ATTORNEY FOR PETITIONER:
DAVID L. PIPPEN
ATTORNEY AT LAW
ATTORNEYS FOR THE RESPONDENT:
ATTORNEY GENERAL OF INDIANA
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
WALKER MANUFACTURING CO., )
by T.E. CONNER and R.L. PORTER )
and CWB LTD PARTNERSHIP III, )
v. ) Cause No. 49T10-9701-TA-00006
DEPARTMENT OF LOCAL )
ON APPEAL FROM A FINAL DETERMINATION
OF THE STATE BOARD OF TAX COMMISSIONERS
July 11 , 2002
Walker Manufacturing by Thomas E. Conner, Robert L. Porter, and CWB LTD Partnership
III (Walker) appeals the final determinations of the State Board of Tax Commissioners
(State Board) of Walkers 133 Petitions for the 199091 tax years and its
131 Petitions for the 1992 tax year assessing Walkers land and improvements.
The Court restates the issues as:
I. Whether the Court has subject matter jurisdiction over Walkers 133 Petitions; and
II. Whether Walker presented a prima facie case that its land and improvements for
the 1992 tax year should be reduced because its land was improperly classified
and because its improvements are entitled to grade and obsolescence adjustments.
FACTS AND PROCEDURAL HISTORY
For the following reasons, the Court DISMISSES Walkers appeal of its 133 Petitions
for lack of subject matter jurisdiction and AFFIRMS that State Boards final determinations
of Walkers 131 Petitions.
Walker is a manufacturing business in the city of Ligonier in Noble County,
Indiana. It owns two parcels of land with an improvement on each
parcel. The parcel numbers are 075-030-155-00 (parcel 155) and 075-030-210-00 (parcel 210).
For the 198991 tax years, Walker filed with the Noble County Board
of Review (BOR) three Form 133 Petitions for Correction of Error (133 Petition)
for parcel 155 and its improvement, arguing that its improvement had been assessed
excessively for various building components and assessed for building components that were absent
from the improvement.
See footnote Walker also challenged parcel 155s land classification. The
BOR denied Walkers petitions and forwarded them to the State Board.
On November 24, 1993, the State Board issued its final determination on Walkers
133 Petitions.See footnote In particular, the State Board granted Walker no relief on
the issues of the various building components or land classification. Moreover, the
State Board assessed certain yard improvementsSee footnote for which Walker had not previously been
On January 7, 1994, Walker appealed the State Boards final determinations to this
Court. Among other things, Walker sought to challenge the fact that it
had been afforded no hearing on the State Boards assessment of its yard
improvements. Walker also sought to challenge the use of what it believed
was subjective judgment by the State Board in reaching its final determinations.
Walker, however, did not timely initiate its original tax appeal; consequently, on
August 25, 1994, this Court dismissed Walkers appeal for the lack of subject
matter jurisdiction.See footnote
Walker Mfg. v. State Board of Tax Commrs, Nos. 49T10-9401-TA-00009
& 49T10-9401-TA-00011 slip op. at 13 (Ind. Tax Ct. Aug. 25, 1994).
On September 27, 1994, Walker re-filed with the BOR its claims in subsequent
133 Petitions for the 199091 tax years.
See footnote In this second batch of
133 Petitions, Walker raised the same claims that this Court had dismissed one
month earlier for the lack of subject matter jurisdiction. The BOR again
denied Walkers 133 Petitions. On October 27, 1994, the BOR forwarded Walkers
133 Petitions to the State Board. On November 22, 1996, the State
Board issued final determinations denying Walkers 133 Petitions yet again.
For the 1992 tax year, Walker filed with the BOR a Form 130
Petition for Review of Assessment for both parcels and improvements.See footnote The BOR
denied Walkers 130 Petitions on November 17, 1993. On November 24, 1993,
Walker filed two Form 131 Petitions for Review of Assessment (131 Petition) with
the State Board. Walker argued that the assessment of the land and
improvements for parcels 155 and 210 should have been reduced for the 1992
tax year because the land was improperly classified and because the improvements were
entitled to grade and obsolescence adjustments. On November 22, 1996, the State
Board issued its final determinations. It made no changes to the land
classifications for either parcel, nor did it change the grade or obsolescence for
On January 3, 1997, Walker initiated an original tax appeal of the State
Boards final determinations on its 131 and 133 Petitions. A trial was
held on September 2, 1998. The Court heard oral arguments on February
25, 1999. Additional facts will be supplied when necessary.See footnote
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. Thousand Trails, Inc.
v. State Bd. of Tax Commrs, 757 N.E.2d 1072, 1075 (Ind. Tax Ct.
2001). 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.
Furthermore, a taxpayer who appeals to this Court from a State Board final
determination bears the burden of showing that the final determination was invalid.
Id. The taxpayer must present a prima facie case by submitting probative evidence,
i.e., evidence sufficient to establish a given fact that, if not contradicted, will
remain sufficient. Id. Once the taxpayer presents a prima facie case,
the burden shifts to the State Board to rebut the taxpayers evidence and
support its findings with substantial evidence. Id.
I. Subject Matter Jurisdiction
The Indiana legislature has expressly provided that [i]f a taxpayer fails to comply
with any statutory requirement for the initiation of an original tax appeal, the
tax court does not have jurisdiction to hear the appeal.
§ 33-3-5-11(a); Thousand Trails, 757 N.E.2d at 107576. A taxpayer may file
a 133 Petition when it discovers an error that can be corrected without
resort to subjective judgment and according to objective standards[.] Hatcher v. State
Bd. of Tax Commrs, 561 N.E.2d 852, 857 (Ind. Tax Ct. 1990).
If the State Board denies a taxpayers 133 Petition, the taxpayer may appeal
that denial, but it must do so by initiating an original tax appeal
within forty-five days of receiving the State Board's notice of its final determination.
Ind. Code § 6-1.1-15-5(c)(d) (1998); see also Indiana Model Co., Inc. v.
State Bd. of Tax Commrs, 639 N.E.2d 695, 698 (Ind. Tax Ct. 1994)
(finding that Indiana Code Section 6-1.1-15-5 imposes a jurisdictional time limit on a
taxpayer initiating an original tax appeal).
This Court dismissed Walkers 133 Petitions for the 198991 tax years for the
lack of subject matter jurisdiction because Walker did not timely initiate its tax
appeal. Walker Mfg., Nos. 49T10-9401-TA-00009 & 49T10-9401-TA-00011, slip op. at 13.
Walker, having re-filed the same claims in subsequent 133 Petitions for the 199091
tax years, is back before the Court. In regards to Walkers re-filed
133 Petitions, Walkers tax representative, M. Drew Miller of Landmark Appraisals, Inc., testified
Q [Schiff]. Did you file a 133 petition for 89, 90 and 91?
A [Miller]. Yes, we did.
Q. . . . And you got a final determination and you didnt appeal,
A. I believe it was appealed.
Q. Where was it appealed to?
A. The Tax Court.
Q. It was appealed to the Tax Court?
A. And I believe it was filed late.
Q. So you were dismissed on it?
Q. So your remedy was to bring another 133 appeal?
A. [The State Board] still failed to address the issues that we had before
them, but on the other hand picking up what I consider subjective [sic].
* * * *
Q. What authority, if you know, do you have to bring a second 133
A. To my knowledge there isnt any time limit that you can only file
* * * *
A. [The 133 Petitions] were appealed twice.
. . . .
Most of it is the same issues that weve discussed today, the lack
of features that are assumed present.
. . . .
[W]e were appealing the addition of those [yard] improvements based on being picked
up with judgmental considerations without the opportunity to address those subjective areas, as
well as the interior components and exterior components that we feel shouldve been
Q. But you tried that once and were dismissed?
A. [The State Board] ignored the issues[.]
Q. In other words, you tried to make that appeal to this court and
you were dismissed?
A. . . . . It was dismissed because of a mix-up in
the attorneys officeSee footnote and they got filed late.
II. 1992 Assessment of Parcels 155 & 210
(Trial Tr. at 4244 (footnotes added).)
Miller apparently was under the misapprehension that if Walker had missed the forty-five
day deadline for initiating an original tax appeal of its claims in its
first 133 Petitions, then all it needed to do was to re-file its
claims in subsequent 133 Petitions and appeal the State Boards final determination of
those petitions within forty-five days. However, if Walker wished to appeal the State
Board's final determination of the claims that Walker made in its first batch
of 133 Petitions, then the law required Walker to initiate an original tax
appeal within forty-five days of receiving the State Board's final determination of those
See I.C. § 6-1.1-15-5(c)(d); Indiana Model Co., 639 N.E.2d at 698.
The law did not authorize Walker to resurrect its claims by re-filing
its 133 Petitions with the BOR, nor did the time limit for initiating
an original tax appeal begin anew after Walker re-filed its 133 Petitions.
See I.C. 6-1.1-15-5(d).
In short, Walkerwhich has not shown that it raised any new issues in
its re-filed 133 Petitionsappears to be trying for a second bite at the
apple here. The law, however, provides Walker with no second bite at
the apple; when a taxpayer does not comply with the provisions of Indiana
Code Section 6-1.1-15-5, then this Court does not have subject matter jurisdiction over
the taxpayers claim. I.C. § 33-3-5-11(a); Indiana Model Co., 639 N.E.2d at
698. Cf. Lakeview Village, Inc. v. Board of County Commissioners of Johnson
County, 659 P.2d 187, 197 (Kan. 1983) (holding that time limit for initiating
a tax appeal under Kansas jurisdictional statute was a limitation upon the right
itself, so that when time expires, the right to bring such an action
is extinguished); Automobile Sales Co. v. Johnson, 122 S.W.2d 453, 458 (Tenn. 1938)
(holding that when a statute which creates a right of action expressly limits
the time in which suit to enforce the right may be brought, .
. . limitation of the remedy is a limitation of the right.).
The fact remains that pursuant to Indiana Code Section 6-1.1-15-5, Walker did not
timely appeal the State Boards final determination of the claims Walker raised in
its first batch of 133 Petitions. Thus, the Court does not have
subject matter jurisdiction over those claims regardless whether Walker re-filed them in subsequent
Were the Court to hold otherwise, Walker would be able to confer subject
matter jurisdiction on this Court after it has already dismissed Walkers claims for
the lack of subject matter jurisdiction. No party, however, can confer subject
matter jurisdiction on this Court.
Lake County Council v. State Bd. of
Tax Commrs, 706 N.E.2d 270, 274 (Ind. Tax Ct. 1999), reversed on other
grounds. Moreover, were the Court to hold otherwise, it would nullify the
forty-five day time limit for initiating an original tax appeal of a State
Board final determination of a 133 Petition. This Court presumes that the
legislature did not intend to enact a nullity when it provided for the
forty-five-day time limit for initiating an original tax appeal from a State Board
final determination under Indiana Code Section 6-1.1-15-5(d)(1). See City Securities Corp. v.
Dept of State Revenue, 704 N.E.2d 1122, 1126 (Ind. Tax Ct. 1998) (holding
that the Court will not interpret the law in such a way as
to render a jurisdictional statute a nullity); Hatcher v. Indiana State Bd. of
Tax Commrs, 561 N.E.2d 852, 856 (Ind. Tax Ct. 1990) (refusing to interpret
the real property tax appeal process in such a way as to render
meaningless a limitation on the time to initiate an original tax appeal).
Accordingly, the Court again DISMISSES Walkers appeal of its 133 Petitions for the
lack of subject matter jurisdiction.
The Court now considers whether Walker presented a prima facie case showing that
the assessments of the parcel 155 and 210 land and improvements for the
1992 tax year should be reduced because the land for both parcels was
improperly classified and because the improvements are entitled to grade and obsolescence adjustments.
Walker argues that, regarding these issues, the State Board did not support
its findings with substantial evidence. The State Board responds that Walker did
not present any probative evidence in support of its claims.
Before the State Boards duty to support its findings with substantial evidence is
triggered, a taxpayer must satisfy its burden by submitting probative evidence sufficient to
establish a prima facie case. Thousand Trails, 757 N.E.2d at 1075.
In this case, Walkers evidence for both parcels consisted of Millers Assessment Review
and Analysis (Analysis) for each parcel. (Petr Exs. 12.)
A. Land Classification
The State Boards rules classify land as primary, secondary, or undeveloped, which affects
the lands assessed value. Ind. Admin. Code tit. 50, r. 2.1-4-2(f) (1992);
White Swan Realty v. State Bd. of Tax Commrs, 712 N.E.2d 555, 561
(Ind. Tax Ct. 1999), review denied. As for the classification of the
land for parcel 155, Miller stated the following in his Analysis:
The land should be classified and priced as follows:
2.7 Acres Primary @ $5,000 = $13,500
7.3 Acres Undeveloped = 10,950
TOTAL TRUE TAX VALUE LAND $24,450
(Petr Ex. 2.) As for the classification of the land for parcel 210,
Miller stated the following in his Analysis:
The land should be classified and priced as follows:
1.8 Acres Primary @ $5,000 = $14,000
2.6 Acres Secondary @ $3,500 = 9,100
6.42 Acres Undeveloped @ $1,500 = 9,630
TOTAL TRUE TAX VALUE LAND $32,730
(Petr Ex. 1.) Millers contentions are merely conclusory because he did not
explain how he arrived at these subtotals or totals. Conclusory statements do
not constitute probative evidence; consequently, Millers contentions are not probative evidence. See
Miller Structures, Inc. v. State Bd. of Tax Commrs, 748 N.E.2d 943, 953
(Ind. Tax Ct. 2001).
In general, every improvements materials, design, and workmanship are collectively assigned a grade
from A to E, which represents a numeric multiplier that raises or lowers
an improvements assessed value. Ind. Admin. Code tit. 50, r. 2.1-4-3(f) (1992).
For structures with a grade of B, C, or D that qualify
for intermediate grade levels, the State Boards rules provide for a +1, +2,
-1, or -2 designation suffixed to the grade designation. Id. Grades
that fall below an E are indicated by a -1 through a 4
suffixed to the grade designation. Id. Grades that fall above
an A are indicated by a +1 through a +10 suffixed to the
grade designation. Id.
For parcel 155, Miller stated in his Analysis that
[t]he subject property is substantially inferior to the base model as described in
the assessment manual. In addition, the subject lacks features that are included
in base price such as partitioning, type of heat and type of lighting
as well as the construction material of the exterior walls. To adjust
for these discrepancies, a grade no higher than a D or 80% factor
should be applied.
(Petr Ex. 2.) Miller also attached to the Analysis the value schedules
for three putatively comparable properties located in Waterloo, Kendallville, and Evansville, Indiana, respectively,
but offered no explanation of these schedules. (Petr Ex. 2.) As
for Walkers request for a grade adjustment for parcel 210, Miller stated in
his Analysis that [t]he subject property is substantially inferior to the base model
as described in the assessment manual. To adjust for these differences in
quality of materials and workmanship, a grade no higher than D-1 or a
70% factor should be applied. (Petr Ex. 1.) Miller also attached
to this Analysis the value schedule of a putatively comparable property located in
New Paris, Indiana, but offered no explanation of the schedule. Again, Miller
presented nothing here but conclusory statements because he neither cited to any State
Board rule on grade that would support his conclusions as to the appropriate
grade for each improvement nor did he explain the significance of the attached
cost schedules. See Miller Structures, 748 N.E.2d at 953, 954. Accordingly,
Millers contentions do not constitute probative evidence of grade.
The State Boards rules define obsolescence as a functional or economic loss of
value. Ind. Admin. Code tit. 50, r. 2.1-5-1 (1992). As
for an obsolescence adjustment for parcel 155, Miller stated in his Analysis that
[t]he subject suffers from the following highlighted causes of obsolescence depreciation. To
adjust of [sic] this loss in value 30% obsolescence depreciation should be applied.
(Petr Ex. 2.) As for an obsolescence adjustment for parcel 210,
Miller stated in his Analysis that [o]bsolescence depreciation may need to be applied
if reproduction cost exceeds 85% of market cost. (Petr Ex. 1 (emphasis
added).) Miller neither explained what the highlighted causes of obsolescence were for
parcel 155, nor did he cite any State Board rule for the novel
proposition that an obsolescence adjustment may need to be applied where an improvements
reproduction cost exceeds its market cost by eighty-five percent. Millers claims therefore
are merely conclusory and not probative of obsolescence. See Miller Structures, 748
N.E.2d at 954.
Because Walker presented no probative evidence, it did not make a prima facie
case as to land classification, grade, or obsolescence. As a result, the
State Boards duty to support its findings with substantial evidence was not triggered.
Thousand Trails, 757 N.E.2d at 1075. Accordingly, the Court AFFIRMS the
State Boards final determination of Walkers 131 Petitions.
For the foregoing reasons, the Court DISMISSES Walkers 133 Petitions for the lack
of subject matter jurisdiction and AFFIRMS the State Boards final determination of Walkers
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. Pub. L. No. 198-2001, § 119(b)(2). Effective January 1,
2002, the Legislature created the Department of Local Government Finance (DLGF), and the
Indiana Board of Tax Review (Indiana Board).
Ind. Code §§ 6-1.1-30-1.1; 6-1.5-1-3
(West Supp. 2001); Pub. L. No. 198-2001, §§ 66, 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 § 6-1.5-5-8 (West Supp. 2001) (eff. 2002); Pub.
L. No. 198-2001, § 95. Nevertheless, the law in effect prior to
January 1, 2002 applies to these appeals. I.C. § 6-1.5-5-8. See
also Pub. L. No. 198-2001, § 117. Although the DLGF has been
substituted as the Respondent, this Court will still reference the State Board throughout
Parcel 155s land and improvement were assessed as follows: for the
1989 tax year, $407,970; for the 1990 tax year, $410,870; and for the
1991 tax year, $414,840. The record does not reveal what Walker believed
its assessments should have been.
Footnote: The State Board assessed parcel 155 and its improvement as follows:
for the 1989 tax year, $411,940; and for the 199091 tax years, $414,840.
Footnote: The record does not reveal what the yard improvements were.
generally Ind. Admin. Code tit. 50, r. 2.1-4-5 (1992) (Schedule G) (providing cost
schedules for various commercial yard improvements).
Walker incorporates by reference the Courts unpublished order into the present record.
Footnote: Walker concluded that it was time-barred from taking further action on its
133 Petition for the 1989 tax year. As for the 133 Petitions
for 199091 tax years, Walker argued that the assessment of parcel 155s land
and improvement should have been $370,000 for each tax year.
Footnote: The assessment for parcel 155s land and improvement was $410,870; the assessment
for parcel 210s land and improvement was $908,940. The record does not
reveal what Walker believed the correct assessments should have been.
Footnote: The record often fails to clearly distinguish between parcels 155 and 210.
Consequently, the record is filled with considerable ambiguity. Because parties are
entitled to have their cases dealt with meaningfully, it is incumbent upon counsel
to clearly present the facts.
Whitley Products, Inc. v. State Bd. of
Tax Commrs, 704 N.E.2d 1113, 1121 n.16 (Ind. Tax Ct. 1998), review denied
(instructing taxpayers and the State Board to bear in mind that judicial review
is facilitated when there is a well-developed factual record for the Court to
The parties have not raised the issue of the Courts subject matter
jurisdiction. Nevertheless, the Court may raise the issue sua sponte.
Trails, Inc. v. State Bd. of Tax Commrs, 757 N.E.2d 1072, 1075 n.5
(Ind. Tax Ct. 2001).
Walker made the following claim in both its subsequent 133 Petitions:
Current assessment includeds [sic] amounts for features which . . . are not
present in the subject property. Changes were made on a correction of
error form which included judgmental issues [sic] and should not have been changed.
(Joint Ex. 1.)
The attorney to whom Miller referred is not the attorney representing Walker
in the instant case.
Taxes are due in May of the year following an assessment; therefore,
Walkers subsequent 133 Petition for the 1990 tax year was also untimely because
Walker did not file it until September 1994approximately five months after the three-year
time limit for requesting a refund for the 1990 tax year.
Ind. Code §§ 6-1.1-22-9(a); 6-1.1-26-1(2); Ind. Admin. Code tit. 50, rr. 4.2-3-12(g)(4); 4.2-3-14(f)