ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
DAVID L. PIPPEN JEFFREY A. MODISETT
CURTIS DICKINSON ATTORNEY GENERAL OF INDIANA
DICKINSON & ABEL
Indianapolis, IN MARILYN S. MEIGHEN
DEPUTY ATTORNEY GENERAL
20TH CENTURY FIBERGLASS, ) ) Petitioner, ) ) v. ) Case No. 49T10-9605-TA-00041 ) Case No. 49T10-9605-TA-00045 INDIANA STATE BOARD OF ) TAX COMMISSIONERS, ) ) Respondent. )______________________________________________________________________________
I. Whether 20th Century's property tax consultant had the authority to appeal to
the State Board.
II. Whether the alleged errors were properly appealed by a Form 133 Petition to
DISCUSSION AND ANALYSIS
1284 (Ind. Tax Ct. 1990) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168-69 (U.S. 1962)).
Furthermore, a challenge to standing is an affirmative defense. As the State Board is the party seeking its benefit, they bear the burden of proof. Ind. Trial Rule 8(C); Freedom Express, Inc. v. Merchandise Warehouse Company, Inc., 647 N.E.2d 648, 651 (Ind. Ct. App. 1995). Additionally, the State Board is required by statute to notify a taxpayer of a defect in its petition and grant the Petitioner thirty days to cure any defect. Ind. Code Ann. § 6-1.1-15-4(6) (West 1989). The State Board failed to present any testimony or evidence sufficient to show that it complied with the trial rules or statute. In contrast, 20th Century provided this Court with testimony that it did not receive notice of any defect with its petitions prior to the week of trial. Tr. at 9.
At trial, the State Board presented unsigned letters requesting powers of attorney for the Forms 133. Pet. Ex. B and C. The State Board, however, presented no evidence that those letters were ever mailed or that their contents were in any way communicated to the taxpayer or its representative. See F & F Construction Co., Inc. v. Royal Globe Insurance Co., 423 N.E.2d 654, 655-56 (Ind. Ct. App. 1981) (requiring testimony from one with direct and actual knowledge to serve as proof of mailing). The State Board failed to present testimony from the author of the letter and the one witness presented by the State Board could not personally testify to the office procedure at the time the letters would have been mailed. Tr. at 30-31.
Based on the State Board's failure to cite it as a reason in their findings, and based on the testimony given at trial, the Court finds that the State Board waived the issue of whether
Landmark had the authority to represent 20th Century. However, it should be noted that the
Court agrees with the State Board that powers of attorney are required to practice before them.
The regulations are quite explicit in requiring the execution of a power of attorney "before any representative of [the State] Board may communicate with an individual other than the taxpayer." Ind. Admin. Code tit. 50 § 4.1-1-20. 20th Century argues that since this requirement is found in the portion of the Administrative Code that deals with the assessment of tangible personal property (Article 4.1), it does not apply to the assessment of real property. In support of their contention, they cite this Court's opinion in Western Select Properties v. State Board of Tax Comm'rs, 639 N.E.2d 1068 (Ind. Tax Ct. 1994).
In Western Select, this Court found that the State Board acted in an arbitrary and capricious manner when it used the same standard of proof for real property assessment that it uses for personal property obsolescence. 639 N.E.2d at 1073. In that case, the State Board was applying regulations written specifically for one type of property to another type of property that had its own specific regulations. In the instant case, the regulations in question clearly relate to the administration and procedure of the State Board. The fact that they are located under the rubric of tangible personal property is merely due to the inconcinnity of the regulations' drafting. A plain reading of Rule 1, located in Article 4.1, indicates that those provisions relate to all areas of taxation and not only to personal property. It is simply a bewildering placement of a procedural requirement_lost among a byzantine set of regulations.
As the Supreme Court has directed in regards to an administrative agency's own regulations, "the interpretation of the administrative agency is given great weight unless the agency's interpretation would be inconsistent with the regulation itself." State Board of Tax
Comm'rs v. Two Market Square, 679 N.E.2d 882, 886 (Ind. 1997). Nothing in the State Board's
interpretation of Ind. Admin. Code tit. 50 § 4.1-1-20 is inconsistent with the regulation itself. A
power of attorney is required for all representatives practicing before the State Board.
does not prevent this Court from doing so once they are before it. The State Board's insistence
that this Court not do so only exacerbates their error.
Secondly, the Court has already reviewed the issue of what type of errors are appealable by a Form 133 Petition to Correct Errors. See Bock v. State Board of Tax Comm'rs, No.49T10- 9605-TA-00040, slip op. (Ind. Tax Ct. July 18, 1997), Franchise Realty Corp. v. State Board of Tax Comm'rs, No. 49T10-9607-TA-00081, slip op. (Ind. Tax Ct. June 27, 1997), Bender v. State Bd. of Tax Comm'rs, 676 N.E.2d 1113 (Ind. Tax Ct. 1997) , Williams Indus. v. State Board of Tax Comm'rs, 648 N.E.2d 713 (Ind. Tax Ct. 1995), Hatcher v. State Bd. of Tax Comm'rs, 561 N.E.2d 852 (Ind. Tax Ct. 1990). In those cases, the Court held that a Form 133 Petition to Correct Errors provides an avenue for correcting objective mistakes in an assessment, not errors in subjective judgment. "The only errors subject to correction by Form 133 are those which can be corrected without resort to subjective judgment." Id. In the present case, two of the issues are exactly the same as two issues in Bock. Both cases involve the calculation of the PAR and Base Rates, both are for the years 1989 and 1990, both are in Elkhart County, both use the same property tax consultant (Landmark), and both were argued by the same attorneys before this Court. As the Court is beginning to review these appeals with a mixed sense of déjà vu and ennui, both parties are instructed to consult Bock as to the propriety of appealing PAR and Base Rate calculations using Form 133. Regarding the application of Life Expectancy Tables under Ind. Admin. Code tit. 50 § 2.1-5-1 (1988), the parties are again referred to the cases cited above. The application of the correct Life Expectancy Table is an objective computation made after the subjective determination of the structure type and condition. Those objective issues may be appealed by a Form 133.
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