ATTORNEY FOR PETITIONER:
DOUGLAS J. DeGLOPPER
ATTORNEY AT LAW
ATTORNEYS FOR RESPONDENTS:
ATTORNEY GENERAL OF INDIANA
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
ONEAL STEEL, )
v. ) Cause No. 49T10-0204-TA-42
VANDERBURGH COUNTY PROPERTY TAX )
ASSESSMENT BOARD OF APPEALS, )
VANDERBURGH COUNTY ASSESSOR, & )
CENTER TOWNSHIP ASSESSOR, )
Respondents . )
ON APPEAL FROM A FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
July 10, 2003
ONeal Steel (ONeal) appeals the final determination of the Indiana Board of Tax
Review (Indiana Board) dismissing its Petitions for Correction of Error (133 Petitions) for
the 19961998 tax years (years at issue). The issue is whether the
Indiana Board erred in dismissing those petitions. For the following reasons, the
Court AFFIRMS the Indiana Boards final determination.
FACTS AND PROCEDURAL HISTORY
ONeal owns a commercial improvement in Center Township, Vanderburgh County, Indiana. For
the years at issue, the improvement was assessed using the General Commercial Industrial
(GCI) pricing schedule pursuant to Indianas assessment rules.
See footnote In May 2000, ONeal
filed three 133 Petitions with the Vanderburgh County Auditor, arguing that because its
improvement was a kit building,See footnote the General Commercial Kit (GCK) pricing scheduleSee footnote should
have been used to assess it as opposed to the GCI schedule.
The Vanderburgh County Property Tax Assessment Board of Appeals (PTABOA) denied ONeals 133
Petitions in May 2001.
On June 6, 2001, ONeal appealed the PTABOAs final determinations to the State
Board of Tax Commissioners (State Board). On March 15, 2002, the Indiana
Board of Tax Review (Indiana Board)See footnote issued one final determination denying relief on
ONeals 133 Petitions. Specifically, the Indiana Board held that because choosing the
applicable pricing schedule requires an assessors subjective determination, ONeal could not bring its
claim in a 133 Petition.
On April 29, 2002, ONeal initiated an original tax appeal. On May
30, 2003, the parties presented oral arguments. Additional facts will be supplied
ANALYSIS AND OPINION
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), review denied. Consequently, the Court will reverse
a final determination of the Indiana Board only if it is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; contrary to
constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or
limitations, or short of statutory jurisdiction, authority, or limitations; without observance of procedure
required by law; or unsupported by substantial or reliable evidence. Id. (citing
Ind. Code § 33-3-5-14.8(e)(1)(5) (Supp. 2001) (quotation marks omitted)).
The issue is whether the Indiana Board erred when it determined that ONeals
133 Petitions were an inappropriate method by which to appeal the use of
the GCI pricing schedule. ONeal argues that it should be allowed to
bring its claim in a 133 Petition because the decision whether or not
to apply the GCK pricing schedule does not require a subjective determination.
ONeal, however, is incorrect.
During the years at issue, a taxpayer had two methods by which to
appeal an assessment. First, a taxpayer could file a 133 Petition to
request a correction of errors that resulted from one or more of the
(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
(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 § 6-1.1-15-12(a) (1998). This Court has held that a taxpayer
may file a 133 Petition to correct only objective errors in an assessment.
U.S. Steel Corp. v. Lake County PTABOA et al., 785 N.E.2d 1209,
1215 (Ind. Tax. Ct. 2003). The second method of appeal was the
Form 130/131 Petition for Review of Assessment (130/131 Petition), which a taxpayer could
file to challenge any element of its assessment, including subjective errors, i.e., those
errors that involve the exercise of a tax officials subjective discretion. See
Bender v. State Bd. of Tax Commrs, 676 N.E.2d 1113, 1114 (Ind. Tax
Although the choice to use the GCK pricing schedule may seem relatively uncomplicated,
it nevertheless requires an assessors interpretation of the facts surrounding the improvements type
of interior column and roof beam support, which, for a kit building, may
include cold form cee channel supports, tapered columns, H-columns, and steel pole (or
post) columns. See Hamstra Builders, Inc. v. Dept of Local Govt Fin.,
783 N.E.2d 387, 39091 (Ind. Tax Ct. 2003). Similarly, where a taxpayer
presents a prima facie case that its improvement is a kit building, then
an assessor rebuts the taxpayers showing by articulating why the improvement's deviations from
the basic kit model, if any, increased the cost of the improvement so
as to make it uneconomical. Id. at 391.
Thus, unlike a determination that an assessor miscalculated the length of an improvement,
or that a building component is physically absent from an improvement, the choice
of the GCK pricing schedule ultimately turns on judgment calls. See id.
at n.4 (indicating that where observable facts support a taxpayers contention that its
improvement qualifies as a kit building, then the burden shifts to the state
to inspect the taxpayers improvement and form its own judgment as to whether
the improvement qualifies as a kit building). See also Bender, 676 N.E.2d
at 1116. Because it does, the choice of the GCK pricing schedule
is subjective and cannot be challenged in a 133 Petition. See Bender,
676 N.E.2d at 1116. Consequently, ONeal cannot use a 133 Petition to
challenge the assessors use of the GCI pricing schedule over the GCK pricing
schedule. See id.
In the alternative, ONeal argues that State Board Instructional Bulletin 92-1 (Instructional Bulletin
92-1) mandates the use of a 133 Petition to appeal the assessment of
a kit building. Again, ONeal is incorrect.
Prior to January 1, 2002, the State Board issued instructional bulletins to
advise tax officials of their duties and provide administrative forms to be used
by taxpayers, local and county officials as required by the various rules of
the state board. Ind. Admin. Code tit. 50, r. 4.2-1-5 (1996) (repealed).
On August 28, 1992, the State Board issued Instructional Bulletin 92-1 to clarify
the procedure for taxpayers who requested a 50% reduction in assessed value for
a kit building.
See State Board of Tax Commissioners, Instructional Bulletin 92-1
at 1 (August 28, 1992). Instructional Bulletin 92-1 indicated that to request
the reduction for kit buildings (i.e., a kit building adjustment), taxpayers were to
file a 133 Petition:
Example 3: Taxpayer files [a 130/131 Petition] within thirty (30) days of
receiving the statement for the first installment of 1991 pay 1992 taxes on
a structure that qualifies for the adjustment. [A] taxpayer may file an
appeal within thirty (30) days of receiving a tax bill if the taxpayers
assessment is changed without serving notice of the change to the taxpayer.
In this example, the assessment was not changed, therefore no notice was required.
The Petition should be denied and the taxpayer should be advised to
file a [133 Petition].
Instructional Bulletin 92-1 at 2 (emphasis added). The question, then, is what
effect does Instructional Bulletin 92-1 have on the appeals procedure for kit buildings
for the years at issue?
An instructional bulletin will be effective for the year designated and will remain
in effect for subsequent tax years unless specifically rescinded or revised by subsequent
directives or instructional bulletins. 50 IAC 4.2-1-5. Although the State Board
did not issue a subsequent directive or Instructional Bulletin to rescind or revise
Instructional Bulletin 92-1, none was needed. The plain text of Instructional Bulletin
92-1 makes clear that the State Board intended for taxpayers to use the
133 Petition to request a kit building adjustment only for situations where a
taxpayer (1) was entitled to the kit building adjustment for 1991 but (2)
did not receive it and (3) did not receive notice of a change
in assessment. See Instructional Bulletin 92-1 at 2. For the 1995 general
reassessment, however, all taxpayers received a notice of their reassessment. See Ind.
Code §§ 6-1.1-4-4;
See footnote 6-1.1-4-22(a)See footnote (1993). Therefore, as of the 1995 reassessment year,
all taxpayers had a reasonable opportunity to file a 130/131 Petition if they
believed they owned a kit building that had been overlooked for a base
rate reduction. Thus, the 1995 general reassessment eliminated the problem that the
State Board intended to address with Instructional Bulletin 92-1.
Because Instructional Bulletin 92-1, by its own terms, was limited to a unique
procedural problem that arose prior to the 1995 general reassessment, it became a
nullity as of the 1995 general reassessment and for each assessment year thereafter.
See 50 IAC 4.2-1-5. Consequently, ONeal cannot use a 133 Petition
to appeal the pricing schedule used to assess its improvement for the years
See footnote The Court therefore holds that the Indiana Board did not
err in dismissing ONeals 133 Petitions.
For the aforementioned reasons, the Court AFFIRMS the Indiana Boards final determination.
See Ind. Admin. Code tit. 50, r. 2.2-11-6 (Sched. A.2) (1996).
Generally, kit buildings are made of light[-]weight and inexpensive materials and are
fabricated at central manufacturing facilities and shipped to the construction site ready for
fast and efficient assembly.
Hamstra Builders, Inc. v. Dept of Local Govt
Fin., 783 N.E.2d 387, 390 (Ind. Tax Ct. 2003) (internal quotation marks omitted).
See Ind. Admin. Code tit. 50, r. 2.2-11-6 (Sched. A.4) (1996).
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).
Ind. Code §
6-1.5-1-3 (West Supp. 2001); 2001 Ind. Acts 198, § 95.
Therefore, a taxpayer is prohibited from using a 133 Petition to challenge
any part of its assessment that implicates a tax officials lawful exercise of
U.S. Steel Corp. v. Lake County PTABOA et al., 785
N.E.2d 1209, 1215 (Ind. Tax. Ct. 2003). Otherwise, a taxpayer could effectively
obtain a complete reassessment of its property, which would be an impermissible expansion
of Indiana Code Section 6-1.1-15-12. Hatcher v. State Bd. of Tax Commrs,
561 N.E.2d 852, 857 (Ind. Tax Ct. 1990).
In 1991, the State Board amended its rules to provide a 50%
reduction to the assessed value of pre-engineered kit-type structure[s].
Ind. Admin. Code
tit. 50, r. 2.1-4-5 (Scheds. A.1 & A.2) (1992) (repealed). Because some
assessors failed to apply the reduction, several taxpayers filed Form 130/131 Petitions for
Review of Assessment (130/131 Petitions). At that time, however, a 130/131 Petition
could be filed only after a tax official changed a taxpayers assessment or
reassessed its property then gave notice to the taxpayer of the change.
See Ind. Code § 6-1.1-15-1(a) (1993) (amended by 1993 Ind. Acts 41, §
11). See also Ind. Admin. Code tit. 50, r. 4.2-3-3 (1992) (providing
for the 130/131 Petition appeals procedure) (repealed). Assessors did not notify taxpayers
of their failure to give them the 50% reduction; therefore, under the law,
the taxpayers 130/131 Petitions were void. See I.C. § 6-1.1-15-1(a). Instructional
Bulletin 92-1 was intended to address this procedural anomaly.
A general reassessment of the real property of all the counties of
this state shall begin July 1, 1993 [and] shall be completed on or
before March 1 of .
Ind. Code § 6-1.1-4-4 (1993).
If any assessing official or any board . . . reassess any
real property under the provisions of this article, the official or board shall
give notice to the taxpayer, by mail, of the amount of the .
. . reassessment.
Ind. Code § 6-1.1-4-22(a) (1993).
ONeal filed a 130/131 Petition to appeal the assessment of its improvement
for the 1999 tax year, seeking the same relief it does here, which
the Vanderburgh Property Tax Assessment Board of Appeals (PTABOA) granted. ONeal suggests
that the PTABOAs final determination on its 1999 assessment collaterally estops the Indiana
Board from assessing the improvement differently for the years at issue. However,
because ONeal cannot file a 133 Petition for the years at issue, the
Court need not address this issue.