ATTORNEY FOR PETITIONER
TAMATHA A. STEVENS
GOODIN, ORZESKE & STEVENS P.C.
ATTORNEYS FOR THE RESPONDENT
ATTORNEY GENERAL OF INDIANA
VINCENT S. MIRKOV
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
THOUSAND TRAILS, INC. )
COMPANY, Successor in Merger with
v. ) Cause No. 49T10-9702-TA-128
STATE BOARD OF TAX )
ON APPEAL FROM A FINAL DETERMINATION
OF THE STATE BOARD OF TAX COMMISSIONERS
November 2, 2001
Thousand Trails, Inc. (Thousand Trails) appeals the final determination of the State Board
of Tax Commissioners (State Board) that denied Thousand Trails Form 133 Petitions for
the 1992 and 1993 tax years. Thousand Trails also appeals the final
determination of the State Board on its Form 131 Petition for the 1992
tax year. The issues before the Court are:
Whether the Court has jurisdiction over Thousand Trails appeal of its 131 Petition
Whether Thousand Trails is entitled to a land reclassification, kit adjustment, and application
of a thirty-year depreciation table to its improvement for the 1992 and 1993
tax years; and
Whether Thousand Trails had an opportunity to rebut the ex parte evidence the
State Board used to assess its pool and pool apron.
FACTS AND PROCEDURAL HISTORY
For the reasons stated below, the Court DISMISSES Thousand Trails appeal of
its 131 Petition for lack of subject matter jurisdiction; AFFIRMS the State Boards
final determination of Thousand Trails 133 Petitions denying Thousand Trails request for a
land reclassification, kit adjustment, and application of a thirty-year depreciation table; and DENIES
Thousand Trails request for a hearing before the State Board on the issue
of the pool and pool apron for the 1992 and 1993 tax years.
Thousand Trails, a commercial resort that includes a lake, campgrounds, and related facilities,
is located in Vermillion County, Indiana. For the 1989 general reassessment, Thousand
Trails land was valued at $154,500 and its improvements were valued at $190,100.
(Respt Ex. 5.) On May 21, 1993, Thousand Trails filed a
Form 130 Petition (130 Petition) with the Vermillion County Auditor (Auditor) appealing its
See footnote (Respt Ex. 1 at A-1.)
On October 4, 1994, the Vermillion County Board of Review (BOR) issued a
final determination reassessing Thousand Trails land at $154,500 and its improvements at $182,100.
See Respt Ex. 5.) The date indicated on the final determination
was, however, for the 1994 tax year. Apparently thinking that the BOR
had merely issued a final determination on its 130 Petition for 1992, Thousand
Trails filed a 131 Petition with the State Board on October 13, 1994,
appealing its assessment for the 1992 tax year.
See footnote (Respt Ex. 1 at
A-1.) The cause number assigned to the 131 Petition was 83-007-92-0CI-00001.
(Petr Ex. G.)
On December 4, 1995, Thousand Trails filed two Form 133 Petitions (133 Petitions)
with the BOR for the correction of errors in Thousand Trails 1992 and
1993 assessments, which the BOR denied. On January 12, 1996, Thousand Trails
filed its 133 Petitions with the State Board. The cause numbers assigned
to these 133 Petitions were 83-007-92-3-4-00001 and 83-007-93-3-4-00002. (Respt Ex. 1 at
A-2 & A-3.)
On May 28, 1996, the State Board held a hearing on Thousand Trails
131 Petition. Thousand Trails was represented by its tax consultant, M. Drew
Miller (Miller), of Landmark Appraisals, Inc. (See Trial Tr. at 4143.)
At the hearing, Mr. Miller submitted an analysis contending that Thousand Trails 1992
assessment should be adjusted.
See footnote (Petr Ex. G.)
On January 17, 1997, the State Board issued a final determination of Thousand
Trails 133 Petitions for the 1992 and 1993 tax years, assessing the land
at $136,030 and the improvements at $185,530. (Respt Ex. 1 at C-1
& C-2.) As part of its final determination, the State Board found
that Thousand Trails had a 684 square-foot pool and pool apron that the
local assessing officials had omitted from the assessment rolls. Using the residential pool
Ind. Admin. Code tit. 50, r. 2.1-3-5 (Sched. G.1), the State
Board determined the respective true tax values
See footnote (TTV) of the pool and its
pool apron to be $7,000 and $3,300. (Respt Ex. 1 at C-1
see also Trial Tr. at 57.) The State Board did
not, however, grant Thousand Trails a hearing on the evidence it used to
assess the pool and pool apron, nor did Thousand Trails ask the State
Board for a hearing after it received its final determination. The State
Board also reassessed Thousand Trails land and improvements for the 1994 tax year.
(Respt Ex. 1 at B & C-3.)
On February 10, 1997, Thousand Trails commenced an original tax appeal with this
Court, appealing what it apparently believed was the final determination of its 131
Petition for the 1992 tax year. It also stated that it was
appealing the final determination of its 133 Petitions for the 1992 and 1993
tax years. Thousand Trails, however, did not commence an original tax appeal
with this Court appealing the State Boards final determination of its assessment for
the 1994 tax year. A trial was held on May 22, 1998.
The parties filed post-trial briefs, and the Court heard oral arguments on
October 14, 1998. Additional facts will be provided when necessary.
ANALYSIS AND OPINION
Standard of Review
This Court gives great deference to the final determinations by the State Board
when it acts within the scope of its authority. Wetzel Enters., Inc.
v. State Bd. of Tax Commrs, 694 N.E.2d 1259, 1261 (Ind. Tax Ct.
1998). This Court will reverse a final determination by the State Board
only when its findings are unsupported by substantial evidence, arbitrary, capricious, constitute an
abuse of discretion, or exceed statutory authority. Id.
Moreover, a taxpayer who appeals to this Court from a State Board final
determination has the burden of showing that the final determination was invalid.
Clark v. State Bd. of Tax Commrs, 694 N.E.2d 1230, 1233 (Ind. Tax
Ct. 1998). The taxpayer must present a prima facie case (a case
supported by probative evidence, i.e., evidence that is sufficient to establish a given
fact and which if not contradicted will remain sufficient). Damon Corp. v.
State Bd. of Tax Commrs, 738 N.E.2d 1102, 1106 (Ind. Tax Ct. 2000).
Once the taxpayer presents a prima facie case, the burden shifts to
the State Board to rebut the taxpayers evidence and support its decision with
substantial evidence. Clark, 694 N.E.2d at 1233.
I. Subject Matter Jurisdiction
The legislature has explicitly 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. I
nd.Code § 33-3-5-11(a);
see also State Bd. of Tax Commrs v. Mixmill Mfg. Co., 702 N.E.2d
701, 704 (Ind. 1998); Alcoils, Inc. v. State Bd. of Tax Commrs, 727
N.E.2d 795, 799 (Ind. Tax Ct. 2000). One of these statutory requirements
is that a taxpayer timely initiate the 130/131 appeals process. See Ind.Code
§ 6-1.1-15-1(a) (1993); see also Kent Co. v. State Bd. of Tax Commrs,
685 N.E.2d 1156, 1158 (Ind. Tax Ct. 1997), review denied. A taxpayer
who fails to timely initiate the 130/131 appeals process cannot later seek relief
in this Court. Id.
As this Court explained in Kent:
Prior to January 1, 1994, there were three avenues for taxpayers to challenge
their property's assessed value. Within thirty days of an assessment or increase
of assessment, the taxpayer could initiate the Form 130/131 process alleging both objective
and subjective errors in the assessment; by March 31st of years in
which there was no state-wide general assessment, the taxpayer could file a Form
134 Petition for Reassessment alleging objective or subjective errors in the assessment;
lastly, a taxpayer could file a Form 133 challenging only objective errors in
Kent, 685 N.E.2d at 1158 (footnote deleted); see also Reams v. State Bd.
of Tax Commrs, 620 N.E.2d 758, 760 (Ind. Tax Ct. 1993). The
parties do not dispute that Thousand Trails failed to timely file its 130
Petition. (Oral Arguments Tr. at 45; Respt Post-Trial Br. at 5.)
Specifically, for the 1992 tax year, the 130/131 appeals process was not even
available to Thousand Trailsthat avenue of appeals having passed in 1989. See Kent,
685 N.E.2d at 1158. Moreover, even if the Court were to construe
Thousand Trails 131 Petition as a 134 Petition appealing its 1992 assessment, the
petition was filed almost fourteen months too late. See id; Reams, 620
N.E.2d at 760. Consequently, the Court lacks subject matter jurisdiction. See
id. Accordingly, the Court DISMISSES Thousand Trails appeal of its 131 Petition
for lack of subject matter jurisdiction.
II. The 133 Petitions
Thousand Trails claims that it is entitled to relief on its 1992 and
1993 assessments via its 133 Petitions. The Court disagrees.
A taxpayer may file a 133 Petition to correct certain errors that it
discovers in its tax duplicate. Hatcher v. State Bd. of Tax Commrs,
561 N.E.2d 852, 857 (Ind. Tax Ct. 1990); Ind.Code § 6-1.1-15-12(a). The
legislature intended, however, that the errors correctable by a 133 Petition are those
that can be corrected without resort to subjective judgment. Hatcher, 561 N.E.2d
at 857. Thus, a taxpayer who files a 133 Petition must show
with probative evidence that any alleged error is an objective error, not a
subjective error. See id. at 855.
Thousand Trails argues that the evidence it submitted for its 131 Petition is
sufficient to prove that it was entitled to the reclassification of its land,
a kit building adjustment for its maintenance building, and the application of a
thirty-year depreciation table to its office building on its 133 Petitions.
See footnote (Petr
Post-Trial Br. at 23.) Thousand Trails also argues that because the State
Board corrected these alleged errors when it reassessed Thousand Trails property for 1994,
the State Board conclusively knew of the errors. (Petr Post-Trial Br. at
3.) Therefore, Thousand Trails reasons that the evidence it presented at the
hearing for its 131 Petition should relate to its 133 Petitions for the
1992 and 1993 tax years.
The question, however, is not what the State Board conclusively knew, but what
errors Thousand Trails alleged and showed existed in its 133 Petitions.
Hatcher, 561 N.E.2d at 858. Accordingly, Thousand Trails argument that the State
Board conclusively knew of objective errors in its assessment is irrelevant unless Thousand
Trails first establishes that it alleged and showed in its 133 Petitions that
objective errors existed. See id.
Furthermore, just as each tax year stands alone, Glass Wholesalers, Inc. v. State
Bd. of Tax Commrs, 568 N.E.2d 1116, 1124 (Ind. Tax Ct. 1991), so
too does each property tax appeals process. Hatcher, 561 N.E.2d at 856.
Hence, unless otherwise designated, evidence submitted for one petition or tax year
will not be used as evidence for a different petition or tax year.
See Glass Wholesalers, 568 N.E.2d at 1124 (citing Foursquare Tabernacle Church of
God in Christ v. State Bd. of Tax Commrs, 550 N.E.2d 850, 853
(Ind. Tax. Ct. 1990)).
The Court has already held that it does not have jurisdiction over Thousand
Trails 131 Petition, which includes the evidence Thousand Trails submitted for its 131
Petition. Furthermore, the record does not show that Thousand Trails designated to
the State Board that the evidence submitted with its 131 Petition should be
used for its 133 Petitions.
Thousand Trails has presented no evidence to prove the allegation in its 133
Petitions. Thus, the Court DENIES Thousand Trails relief on the issues of
land classification, the kit adjustment, and the appropriate depreciation table.
III. Swimming Pool
Thousand Trails argues that it did not have an opportunity to rebut the
State Boards evidence with regard to the pool and pool apron and that
it therefore should be allowed another hearing before the State Board. (
Petr Post-Trial Br. at 8; see also Oral Arguments Tr. at 12.)
The Court does not agree.
When the State Board receives a 133 Petition, it may correct any objective
errors in the assessmenteven those that were not raised by the taxpayer.
Ind. Admin. Code tit. 50, r. 4.2-3-12(a). See also Hatcher, 561 N.E.2d
at 857. If the State Board relies on ex parte evidence in
resolving an issue not raised by the taxpayer,
See footnote however, the taxpayer is entitled
to an opportunity to review and rebut that evidence, either before the State
Board or this Court.
Canal Realty-Indy Castor v. State Bd. of Tax
Commrs, 744 N.E.2d 597, 605 & 605 n.12 (Ind. Tax Ct. 2001).
Although the State Board did not grant Thousand Trails a hearing on the
issue of the pool and pool apron, Thousand Trails had sixteen months from
the date of the State Boards final determination to gather any evidence relevant
to the assessment of its pool and pool apron and present it to
this Court during trial. Thousand Trails did not, however, submit any evidence
about its pool and pool apron at trial, nor did it show that
it had been barred from gathering such evidence. Cf. Canal Reality,
744 N.E.2d at 605 (finding it possible that a tax representative is deprived
of the opportunity to rebut ex parte evidence when he lacks access to
his clients property).
Thousand Trails, therefore, had an opportunity before this Court to rebut the State
Boards evidence. It would be inappropriate to provide a petitioner with the
opportunity to rebut [an assessment] and present evidence in court, only then to
remand the case [to the State Board]. Castello v. State Bd. of
Tax Commrs, 638 N.E.2d 1362, 1365 (Ind. Tax Ct. 1994). Consequently, the
Court DENIES Thousand Trails request for a hearing before the State Board on
the issue of the pool and pool apron.
For the reasons discussed, the Court DISMISSES Thousand Trails 131 Petition for lack
of subject matter jurisdiction; AFFIRMS the State Boards final determination on the
133 Petitions denying Thousand Trails request for a land reclassification, kit adjustment, and
application of a thirty-year depreciation table; and DENIES Thousand Trails request for a
hearing before the State Board on the issue of the pool and pool
apron for the 1992 and 1993 tax years.
The record, however, does not indicate that Thousand Trails had received any
notice of an assessment action by an assessment official for 1992. Thus,
at the time it filed its 130 Petition, the only year that Thousand
Trails had received notice of an assessment was 1989. (Trial Tr. at
Footnote: Thousand Trails did not appeal the BORs final determination for the 1994
Footnote: Thousand Trails stapled a copy of the hearing notice to its analysis.
The notice indicates that the hearing was being held for cause number
i.e., the cause number assigned to Thousand Trails 131 Petition. (Petr
Under the Indiana Code, true tax value does not mean fair market
value. True tax value is the value determined under the rules of
the state board of tax commissioners.
Ind.Code § 6-1.1-31-6(c).
The parties have not raised the issue of the Courts subject matter
jurisdiction. Nevertheless, the Court may raise the issue sua sponte.
Matonovich v. State Bd. of Tax Commrs, 705 N.E.2d 1093, 1095 (Ind. Tax
Ct. 1999), review denied.
On its 133 Petitions, however, Thousand Trails challenged its land classification only.
Footnote: The evidence Thousand Trails submitted to the State Board for its 131
Petition had attached to it the notice of a hearing for cause number
83-007-92-0CI-00001 only, (Petr Ex. G), which was the cause number assigned to Thousand
Trails 131 Petition. When asked whether he even pointed out to the
State Board that there were objective errors in Thousand Trails 131 Petition that
could be corrected via a 133 Petition, Mr. Miller evaded the question by
asserting that the errors in the 131 Petition could be corrected via a
133 Petition. (Trial Tr. at 44.) The question is not whether
could be corrected via a 133 Petition, but whether Mr. Miller
actually submitted probative evidence to the State Board to support his assertions.
See Hatcher, 561 N.E.2d at 858. The record shows that he did
In this case, the
ex parte evidence consisted of the hearing officers
findings regarding the pool and pool apron and her recommendations to the State
The Court does not believe that a remand would be in Thousand
Trails best interests. Thousand Trails suggests that the State Board erred in
using the residential, rather than the commercial pool schedule. (Petr Post-Trial Br.
at 8.) The smaller a pool is, the more TTV it carries
per square foot. For example, an 800 square-foot residential reinforced concrete block
pool carries a TTV of $16.55 per square foot, whereas a pool of
300 square feet carries a TTV of $26.20 per square foot.
Admin. Code tit. 50, r. 2.1-3-5 (Sched. G.1). Likewise, the commercial pool
schedule shows, for example, that the typical 2,500 square-foot motel-type pool carries a
TTV of $24.25 per square foot, but a 1,000 square-foot pool carries a
TTV of $29.05 per square foot. Ind. Admin. Code tit. 50, r.
2.1-4-5 (Sched. G). Thousand Trails pool is 664 square feet, and its
TTV was determined to be $7,000, which is approximately $10.54 per square foot.
Hence, in what looks like the Roy Riegels of legal arguments, Thousand
Trails contention means that the TTV of its pool, which is less than
$11 per square foot under the residential pool schedule, should be adjusted upwards
to more than $29 per square foot under the commercial pool schedule.