science and that there are uncertainties in some taxation matters. See e.g., Estate of McClendon v. Commissioner, 135 F.3d 1017, 1021-23 (5th Cir, 1998) (due to uncertainty of calculation of the value of future interests, use of actuarial tables is "tolerated"); Yoon v. Commissioner, 135 F.3d 1007, 1013 (5th Cir. 1998) (establishment of taxpayer's net worth does not have to be done with mathematical precision, rather court must be satisfied that the IRS' determination of net worth is reasonably certain); Jones v. Commissioner, 903 F.2d 1301, 1303-04 (10th Cir. 1990) (reconstruction of taxpayer's income may be based on non-arbitrary estimates).
In this case, however, the quantification of the Wood Property's obsolescence is not reasonably certain. In its final determination, the State Board merely asserts its conclusion that the evidence in the case warrants that the Wood Property receive 5% obsolescence. There is no factual predicate for this conclusion, just the word of a
governmental official. Cf. Yoon, 135 F.3d at 1013 (IRS' determination of tax liability
without evidentiary predicate is a naked assessment). Because Clark has
demonstrated that the State Board has failed to support its decision to quantify the
Wood Property's obsolescence at 5%, this issue is REMANDED to the State Board for
The Court cannot help but note its frustration with this result. It is apparent that the taxpayer made a half-hearted case of obsolescence at the administrative level. It is equally apparent that the State Board made little or no effort to explain how it quantified the obsolescence of the Wood Property. The issue of the Wood Property's obsolescence then proceeded to this Court and forced this Court to choose between holding for the taxpayer, who presented no evidence of how the Wood Property's obsolescence should be quantified (other than a conclusory statement in a document entitled "Assessment Review and Analysis" (Joint Ex. 5 at 4)) and holding for the State Board, when the State Board had absolutely no evidence to support its choice of 5% obsolescence other than a reference to the apparently unfettered discretion of its hearing officer.
What concerns this Court is not the "equities" of this result: the bottom line is that Clark has demonstrated that the State Board's final determination of 5% obsolescence is unsupported by substantial evidence; consequently, the final determination must be reversed. What does concern this Court is the fact that the state of the law allows a taxpayer to present a half-hearted case of obsolescence before the State Board, call the State Board hearing officer to the stand in this Court to "explain"
the quantification of obsolescence, and secure a reversal of the final determination.
This results in a tremendous waste of time and scarce judicial resources.
This is an intolerable state of affairs. The administration of this state's property taxation system is best served by having taxpayers make detailed factual presentations of a given improvement's obsolescence to the State Board, the acknowledged property tax experts. The fact that the State Board's regulations concerning obsolescence are less than satisfactory does not alter this conclusion. It is axiomatic that the determination of a specific amount of obsolescence for an improvement that is the subject of an original tax appeal will ultimately be determined by the State Board. See Ind. Code Ann. § 6-1.1-15-8 (West Supp. 1997); Foursquare Tabernacle Church of God in Christ v. State Bd. of Tax Comm'rs, 550 N.E.2d 850, 852 (Ind. Tax Ct. 1990) (Tax Court cannot carry out administrative function of assessing property.). For these reasons, this Court will not consider taxpayer complaints concerning obsolescence in cases where the State Board holds a hearing concerning an assessment (whether on a Form 131 Petition or otherwise) after the date of this opinion, unless the taxpayer has identified the causes of the alleged obsolescence and presented probative evidence that would support a quantification of obsolescence at the administrative level. See footnote 17
This will force taxpayers to identify alleged causes of obsolescence and offer
evidence concerning the quantification of that alleged obsolescence before the case is
heard in this Court. This Court's review of State Board final determinations will
therefore be based on the evidence, and taxpayers will not be able to rely on the
inadequacies of the present method for quantifying obsolescence to get a second bite
at the apple.See footnote
concrete back-up walls, but that the other floors did not.See footnote
The State Board hearing
officer testified that she did not know whether the Salisbury Property contained back-up
walls. (Trial Tr. at 56). The State Board argues that there was no proof that the
Salisbury Property lacked concrete back-up walls and contends that the only real proof
concerning the issue is a photograph demonstrating the existence of a concrete back-
up wall. (Joint Ex. 12, photograph 14).
As was the case with the Wood Property, Clark has made a prima facie case demonstrating that the assessment of the Salisbury Property was erroneous. Mr. Miller's testimony is sufficient to establish the fact that concrete back-up walls did not exist on all floors of the Salisbury Property. Mr. Miller based his conclusion that there were no concrete back-up walls in the Salisbury Property in floors above the basement on his observation of the wall thickness. He stated, "There isn't enough room to have [concrete] block included in there." (Trial Tr. at 20). The existence of a photograph showing a concrete back-up wall would be troubling if the State Board hearing officer had ascertained whether concrete back-up walls existed on all floors of the Salisbury Property. However, the State Board hearing officer did not do so, and this Court is left with Mr. Miller's testimony.See footnote 20
This places the burden on the State Board to rebut this case by going forward
with substantial evidence to support its determination of a C grade for the Salisbury
Property. The State Board offered the hearing officer's conclusory statement that there
was nothing below average about the property (Trial Tr. at 96), and her opinion that
the Salisbury Property was comparable to other properties receiving a C grade (Trial
Tr. at 105).
This does not satisfy the State Board's burden. As with the Wood Property, the State Board has not shown that the Salisbury Property's lowered reproduction cost resulting from the deviation from the base specifications was balanced by other features of the Salisbury Property. Similarly, because the State Board hearing officer did not know whether the Salisbury Property conformed to the base specifications, she was not in a position to determine whether other properties were indeed comparable. Her comparison, therefore, cannot constitute the substantial evidence needed to support a State Board final determination. Accordingly, this issue is REMANDED to the State Board for further consideration.See footnote 21
b. Obsolescence Depreciation_Originally, the BOR awarded the Salisbury Property no obsolescence depreciation. In its final determination, the State Board awarded the Salisbury Property 5% obsolescence depreciation due to the lack of adequate parking. Clark contends that the Salisbury Property is entitled to more obsolescence depreciation. Clark makes the same arguments as he did with the Wood Property. Clark contends that there were additional causes of obsolescence not
accounted for in the State Board final determination, such as the lack of an elevator,
building code violations, and financial statements demonstrating allegedly excessive
maintenance costs. Clark also contends that the State Board failed to support its
quantification of the Salisbury Property's obsolescence at 5%.
As for Clark's first contention, the Court finds that Clark has made a prima facie showing that the State Board erred in its assignment of 5% obsolescence to the Salisbury Property. The building code violations and the lack of an elevatorSee footnote 22 could adversely affect the rental income that the property would otherwise receive. This constitutes a prima facie case of obsolescence. Therefore, it was incumbent upon the State Board to rebut this evidence and establish a basis for its final determination. See GTE N., 634 N.E.2d at 887.
The Court finds that the State Board has rebutted the taxpayer's prima facie case. At trial, the State Board hearing officer testified that, like the Wood Property, the Salisbury Property had a low vacancy rate.See footnote 23 The State Board could have rationally concluded that, in light of the Salisbury Property's high occupancy rate, the additional alleged causes of obsolescence did not cause the Salisbury Property to lose value. This placed the burden on Clark to come forward with additional evidence to undermine this conclusion. Clark has failed to do so. Consequently, the final determination of the State Board will not be disturbed on this basis.
However, the State Board's final determination of the obsolescence of the
Salisbury Property lacks a sufficient evidentiary basis. Although the State Board has
offered evidence (i.e., the low vacancy rate) that the Salisbury Property is not entitled
to a large amount of obsolescence depreciation, like its treatment of the Wood
Property, it has offered no justification for the specific amount of obsolescence
depreciation awarded the Salisbury Property. When asked to explain the 5%
obsolescence depreciation, the State Board hearing officer replied, "I gave it 5%
obsolescence just basically because it thought it might be a nice idea to do that
because of the parking." (Trial Tr. at 100). The quantification of obsolescence is not to
be done by nice ideas, but rather by substantial evidence. Accordingly, this issue is
REMANDED to the State Board for further consideration.
c. The Use of the GCM Pricing Schedule_Clark contends that the State Board erred in choosing the GCM Pricing Schedule instead of the GCR Pricing Schedule to assess the Salisbury Property. In support of its contention, Clark argues that, under the regulations, the Salisbury Property only has three stories, instead of four. This, according to Clark, means that the GCR Apartment model, which is applicable to "Commercial flats (1-3 stories)" should have been used.See footnote 24 Ind. Admin. Code tit. 50, r. 2.1-4-4 (1992) (codified in present form at id. r. 2.2-11-3 (1996)).
The crux of Clark's argument lies in the definition of "ground story" or "first story"
(the terms are synonymous) as defined in the regulations. See
Ind. Admin. Code tit. 50,
r. 2.1-6-1 (1992) (codified in present form at id. r. 2.2-16-2(43) (1996)).
story" is "the first story lying wholly above the ground level." Id. In the Salisbury
Property, the there are four floors containing apartments. (Joint Ex. 12, photograph 9).
One of those floors is partially below ground level. (Joint Ex. 12, photograph 9). This,
according to Clark, means that for purposes of the regulations, the Salisbury Property
only contains three stories.
Clark is incorrect. The regulations also define "basement" as a "building story which is wholly or partly below the grade level." Ind. Admin. Code tit. 50, r. 2.1-6-1 (emphasis added) (codified in present for at id. r. 2.2-16-2(5) 1996)). Basements have different reproduction costs under the pricing schedules than other floors.See footnote 25 See, e.g., Ind. Admin. Code tit. 50, r. 2.1-4-5, Schedule A.1 (1992) (codified in present form at id. r. 2.2-11-6, Schedule A.1 (1996)). However, that does not mean that a basement cannot be considered a story for the purpose of choosing a pricing schedule/model. The evidence in this case clearly demonstrated that the greater part of the "basement" was full of apartments and constructed similarly to the upper floors. Accordingly, it was permissible for the State Board to treat the "basement" as a story for purposes of classifying the Salisbury Property as a four-story apartment building. Cf. Herb v. State Bd. of Tax Comm'rs, 656 N.E.2d 890 (Ind. Tax Ct. 1995). Therefore, the State Board
did not abuse its discretion in choosing the GCM Pricing Schedule to assess the
Salisbury Property. Accordingly, this Court AFFIRMS the final determination of the
State Board on this issue.
Rynerson v. City of Franklin, 669 N.E.2d 964, 971 (Ind. 1996); see also Ind. Code Ann. § 4-21.5-5-14 (West 1991); McClain v. Review Bd. of State Dep't of Workforce Dev., No. 93S02-9708-EX-456 (Ind. Apr. 20, 1998) (discussing judicial review of agency determinations).
(base specifications) will almost certainly affect the reproduction cost of the building. The assessor may not cover up a deviation from the model merely by stating that the C grade definition is flexible. The flexibility allows non-conforming buildings to be assessed; it does not allow the deviations of non-conforming buildings to be ignored.
Converted from WP6.1 by the Access Indiana Information Network