ATTORNEY FOR PETITIONER:
TIMOTHY J. VRANA
SHARPNACK BIGLEY LLP
ATTORNEYS FOR RESPONDENTS:
ATTORNEY GENERAL OF INDIANA
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
WATERFORD DEVELOPMENT CO., INC., )
v. ) Cause No. 49T10-0205-TA-47
NOBLESVILLE TOWNSHIP ASSESSOR, )
HAMILTON COUNTY ASSESSOR, and )
HAMILTON COUNTY AUDITOR, )
Respondents . )
ON APPEAL FROM TWO FINAL DETERMINATIONS
OF THE INDIANA BOARD OF TAX REVIEW
NOT FOR PUBLICATION
July 10, 2003
Waterford Development Co., Inc., (Waterford), appeals two final determinations of the Indiana Board
of Tax Review (Indiana Board) dismissing its Petitions for Correction of Error (133
Petitions) for the 19972001 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
Waterford owns three commercial improvements in Noblesville Township, Hamilton County, Indiana. For
the years at issue, the improvements were assessed using the General Commercial Mercantile
(GCM) pricing schedule pursuant to Indianas assessment rules.
See footnote In May 2001, Waterford
filed eight 133 Petitions with the Hamilton County Auditor, arguing that because its
improvements were kit buildings,See footnote the General Commercial Kit (GCK) pricing scheduleSee footnote should have
been used to assess them as opposed to the GCM schedule. The
Hamilton County Property Tax Assessment Board of Appeals (PTABOA) denied Waterfords 133 Petitions
in July 2001.
On August 1, 2001, Waterford appealed the PTABOAs final determinations to the Indiana
Board, which issued two final determinations on March 26, 2002, denying Waterford any
relief. Specifically, the Indiana Board held that because choosing the applicable pricing
schedule requires an assessors subjective determination, Waterford could not bring its claim in
a 133 Petition.
On May 8, 2002, Waterford initiated an original tax appeal. On June
6, 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 Waterfords
133 Petitions were an inappropriate method by which to appeal the pricing schedule
used to assess its improvements. Waterford 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.
Waterford, however, is incorrect.
A taxpayer may file a 133 Petition to request a correction of errors
that resulted from one or more of the following reasons:
(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. CONCLUSION
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;
accordingly, a taxpayer is prohibited from using a 133 Petition to challenge any
part of an assessment that implicates a tax officials lawful exercise of subjective
discretion. U.S. Steel Corp. v. Lake County PTABOA et al., 785 N.E.2d
1209, 1215 (Ind. Tax. Ct. 2003). In a decision handed down concurrently
with this decision, the Court held that the decision to apply pricing schedules,
including the GCK pricing schedule, ultimately turns on judgment calls. ONeal Steel
v. Vanderburgh County PTABOA et al., no. 49T10-0204-TA-42, slip op. at 5 (Ind.
Tax Ct. July 10, 2003). For the reasons stated in ONeal
Steel, the decision to apply the GCK pricing schedule is subjective and cannot
be challenged in a 133 Petition. Id. Consequently, Waterford cannot use
a 133 Petition to challenge the assessors choice of pricing schedule.
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.1) (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).
In the alternative, Waterford argues that State Board Instructional Bulletin 92-1 (Instructional
Bulletin 92-1) mandates the use of the 133 Petition to appeal the assessment
of a kit building. However, Instructional Bulletin 92-1, which did mandate the
use of 133 Petitions in the case of kit building assessments for the
1991 assessment year, became a nullity as of the 1995 general reassessment.
ONeal Steel v. Vanderburgh County PTABOA et al., no. 49T10-0204-TA-42, slip op. at
8 (Ind. Tax Ct. July 10, 2003). Consequently, Southworth cannot rely on
Instructional Bulletin 92-1.
Waterford also argues that this Courts holding in Barth, Inc. v. State Bd.
of Tax Commrs, 705 N.E.2d 1084 (Ind. Tax. Ct. 1998) (Barth II) supports
the proposition that the decision to use the GCK pricing schedule is an
objective determination, not a subjective one. Nevertheless, the Court has made clear
that it regards the use of the 133 Petition in the case of
kit buildings to be in conflict with its case law on the use
of the 133 Petition. See, e.g., Barth, Inc. v. State Bd. of
Tax Commrs, 699 N.E.2d 800, 804 n.10 (Ind. Tax. Ct. 1998) (Barth I).
Accordingly, Barth II is limited to cases that arose before the 1995
general reassessment. For cases arising from the 1995 general reassessment and thereafter,
the Courts decision in ONeal Steel controls. See ONeal Steel v. Vanderburgh
County PTABOA et al., no. 49T10-0204-TA-42, slip op. (Ind. Tax Ct. July 10,