ATTORNEYS FOR PETITIONER:    ATTORNEYS FOR RESPONDENT:
STEPHEN E. DEVOE    STEVE CARTER    
B. KEITH SHAKE    ATTORNEY GENERAL OF INDIANA
MICHAEL R. HARPRING    Indianapolis, IN
HENDERSON DAILY WITHROW
& DEVOE     TED J. HOLADAY
Indianapolis, IN     DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
    

_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________ 

INDIANAPOLIS RACQUET CLUB, INC.,                                          )
                                                                               )
    Petitioner,                                                                )
                                                                               )
    v.                                                                         )   Cause No. 49T10-0206-TA-60
                                                                               )
WASHINGTON TOWNSHIP                                                            )              
(MARION COUNTY                                                                 ) ASSESSOR,         )
                                                                               )
    Respondent.                                                                )    
 _____________________________________________________________________

ORDER ON PETITIONER’S PETITION FOR REHEARING


NOT FOR PUBLICATION
May 28, 2004


FISHER, J.

    Comes now the Petitioner, Indianapolis Racquet Club, Inc. (IRC), and files a Petition for Rehearing pursuant to Indiana Appellate Rules 54 and 63. In its Petition, IRC challenges this Court’s holding in Indianapolis Racquet Club, Inc. v. Washington Township (Marion County) Assessor, Cause No. 49T10-0206-TA-60, slip opinion (Ind. Tax Ct. Feb. 6, 2004) (“IRC II”). Having reviewed IRC’s Petition and having held a hearing thereon, the Court now DENIES IRC’s Petition.
FACTS AND PROCEDURAL HISTORY

    IRC owns and operates a commercial tennis club in Washington Township, Marion County, Indiana. IRC’s facility consists of 24 tennis courts (both indoor and outdoor), a lobby, pro-shop, locker rooms, and various office and retail areas.
    On March 11, 1991, IRC appealed its 1989 assessment to the State Board of Tax Commissioners (State Board). In its appeal, IRC claimed that the indoor tennis court area of its facility was incorrectly assessed using the General Commercial Mercantile (GCM) health club model. See footnote IRC claimed that that portion of the building should have been assessed using the General Commercial Industrial (GCI) light warehouse model. The State Board denied IRC’s claim.
    IRC subsequently filed an original tax appeal. This Court, after conducting a trial, issued a decision in which it recognized that IRC had submitted evidence showing how the features of the tennis court area of its facility were dissimilar to those presumed in the GCM health club model, as well as how they compared with those presumed in the GCI light warehouse model. See Indianapolis Racquet Club, Inc. v. State Bd. of Tax Comm’rs, 722 N.E.2d 926, 938-39 (Ind. Tax Ct. 2000) (“IRC I”), rev’d on other grounds by 743 N.E.2d 247 (Ind. 2001). Consequently, the Court ruled that,
the evidence shows that the tennis facility’s features clearly better match those of the light warehouse model than those of the health club model. Therefore, the Court concludes that IRC has carried its burden to show that the State Board abused its discretion by applying the wrong model in assessing the tennis facility.

Id. at 939. The Court subsequently remanded the matter for the State Board to “apply the model that most closely resembles the physical structure of the tennis facility . . . and [to] recalculate the facility’s reproduction costs based upon that model.” Id. at 941. In so doing, however, the Court stated:
[IRC] is reminded that, on remand, it bears the burden of going forward with probative evidence . . . concerning the appropriate model to use in calculating the base rate for the . . . indoor tennis facility at issue, including but not limited to evidence regarding the proper grade to be assigned [to] the subject improvement.

Id. (internal citation and footnote omitted).
    On August 16, 2001, the State Board conducted a remand hearing. On April 17, 2002, the Indiana Board See footnote issued a final determination in which it applied the GCI light warehouse model base rate to the tennis court area of IRC’s facility.
    IRC filed another appeal with this Court on June 3, 2002, claiming that when the Indiana Board applied the GCI light warehouse model base rate to its building, it was required to make several adjustments to that base rate to account for the fact that the building lacked certain features presumed in that model. More specifically, IRC alleged that the Indiana Board should have adjusted the GCI light warehouse model base rate to account for the tennis court area’s lack of a concrete floor slab, interior walls and partitioning, and lighting. IRC also alleged that the Indiana Board was required to adjust both the grade and the physical depreciation factor assigned to its improvement. After hearing the parties’ oral arguments on October 27, 2003, this Court issued an opinion in which it affirmed the Indiana Board’s final determination in part and reversed it in part. See IRC II, slip op. at 7-17.
    On March 8, 2004, IRC filed this Petition for Rehearing. In its Petition, IRC requests this Court to reconsider its ruling with respect to the issues of interior walls and partitioning and physical depreciation. The Court held a hearing on IRC’s Petition on April 19, 2004. Additional facts will be supplied as necessary.

ANALYSIS & ORDER
Interior Walls and Partitioning

    In IRC II, this Court explained that when IRC requested its various base rate adjustments, it bore the burden of showing how much of an adjustment to which it believed it was entitled and to support that amount with cogent argument and probative evidence. See id., slip op. at 6-10. In turn, the Court determined that, in several instances, IRC failed to meet this burden and was, therefore, not entitled to the relief it sought. See id. Now, in its Petition, IRC argues that this holding should not apply with respect to the adjustment it sought for lack of interior walls and partitioning. Indeed, IRC asserts that
th[e] Court lumped this [adjustment] with the [adjustments] which involved exercising discretion to select a value from a range. IRC respectfully submits that in this, the Court erred, since there are no ranges of values or discretion allowed in selection of the appropriate value for a downward adjustment for lack of dividing walls. . . . [T]he downward adjustment is specified as [$0.66 per square foot] and not a range.

(Pet’r Pet. for Reh’g at 4.) IRC’s argument, however, ignores the reason why the Court denied this adjustment in the first place.
    At the remand hearing, IRC stated that its facility did not have interior walls or partitioning. (See Cert. Admin. R. at 369.) IRC never stated at the remand hearing, however, that it wanted an adjustment to account for the lack of partitioning. (See Cert. Admin. R. at 348-433.) After the remand hearing, when the Indiana Board provided IRC a second opportunity to present any additional evidence to substantiate its various claims in its appeal, IRC never mentioned an adjustment for interior walls and partitioning. (See Cert. Admin. R. at 196-201.) Not surprisingly, the Indiana Board did not, in its final determination, address the issue of an adjustment for lack of interior walls/partitioning.
    In turn, when the appeal arrived at this Court, the Court had to determine whether there was substantial evidence in the administrative record to support the Indiana Board’s final determination. See Ind. Code Ann. § 33-3-5-14.8(e) (West Supp. 2003). Because IRC never articulated its claim for an interior wall/partitioning adjustment during the administrative process, there was nothing in the administrative record to refute the Indiana Board’s finding (or lack thereof) on the issue. Accordingly, this Court now declines IRC’s request that the Court change its ruling on this issue. See footnote

II. Depreciation

    In its Petition, IRC asserts:
For [the] 1989 [assessment], the improvements at IRC’s Dean Road facility were originally classified as a [General Commercial M[ercantile] Health Club. A 35% [physical] depreciation adjustment was applied[.]

IRC appealed the assessment of the tennis court area of these improvements but it did not appeal the assessment of the lobby and locker room areas. This Court ruled that the tennis court area should not have been assessed as a GCM Health Club. The Court remanded for a new determination of the proper use type for the tennis court area.

At the re[mand] hearing, neither side raised any issue regarding the 35% depreciation adjustment for the lobby and locker room areas. No evidence was offered by either side that a different depreciation percentage should be used for that portion.

When the [Indiana] Board performed the reassessment it apparently decided that the depreciation adjustment should be reduced to 30%. It then applied the 30% depreciation adjustment both to the tennis court area and the lobby and locker room areas. There is absolutely no discussion in the [Indiana Board’s final determination] regarding the reduction of the depreciation adjustment for any of these areas from 35% to 30%. Thus, it is impossible to know whether that change was intentional or inadvertent.

IRC appealed this reassessment to this Court. With respect to the depreciation adjustment, IRC raised two issues. First, IRC contended that the proper depreciation adjustment percentage for the tennis court is 45%, not 30%. Second, IRC contended that the 35% depreciation factor applicable to the lobby and locker rooms should not have been reduced.

On the first issue, this Court ruled against IRC on the basis that IRC had not properly raised the depreciation issue for the tennis court area. While IRC respectfully disagrees with that ruling, it accepts it and does not seek a rehearing on that issue.

With respect to the second issue, however, IRC respectfully requests that this Court change its ruling[.] If the issue of depreciation was not properly raised and this deficiency bars changing the depreciation adjustment factor applicable to the tennis court area, then this same deficiency must also bar the [Indiana] Board from unilaterally changing the original depreciation adjustment factor of 35% applicable to the tennis court area and also the lobby and locker room areas.

(Pet’r Pet. for Reh’g at 1-3 (internal citations omitted).) IRC seems to be confused.
    When IRC filed its verified petition for judicial review with this Court, it alleged:
The physical depreciation for the entire building was determined by the [Indiana] Board to be 35[%] based on the 40 year life expectancy table . . . While the 40 year life life expectancy table is the correct table for the rest of the building, it is not the correct table to use for the Tennis Court Area. . . . With respect to the [] tennis court area of the building, a different life expectancy table is specifically required. . . . [T]he 30 year life expectancy should be used for, among others, “light pre-engineered buildings[.]” The comparable depreciation under this schedule for an average building of the same age is 45[%]. Accordingly, the physical depreciation of 45[%] as determined from the 30 year life expectancy is the correct depreciation for the Tennis Court Area.

(Pet’r V. Pet. for Judicial Review of a Final Determination of the Indiana Board of Tax Review at 9-10, filed June 3, 2002.) Thus, IRC complained to this Court that the depreciation factor assigned to the tennis court area – and the tennis court area alone – was improper. It never raised the issue that the depreciation factor assigned to the locker and lobby areas of its facility was improper. Furthermore, IRC did not address the depreciation factor assigned to the lobby and locker room areas of its facility in either its written briefs or in its oral argument. (See Pet’r Br. at 1-19; Pet’r Reply Br. at 1-8; Oral Argument Tr. at 20-21.)
    Accordingly, this Court, on review, examined the administrative record to determine whether or not the Indiana Board’s final determination – with respect to the issue of the depreciation assigned to the tennis court area - was supported by substantial evidence. See footnote Now, in its Petition for Rehearing, IRC attempts to place an entirely new issue before the Court. The Court rejects its attempt.     

CONCLUSION

    For the foregoing reasons, the Court DENIES IRC’s Petition for Rehearing.
SO ORDERED this 28th day of May, 2004.

         _____________________________
            Thomas G. Fisher, Judge
            Indiana Tax Court
Distribution:

Stephen E. DeVoe
B. Keith Shake
Michael R. Harpring
HENDERSON DAILY WITHROW & DEVOE
2600 One Indiana Square
Indianapolis, IN 46204

Steve Carter
Attorney General of Indiana
By: Ted J. Holaday
Deputy Attorney General
Indiana Government Center South, Fifth Floor
402 West Washington Street
Indianapolis, IN 46204-2770

Indiana Board of Tax Review
100 N. Senate Avenue
Room N-1058(A)
Indianapolis, IN 46204

Footnote: IRC also challenged the valuation of its land. That issue, however, is not part of this Petition.
Footnote: On December 31, 2001, the legislature abolished the State Board of Tax Commissioners (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 State Board. Ind. Code Ann. §§ 6-1.5-1-3; 6-1.5-4-1 (West Supp. 2003); 2001 Ind. Acts 198 § 95. Thus, when a final determination was issued on IRC’s appeal in April 2002, it was issued by the Indiana Board.

Footnote: IRC has asserted that, on remand, the Indiana Board was instructed to reassess the property. Because IRC had no idea what the new assessment would be, it could not have possibly anticipated that the Indiana Board would not allow the adjustment – let alone present a case arguing against such an error. This assertion completely ignores this Court’s explicit order that, on remand, IRC bore the burden of proof and was therefore required to present any issue, calculation, argument, or theory relevant to a proper calculation of its base rate. See IRC I, 722 N.E.2d 926, 941 (Ind. Tax Ct. 2000), rev’d on other grounds by 743 N.E.2d 247 (Ind. 2001). See also IRC II, slip op. at 3.
Footnote: In so doing, the Court determined that IRC failed to raise the issue of physical depreciation of its tennis court area at the administrative level. IRC II, slip op. at 17. As mentioned supra, IRC does not seek rehearing as to this determination. (Pet’r Pet. for Reh’g at 2.)