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ATTORNEY FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
ROBERT P. HAMILTON JEFFREY A. MODISETT
LORCH & NAVILLE ATTORNEY GENERAL OF INDIANA
New Albany, IN
VINCENT S. MIRKOV
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
NEW ALBANY MALL, INC., )
v. )Cause No. 39T10-9610-TA-00127
STATE BOARD OF TAX COMMISSIONERS, )
October 21, 1998
NOT FOR PUBLICATION
ON APPEAL FROM THE STATE BOARD OF TAX COMMISSIONERS
New Albany Mall, Inc. (New Albany) appeals from a final determination of the
State Board of Tax Commissioners (State Board) that resulted in no change being
made to New Albany's property tax assessment. New Albany claims that it is entitled to
additional obsolescence depreciation above the 50% granted by the Floyd County
FACTS AND PROCEDURAL HISTORY
New Albany owns a strip mall located in New Albany, Indiana. In 1992, New
Albany appealed is property tax assessment to the Floyd County Board of Review
(BOR). New Albany claimed that it should be awarded additional obsolescence above
the 50% awarded by the Floyd County assessor. New Albany based this claim on the
fact that the mall was not economically sound and that a high income tenant had
vacated the premises. The BOR determined that New Albany was not entitled to any
additional obsolescence. Thereafter, on September 29, 1992, New Albany filed a Form
131 Petition for Review of Assessment with the State Board. Again, New Albany
claimed that it was entitled to additional obsolescence depreciation.
The State Board held a hearing on the petition on July 15, 1994. Hearing Officer
Dennis Stroud subsequently made a recommendation to the State Board that no
additional obsolescence be granted to New Albany. On August 16, 1996, the State
Board issued a final determination adopting the recommendation of Mr. Stroud,
refusing to grant additional obsolescence to New Albany. On October 1, 1996, New
Albany filed an original tax appeal in this Court. A trial was held on April 16, 1998.
Additional facts will be supplied as necessary.
ANALYSIS AND OPINION
Standard of Review
This Court gives the final determinations of the State Board great deference
when it acts within the scope of its authority. Garcia v. State Bd. of Tax Comm'rs, 694
N.E.2d 794, 795-96 (Ind. Tax Ct. 1998). This Court reverses final determinations of the
State Board only when those decisions are unsupported by substantial evidence, are
arbitrary or capricious, constitute an abuse of discretion, or exceed statutory authority.
Id. at 796. Discussion
New Albany claims that it is entitled to an increase in the amount of
obsolescence depreciation applied to its buildings. Obsolescence depreciation is
defined as a functional and economic loss of value. Ind. Admin. Code tit. 50, r. 2.1-5-1
(1992) (codified in present form at id. r. 2.2-10-7(e) (1996)). There are two varieties of
obsolescence, functional and economic. New Albany claims that its property suffers
from economic obsolescence. Economic obsolescence is caused by factors external to
the property. Id. The regulations state that an [a]ccurate determination of
Obsolescence Depreciation will require the assessor to recognize the symptoms of
obsolescence and exercise sound judgment in equating his observation of the property
to the correct deduction in value from Reproduction Cost New. Id.
In the present case New Albany identified some causes of possible economic
obsolescence. New Albany pointed to the fact that one of its largest tenants had
vacated its portion of the mall. Moreover, New Albany provided financial statements to
the State Board detailing the finances of the mall, which tended to show that the mall
was not a profitable business. This evidence, claims New Albany, shows that a greater
amount of obsolescence depreciation should be applied.
The State Board did not rebut this evidence. Nor did the State Board provide a
reason for its decision to apply 50% obsolescence. Instead, the State Board merely
asserted that 50% was more than adequate. (Resp't Ex. A at 24). In light of the
evidence presented to the State Board by New Albany, the State Board should provide
some reason for the application of 50% obsolescence. However, there is no evidence
in the record to support the State Board's final determination of 50% obsolescence
other than the unsupported and unexplained word of the hearing officer. See
State Bd. of Tax Comm'rs, 694 N.E.2d 1230, 1240-41 (Ind. Tax Ct. 1998) (quoting
Bailey Seed Farms v. State Bd. of Tax Comm'rs, 542 N.E.2d 1389, 1391 (Ind. Tax Ct.
1989)). Therefore, the State Board's final determination cannot stand.
AND INSTRUCTIONS ON REMAND
Recently, this Court discussed the issue of the quantification of obsolescence.
In Clark, this Court held that the State Board must provide some factual predicate for its
decision to apply a particular amount of obsolescence. Id. at 1241. Moreover, this
Court held that it would no longer consider taxpayer complaints regarding
obsolescence unless the taxpayer identifies the causes of obsolescence and presents
probative evidence to support a quantification of obsolescence at the administrative
level. Id. These requirements serve to foster an efficient and equitable resolution to a
dispute over obsolescence. Therefore, these are the standards that must be met by
both parties on remand in this case.
For the foregoing reasons, this cause is remanded to the State Board for further
consideration consistent with this opinion and with the admonitions and instructions
given in Clark regarding the identification and quantification of obsolescence.
Converted by Andrew Scriven