Hebron-Vision, LLC v. Porter County Assessor ( 2019 )

ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
MICHAEL N. RED CURTIS T. HILL, JR.
MORSE & BICKEL, P.C. ATTORNEY GENERAL OF INDIANA
Indianapolis, IN WINSTON LIN
ZACHARY D. PRICE
PAUL M. JONES, JR. DEPUTY ATTORNEYS GENERAL
PAUL JONES LAW, LLC Indianapolis, IN
Greenwood, IN
JOHN P. BUSHEMI
ALFREDO ESTRADA
BURKE COSTANZA & CARBERRY, LLP
Merrillville, IN
FILED
IN THE Oct 28 2019, 11:40 am
CLERK
INDIANA TAX COURT Indiana Supreme Court
Court of Appeals
and Tax Court
HEBRON-VISION, LLC, )
)
Petitioner, )
)
v. ) Cause No. 18T-TA-00019
)
PORTER COUNTY ASSESSOR, )
)
Respondent. )
ON APPEAL FROM A FINAL DETERMINATION OF
THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
October 28, 2019
FISHER, Senior Judge
Hebron-Vision, LLC appeals the Indiana Board of Tax Review’s final determination
that Hebron-Vision failed to establish that it qualified for a charitable purposes exemption
for the 2012 through 2015 tax years. Upon review, the Court reverses the Indiana Board’s
final determination.
FACTS AND PROCEDURAL HISTORY1
On April 19, 2006, Hebron-Vision, a single-member limited liability company, was
formed pursuant to the Indiana Business Flexibility Act. (See Cert. Admin. R. at 711-15,
2293-94, 2348.) See also, e.g., IND. CODE § 23-18-2-4(a) (2019) (providing that a person
“may form a limited liability company by causing articles of organization to be executed
and filed for record with the office of the secretary of state”). Its Articles of Organization
require Vision Communities, Inc. (“Vision Communities”),2 its sole member, to manage
the company in accordance with its stated purposes:
[T]o acquire, own and operate the Misty Glen Apartments in Porter
County, Indiana and to perform the following additional activities in
connection with the properties:
(a) To expand opportunities available to disadvantaged
residents to obtain adequate affordable housing accommodations by
constructing, rehabilitating, operating and providing decent, safe and
sanitary housing for said residents who otherwise would not be able
to find or afford a suitable place to live;
(b) To help relieve the poor, distresse[d], underprivileged and
indigent by enabling them to secure the basic human needs of
decent shelter and to thus lessen the burdens of government and
promote the social welfare;
(c) To provide such housing through rehabilitation of existing
substandard buildings and construction of new facilities in the place
of blighted structures or blighted adjacent vacant sites for the
purpose of combating the deterioration of the community and
contributing to its physical improvement; and
1
Portions of the administrative record in this case have been designated as confidential;
consequently, this opinion will only provide the information necessary for the reader to understand
its disposition of the issues presented. See generally Ind. Administrative Rule 9.
2
Vision Communities is a domestic nonprofit public benefit corporation and a tax-exempt public
charity under sections 501(c)(3) and 509(a)(2) of the Internal Revenue Code. (See Cert. Admin.
R. at 689-90, 701-06.) Its Articles of Incorporation provide its purposes are “[t]o develop,
construct, own and lease safe, decent, sanitary housing for low- and moderate-income individuals
and families; [and t]o make grants to public charities that are exempt from federal income tax[.]”
(Cert. Admin. R. at 690.)
2
(d) In furtherance of the aforesaid purposes to conduct any
and all lawful business and activities for which limited liability
companies may be organized under the [Indiana Business Flexibility]
Act, provided such business or activity is not inconsistent with the
charitable purposes or status of [Hebron-Vision’s] sole member,
[Vision Communities].”
(Cert. Admin. R. at 711-12, 717.)
To that end, at some point in 2007, Hebron-Vision purchased Misty Glen
Apartments (“Misty Glen”), a Section 423 80-unit apartment complex situated on 6.45
acres of land in Porter County, Boone Township, Hebron, Indiana.4 (See Cert. Admin. R.
at 423, 426, 2294, 2651-52.) Although Hebron-Vision did not receive any tax credits when
it acquired the property, it continued to operate Misty Glen as a Section 42 apartment
complex. (See Cert. Admin. R. at 2307-09, 2327, 2341, 2451-53, 2531-34.) As such,
approximately 95% of the residents’ annual incomes were at or below 60% of the area
median income (adjusted for family size) during the years at issue.5 (See Cert. Admin.
R. at 2531-34, 2997-3001.)
In 2008, Hebron-Vision applied for, and eventually received, a charitable purposes
3
USC § 42 generally provides that the U.S. Department of Housing and Urban Development
(“HUD”), via the Indiana Housing and Community Development Authority (“IHCDA”), may award
dollar for dollar tax credits to developers to finance the construction of qualifying housing projects.
(See Cert. Admin. R. at 495, 1085-95, 2302-05, 2446-48, 2467-68, 2473-76.) In exchange, the
developer agrees to operate its property subject to income and rent restrictions that benefit low-
income individuals and families. (See Cert. Admin. R. at 495, 1092-94, 2302-05, 2446-48.)
4
Specifically, Misty Glen has 16 one-bedroom units, 40 two-bedroom units, and 24 three-
bedroom units. (Cert. Admin. R. at 428.) In addition, the property’s amenities include a business
center, newly renovated clubhouse, 24-hour fitness center, playground, and a barbeque area with
picnic tables and grills. (Cert. Admin. R. at 2960-61.)
5
HUD determines and reports area median incomes for metropolitan statistical areas and
nonmetropolitan counties. (See, e.g., Cert. Admin. R. at 1031-34, 2506-11.) For example,
individuals and families living at 60% of the 2012 area median income for Porter County were
established at $27,780 for a single person, $31,740 for a family of two, and $35,700 for a family
of three. (Cert. Admin. R. at 502.)
3
exemption for Misty Glen for that year. (See Cert. Admin. R. at 34-58, 2311-12.) In 2010
and 2012, Hebron-Vision submitted a statement to the Porter County Assessor stating
that its property should remain exempt because its use of the property had not changed
since 2008. (Cert. Admin. R. at 27-28, 32-33.)
On May 30, 2013, the Porter County Property Tax Assessment Board of Appeals
(the “PTABOA”) determined that the property was ineligible for the exemption in 2012.
(Cert. Admin. R. at 6-26.) Consequently, Hebron-Vision filed a petition for review with the
Indiana Board on June 21, 2013. (Cert. Admin. R. at 1-73.) Thereafter, Hebron-Vision
filed applications for exemption for the 2014 and 2015 tax years,6 which the PTABOA
denied, and Hebron-Vision sought review with the Indiana Board for those years as well.
(Cert. Admin. R. at 74-253.) In January 2017, the Indiana Board conducted a
consolidated two-day hearing on all of Hebron-Vision’s appeals.
During the hearing, Hebron-Vision presented to the Indiana Board nearly forty
separate exhibits and the testimony of four witnesses to demonstrate that it owned,
occupied, and used its property solely for charitable purposes during the years at issue.
(See, e.g., Cert. Admin. R. at v-vi.) More specifically, Hebron-Vision claimed that it
qualified for a charitable purposes exemption because all the evidence showed that
1) the government had assumed the burden of providing affordable
housing to those who were in need;
2) Hebron-Vision’s operation of Misty Glen, via Vision Communities,
lessened the government’s burden because it provided safe,
decent, and sanitary housing at below-market rental rates to people
who were in need;
3) the motives of Hebron-Vision and Vision Communities were
6
The Indiana Board explained that Hebron-Vision did not need to file an application for exemption
for 2013 because Indiana Code § 6-1.1-11-3.5 would extend the 2012 exemption to 2013. (See
Cert. Admin. R. at 2061 n.2.)
4
altruistic because neither received government funding to operate
Misty Glen as a Section 42 apartment complex nor improperly
profited from the operation of the property; and
4) Hebron-Vision used Misty Glen to satisfy the needs and wants of
its residents by promoting a sense of brotherhood for them through
its provision of several services7 that typically were not offered by
for-profit/market rate apartment complexes.
(See, e.g., Cert. Admin. R. at 2257-61, 2289, 2292-2302, 2306-08, 2342-43, 2364-65,
2371-73, 2384-87, 2393, 2404-05, 2440-43, 2459, 2509-34, 2794-2828, 2882-85, 2984-
07, 3022-23, 3174-77.) (See also, e.g., Cert. Admin. R. at 419-60 (Rent Analysis), 707-
10 (Conflict of Interest and Excess Benefit Policies), 1018-84 (HUD’s rental information
and median income limit documentation for Porter County).)
In response, the Assessor objected to Hebron-Vision’s Rent Analysis and the
testimony of its preparer, claiming that the evidence was inadmissible because Hebron-
Vision failed to comply with the disclosure requirements of 52 IAC 2-7-1.8 (See Cert.
Admin. R. at 2770-74.) The Assessor also presented two exhibits9 and his own testimony
to demonstrate that the totality of the evidence showed
1) Hebron-Vision did not relieve any governmental burden because it
received indirect subsidies (e.g., rent or utility assistance) from
government and non-governmental sources;
7
For example, Misty Glen residents had on-site access to free tax preparation services, resumé
writing assistance, and blood pressure screenings. (See Cert. Admin. R. at 512-13, 2984-92.)
Hebron-Vision also maintained a list of, and provided referrals to, social services providers for
rent, food, or utility assistance. (See, e.g., Cert. Admin. R. at 516-17, 3053-68.)
8
52 IAC 2-7-1 requires litigants to exchange copies of their documentary evidence, witness lists,
and exhibit lists within certain prescribed periods. See 52 IND. ADMIN. CODE 2-7-1(b) (2017). The
rule further provides that a litigant’s failure to comply with the disclosure requirements “may serve
as grounds to exclude the evidence or testimony at issue.” 52 I.A.C. 2-7-1(f).
9
The Assessor actually presented a total of six exhibits, but only two of his exhibits addressed
Hebron-Vision’s eligibility for an exemption. (See Cert. Admin. R. at vi, 2071 ¶¶ 31-34, 2149-72,
2578-93, 3244-61 (indicating that one exhibit was withdrawn, two exhibits were offered solely to
support the Assessor’s evidentiary objections, and one exhibit was not admitted into evidence).)
5
2) Hebron-Vision used its property for a noncharitable profit motive by
paying excessive management fees to its offsite property manager,
Flaherty & Collins Properties,10 a for-profit company whose owners
helped form Hebron-Vision and Vision Communities;
3) Misty Glen’s rental rates were not below-market;
4) Hebron-Vision’s policies mirrored those of a typical landlord because
it screened prospective tenants based on their ability to pay rent on
time, excluding those with poor credit histories and unsatisfactory
landlord references; required security deposits; charged late fees;
evicted tenants for nonpayment of rent; and did not have a rent
forgiveness program;
5) Misty Glen’s tenants were not truly in need of charity because the
evidence did not show their income levels were any different than
those of other area renters; and
6) Hebron-Vision’s provision of other services, while noble, actually
reflected the charitable acts of those agencies only and was merely
incidental to its noncharitable purpose of providing affordable
housing to moderate- to low-income individuals and families.
(See, e.g., Cert. Admin. R. at 2272-73, 2344-47, 2615-2633, 2839-73, 3053-90, 3105-18,
3203-42, 3262-69, 3278.) (See also, e.g., Cert. Admin. R. at 1992 (the Assessor’s Market
Study), 2026-38 and 2049-55 (the Assessor’s post-hearing submissions).)
On May 23, 2018, the Indiana Board issued a final determination, concluding that
Hebron-Vision failed to prove that its property was predominately owned, occupied, and
used for charitable purposes during the years at issue. (See Cert. Admin. R. at 2089-90
¶¶ 93-96.) Specifically, after overruling the Assessor’s objection, the Indiana Board
determined that the evidence regarding the a) management fees, b) rental rates, c)
residents’ income levels and screening process, and d) provision of additional services
10
Flaherty & Collins has been in the business of developing, building, and managing multi-family
properties since 1993. (Cert. Admin. R. at 2269-70.) It has developed approximately 56
apartment complexes and manages about 15,000 individual apartment units in eight states. (Cert.
Admin. R. at 2270-71.)
6
failed to show that the property qualified for a charitable purposes exemption. (See Cert.
Admin. R. at 2071 ¶ 30, 2086-89 ¶¶ 84-94.)
On July 6, 2018, Hebron-Vision initiated this original tax appeal. The Court heard
oral argument on August 9, 2019. Additional facts will be supplied as necessary.
STANDARD OF REVIEW
The party seeking to overturn an Indiana Board final determination bears the
burden of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane
Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Accordingly, Hebron-Vision must
demonstrate to the Court that the Indiana Board’s final determination is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law; contrary
to constitutional right, power, privilege, or immunity; in excess of or short of statutory
jurisdiction, authority, or limitations; without observance of the procedure required by law;
or unsupported by substantial or reliable evidence. See IND. CODE § 33-26-6-6(e)(1)-(5)
(2019).
LAW
The charitable purposes exemption, set forth in Indiana Code § 6-1.1-10-16,
provides that “[a]ll or part of a building is exempt from property taxation if it is owned,
occupied, and used . . . for . . . charitable purposes.” IND. CODE § 6-1.1-10-16(a) (2012)
(amended 2016). The exemption also extends to the land on which an exempt building
is situated and the personal property that is contained therein. See I.C. § 6-1.1-10-16(c),
(e). Accordingly, when a taxpayer seeks a charitable purposes exemption, it must
demonstrate that it owns, occupies, and predominately uses its property for charitable
purposes. See 6787 Steelworkers Hall, Inc. v. Scott, 933 N.E.2d 591, 595 (Ind. Tax Ct.
7
2010); IND. CODE § 6-1.1-10-36.3(a) (2012) (defining “predominate use”).
For purposes of the exemption, the term “charitable purpose” is to be defined and
understood in its broadest, constitutional sense. Knox Cty. Prop. Tax Assessment Bd. of
Appeals v. Grandview Care, Inc., 826 N.E.2d 177, 182 (Ind. Tax Ct. 2005). “A charitable
purpose is established when a taxpayer provides probative evidence to the Indiana Board
showing 1) ‘relief of human want . . . manifested by obviously charitable acts different
from the everyday purposes and activities of man in general[]’ and 2) that a benefit
sufficient to justify the loss of tax revenue inures to the public through these acts.” Starke
Cty. Assessor v. Porter-Starke Servs., Inc., 88 N.E.3d 814, 817 (Ind. Tax Ct. 2017)
(citations omitted).
ANALYSIS
On appeal, Hebron-Vision claims that the Indiana Board’s final determination must
be reversed for three reasons. First, it claims that the Indiana Board failed to consider its
main legal argument that the federal and state governments had assumed the burden of
providing affordable housing to certain individuals. (See Pet’r Br. at 45-46; Oral Arg. Tr.
at 4-5.) Second, Hebron-Vision claims that the Indiana Board’s findings regarding the a)
management fees, b) rental rates, c) residents’ income levels and screening process, and
d) additional services are not supported by substantial evidence. (See Pet’r Br. at 22-
45.) Finally, Hebron-Vision maintains that the Indiana Board erred in concluding that it
did not establish it qualified for a charitable purposes exemption during the years at issue
because the totality of the evidence established that its ownership, occupancy, and use
of Misty Glen lessened a governmental burden. (See, e.g., Pet’r Br. at 45-48; Oral Arg.
Tr. at 5-10.)
8
I. The Government’s Burden
During the Indiana Board hearing, Hebron-Vision argued, in both its opening and
closing statements, that both the federal government and the State of Indiana had
assumed the burden of providing affordable housing to certain individuals and families.
(See Cert. Admin. R. at 2257-61 (citing IND. CODE § 5-20-1-1 (2012)), 3281-88.) (See
also Cert. Admin. R. at 2014-21 (Hebron-Vision’s post-hearing submissions (citing, e.g.,
IND. CODE § 5-20-4-5 (2012)).) The statutory provisions upon which Hebron-Vision relied
declare
that there exists in the state of Indiana a need for safe and sanitary
residential housing within the financial means of low and moderate
income persons and families, a need which unmet is a threat to the
health, safety, morals and welfare of Indiana residents and which will
require an excessive expenditure of public funds for the social
problems thus created;
*****
[and] that the provision of decent, safe and sanitary housing for
persons and families of low and moderate income who would
otherwise be unable to obtain adequate housing at costs they could
afford is a valid public purpose for which public money may be
spent[.]
I.C. § 5-20-1-1(1), (3). The Indiana Supreme Court has explained that the purpose of
these provisions, to provide suitable housing for Indiana’s low and middle income
residents, is public in nature and a valid exercise of the legislative police power because
the benefits received by private individuals are incidental to the execution of a legitimate
public purpose. Steup v. Indiana Hous. Fin. Auth., 402 N.E.2d 1215, 1220-22 (Ind. 1980).
The Supreme Court observed:
“‘It requires little evidence and less imagination to realize the effect
upon communities and the state generally when housing is
inadequate and substandard. The lack of adequate housing
9
underlies many of the problems suffered by a state. . . . All citizens
are then called upon to bear the cost of combating the evils which
are inevitable in the absence of good, adequate, clean, and
financially possible housing. Nothing could be more of a public
purpose.’”
Id. at 1221 (citation omitted).
To effectuate the purposes of these statutes, the General Assembly created the
Indiana Housing and Community Development Authority (“IHCDA”) (f/k/a/ the Indiana
Housing Finance Authority), “‘which is an instrumentality or agency of the state although
it is not the state in its sovereign corporate capacity.’” See id. at 1218 (citation omitted).
See also IND. CODE § 5-20-1-3(a) (2012); P.L. 235-2005, § 217 (eff. May 15, 2005). The
IHCDA’s mission is “[t]o provide housing opportunities, promote self-sufficiency, and
strengthen communities” by, for example, “[c]reat[ing] and preserv[ing] housing for
Indiana’s most vulnerable population[ and e]nhanc[ing] self-sufficiency initiatives in
existing programs.” (Cert. Admin. R. at 988.) To that end, the IHCDA allocates state and
federal funds to private organizations to facilitate the development of low-income housing
for certain individuals and families. See, e.g., IND. CODE §§ 5-20-1-4, -4-1 et seq. (2012);
I.C. § 5-20-4-5 (defining “lower income families” as “families whose income does not
exceed eighty percent (80%) of the median income for the area”). (See also Cert. Admin.
R. at 495, 1085-95, 2302-05, 2446-48, 2467-68, 2473-76.)
The Assessor did not challenge Hebron-Vision’s theory; instead, he claimed that
Hebron-Vision did not alleviate any government burden because it received subsidies
from various governmental sources. (See, e.g., Cert. Admin. R. at 2261-64, 3290-97.)
(See also Cert. Admin. R. at 2020-40, 2049-57 (the Assessor’s post-hearing
submission).) The Indiana Board’s final determination only recites the parties’ arguments
10
on this issue. (See Cert. Admin. R. at 2076 ¶ 50, 2086 ¶ 84, 2084-89 ¶¶ 80-92.) Thus,
to the extent it does not contain any specific findings regarding the validity of Hebron-
Vision’s legal argument, it is erroneous. See infra Part III.
This Court has previously explained that the Indiana Board may not simply refuse
to consider probative evidence but must deal with it in some meaningful manner. Clark
v. State Bd. of Tax Comm’rs, 694 N.E.2d 1230, 1235 (Ind. Tax Ct. 1998). Similarly, the
Indiana Board must address the validity of a party’s legal argument, not simply ignore it.
Here, the statutory provisions on which Hebron-Vision relied and related record evidence,
(see, e.g., Cert. Admin. R. at 2531-34, 2997-3001), established that the federal
government as well as the State of Indiana assumed the burden of providing affordable
housing to certain individuals and families during the years at issue.
II. Substantial Evidence
Hebron-Vision also claims that the Indiana Board’s findings regarding the a)
management fees, b) rental rates, c) residents’ income levels and screening process, and
d) additional services are not supported by substantial evidence, arbitrary, capricious, and
not in accordance with the law. (See Pet’r Br. at 22-45; Pet’r Reply Br. 10-27.) The
Assessor maintains, however, that those findings are proper because they are supported
by substantial evidence, and thus, are not arbitrary, capricious, or inconsistent with the
law. (See Resp’t Br. at 21-39.)
When reviewing an Indiana Board final determination, the Court will accept the
Indiana Board’s findings of fact so long as they are supported by substantial evidence.
Cedar Lake Conference Ass’n v. Lake Cty. Prop. Tax Assessment Bd. of Appeals, 887
N.E.2d 205, 207 (Ind. Tax Ct. 2008), review denied. In evaluating whether substantial
11
evidence exists, the Court will not reweigh the record evidence or judge the credibility of
the witnesses who testified at the Indiana Board’s hearing. See Freudenberg-NOK Gen.
P’ship v. State Bd. of Tax Comm’rs, 715 N.E.2d 1026, 1030 (Ind. Tax Ct. 1999), review
denied. The Court will find that substantial evidence exists when evidence is more than
a scintilla, that is, evidence that reasonable minds might accept as adequate to support
the Indiana Board’s conclusion. See Porter-Starke Servs., 88 N.E.3d at 820.
A. Management Fees
In its final determination, the Indiana Board explained that the evidence regarding
the management fees indicated that Hebron-Vision did not own, occupy, or use Misty
Glen for charitable purposes. (See Cert. Admin. R. at 2088 ¶ 89.) Specifically, the
Indiana Board stated it was
concerned about the founders of [Hebron-Vision/Vision
Communities] profiting from Misty Glen by using their for-profit
company[, Flaherty & Collins,] to manage the property. A fee of 6%
of gross rent plus the salary of an employee, is not insignificant.
Using [a witness’s] 10% capitalization rate, that equates to a
$710,000 boon to Flaherty & Collins. This is contrary to the
requirement that property be owned, occupied, and used for a
charitable purpose.
(Cert. Admin. R. at 2088 ¶ 89.) (See also Cert. Admin. R. at 2661-65 (regarding the 10%
capitalization rate).) The Assessor contends that this finding is supported by substantial
evidence because 1) Hebron-Vision/Vision Communities and Flaherty & Collins have
common ownership, 2) Hebron-Vision’s “own uncontroverted evidence” demonstrates
that the purpose of Flaherty & Collins is to make money for its owners and investors, and
3) a “‘boon’ can be defined as a ‘bonus, benefit or financial gain[.]’” (See Resp’t Br. at
22-23; Oral Arg. Tr at 39-43.)
At the outset, the Assessor asserts that “it is not disputed that [Hebron-
12
Vision/Vision Communities] and Flaherty & Collins have common ownership.” (Resp’t Br.
22 (citing Cert. Admin. R. at 2272-73).) The evidence, however, does not support his
assertion because it indicates that Hebron-Vision is wholly owned by Vision Communities
and that Vision Communities is an Indiana nonprofit corporation formed under the Indiana
Nonprofit Corporation Act of 1991. (See Cert. Admin. R. at 690, 711, 716-18, 728.)
Consequently, Vision Communities does not have private owners, but is instead owned
by itself. See, e.g., Yogi Bear Membership Corp. v. Stalnaker, 571 N.E.2d 331, 333-34
(Ind. Ct. App. 1991) (holding that because a nonprofit corporation is a legal entity separate
and distinct from its members, it must be represented by legal counsel in judicial
proceedings).
Moreover, in finding as it did, the Indiana Board added Flaherty & Collins’ offsite
property management fee and the onsite property manager’s annual salary (as did the
Assessor), applied a 10% capitalization rate to the result, and then attributed the entire
amount to Flaherty & Collins. (See Cert. Admin. R. at 754-55, 2088 ¶ 89, 2616-19.) The
Indiana Board erred in doing so for two reasons. First, the Indiana Board’s finding that
Flaherty & Collins received a management fee of $710,000 is not supported by substantial
evidence. Indeed, during the Indiana Board hearing, Hebron-Vision’s witnesses testified
that apartment complexes employ offsite and onsite property managers because they
perform different jobs. (See Cert. Admin. R. at 2909-14, 2397-99.) While offsite property
managers typically receive anywhere from 2.5 to 7 percent of a property’s gross rents
depending on its size, onsite property managers receive set salaries. (See Cert. Admin.
R. at 2619-20, 2882-83, 2911.) For instance, Misty Glen’s offsite property manager,
Flaherty & Collins, received 6% of the gross rents for collecting rental payments; paying
13
the bills; providing accounting services; and hiring, overseeing the training of, and
supervising certain staff. (See Cert. Admin. R. at 793, 834, 879, 927, 2910-11, 2934,
2938-41.) Misty Glen’s onsite property manager, however, received an annual salary of
over $30,000 for handling the day-to-day operations of the complex and the distinct needs
of the tenants. (See Cert. Admin. R. at 794, 835, 880, 928, 2625-26, 2911-12.) The
witnesses further explained that although the onsite property manager was an employee
of Flaherty & Collins, in order to provide her with better healthcare benefits, Hebron-Vision
ultimately paid her salary by reimbursing Flaherty & Collins. (See Cert. Admin. R. at
2624-26, 2883-85.)
In addition, the witnesses testified that Flaherty & Collins, who served as the offsite
property manager before Hebron-Vision even purchased the property, did not receive any
of the tax credits from the original owner/developer. (See Cert. Admin. R. at 2346, 2453.)
Indeed, during the years at issue Flaherty & Collins merely broke even or lost money in
managing Misty Glen because the management fee did not cover its overhead. (See
Cert. Admin. R. at 2289-92, 2396-97, 2402, 2406-08.) In addition, there was no evidence
that the owners of Flaherty & Collins, who also served on the Board of Directors for Vision
Communities, had disclosed any conflict of interest or received any excess benefits due
to its operation of Misty Glen. (See Cert. Admin. R. at 707-10, 2408-10, 2364-65, 2372-
73, 2384-87, 2393, 2405 (defining an “excess benefit” as “a benefit or payment provided
that exceeds the value of services that were provided in return”).) Moreover, there is no
indication that the services for which the offsite and onsite property managers were
compensated were not actually performed. Collectively, this unrebutted evidence
demonstrates that 1) the offsite property management fee and the onsite property
14
manager’s salary are legitimate business expenses; 2) the offsite and onsite management
expenses are not excessive; and 3) neither Flaherty & Collins nor its owners profited from
the operation of Misty Glen during the years issue.
Second, neither party could explain why the Indiana Board capitalized the
aggregated offsite property management fee and onsite property manager’s salary. (See,
e.g., Oral Arg. Tr. at 11-12, 39.) To the extent the Indiana Board sought to apply the
income approach, a method for valuing real estate, its methodology was flawed. See
2011 REAL PROPERTY ASSESSMENT MANUAL (incorporated by reference at 50 IND. ADMIN.
CODE 2.4-1-2 (2011)) at 2 (providing that the income approach, which is “used for income
producing properties that are typically rented[,] converts an estimate of income, or rent,
[a] property is expected to produce into value through a mathematical process known as
capitalization”). Indeed, in this context, the capitalization of Hebron-Vision’s expenses
has no basis. As stated above, the capitalization of net income is used to arrive at the
value of property using the income approach, such is not the case here. See, e.g.,
Madison Cty. Assessor v. Sedd Realty Co., 125 N.E.3d 676, 678-79 (Ind. Tax Ct. 2019)
(illustrating the application of the income approach). Consequently, the Indiana Board’s
methodology failed to produce a reliable estimate of value and thus lacks probative value.
See Tipton Cty. Health Care Found., Inc. v. Tipton Cty. Assessor, 961 N.E.2d 1048, 1051
n.3 (Ind. Tax Ct. 2012) (providing that “‘[p]robative evidence is evidence that tends to
prove or disprove a point in issue’”) (citation omitted).
The Indiana Board’s final determination does not explain its basis for disregarding
the uncontroverted record evidence regarding the offsite property manager’s fee and the
onsite property manager’s salary or for capitalizing the aggregated earnings of the offsite
15
and onsite property managers. Consequently, its finding that Hebron-Vision used Misty
Glen for its own profit rather than charitable purposes is not only unsupported by
substantial evidence, but also arbitrary and capricious. See, e.g., Sedd Realty, 125
N.E.3d at 681 (providing that an Indiana Board final determination is “‘arbitrary and
capricious when there is no basis in the record that would lead a reasonable person to
the same conclusion’”) (citation omitted).
B. Rental Rates
The Indiana Board also determined that the evidence concerning Misty Glen’s
rental rates did not establish that its rental rates were below-market during the years at
issue, explaining that
[a]lthough [Hebron-Vision] claims to offer its tenants “affordable”
apartments, affordability does not equate to charitable. [Hebron-
Vision] presented conflicting evidence making it difficult for the Board
to definitively conclude that the rents charged at Misty Glen are in
fact “below market.” In fact, according to . . . [one of Hebron-Vision’s
witnesses], Misty Glen[’s] rents are actually higher than The Pines, a
nearby Section 515 property.
[Hebron-Vision] presented a [R]ent [A]nalysis prepared by . . . a
certified general appraiser. According to [the Appraiser], in 2012
Misty Glen rented one bedroom apartments “at the lower end of the
range” of adjusted market rents on a per square foot basis. For two
bedrooms, [the Appraiser] determined that Misty Glen rented “below
average” of the adjusted market rents on a per square foot basis.
And finally, for three bedrooms, [the Appraiser] concluded Misty Glen
rented “at the low end of the range” of adjusted market rents on a per
square foot basis. [The Appraiser] deduced that in 2012, Misty
Glen[’s] rents were “below market.” [The Appraiser] went on to state
that, based on her “continued research,” Misty Glen[’s] rents for
2013, 2014, and 2015 were “more likely than not” also below market.
The Board will not accept [the Appraiser’s] conclusory statement that
based on her “continued research” 2013, 2014, and 2015 rents were
“more likely than not” also below market. As a result, [the Appraiser]
has failed to convince the Board that Misty Glen charged below
market rents in 2013, 2014, and 2015. With that being said, even if
the Board accepts that the 2012 rents were at the “low end” of the
16
range of rents charged by purportedly comparable properties, having
a rent below the average does not make an apartment complex
“charitable.”
(Cert. Admin. R. at 2088-89 ¶¶ 90-91.) The Assessor contends that these findings are
proper because Hebron-Vision presented “conflicting evidence” by showing that The
Pines, another rent-restricted property, had lower rental rates than Misty Glen. (See
Resp’t Br. at 26-27.) The Assessor also maintains that his Market Rent Study shows that
Misty Glen’s rental rates were higher than the average market rental rates for the area.
(See Resp’t Br. at 24-26.) Moreover, the Assessor claims that Hebron-Vision’s Rent
Analysis and the related testimony lack probative value because the Rent Analysis
conclusions are derived from an incomparable market, and the testimony regarding the
rental rates for 2013 through 2015 was “mere speculation” because the Appraiser did not
conduct a rent analysis for those years.11 (See Resp’t Br. at 23-24; Oral Arg. Tr. at 30-
31.) The Assessor’s arguments are unpersuasive for several reasons.
First, and most importantly, Hebron-Vision presented Porter County fair market
rent (“FMR”) information developed by HUD for the years at issue. (See Cert. Admin. R.
at 989-99, 1018-30, 1035-48, 1053-65, 1069-81.) This evidence indicates that HUD uses
the FMRs to establish standard rental amounts for its rental assistance programs,
including setting the rent ceiling for the HOME/Section 42 program. (See Cert. Admin. R.
at 990, 2761 (providing that the HOME and Section 42 programs are one in the same).)
11
The Assessor asks the Court to disregard Hebron-Vision’s Rent Analysis and the related
testimony, claiming that the Indiana Board erred in overruling his objection. (See Resp’t Br. at
27; Oral Arg. Tr. at 43-45.) The Court, however, need not address this issue because its
determination that Misty Glen’s rental rates are below market is not based on the Rent Analysis.
Moreover, even if the Court addressed the issue, it would uphold the Indiana Board’s ruling
because the Assessor failed to develop a sufficient argument on appeal. See, e.g., Scopelite v.
Indiana Dep’t of Local Gov’t Fin., 939 N.E.2d 1138, 1145 (Ind. Tax Ct. 2010) (indicating that the
Court will not resolve an issue when its proponent fails to provide sufficient legal analysis).
17
The evidence further provides that HUD’s FMRs
are gross rent estimates[ that] include the shelter rent plus the cost
of all tenant-paid utilities, except telephones, cable or satellite
television service, and internet service. HUD sets FMRs to assure
that a sufficient supply of rental housing is available to program
participants[, and therefore,] FMRs must be both high enough to
permit a selection of units and neighborhoods and low enough to
serve as many low-income families as possible. The level at which
FMRs are set is expressed as a percentile point within the rent
distribution of standard-quality rental housing units. The current
definition is the 40th percentile rent, the dollar amount below which
40 percent of the standard-quality rental housing units are rented.
The 40th percentile of rent is drawn from the distribution of rents of
all units occupied by recent movers (renter households who moved
to their present residence within the past 15 months). HUD is
required to ensure that FMRs exclude non-market rental housing in
their computation. Therefore, HUD excludes all units falling below a
specified rent level determined from public housing units in HUD’s
program databases as likely to be either assisted housing or other
otherwise at a below-market rent, and units less than two years old.
(Cert. Admin. R. at 990 (footnotes omitted and emphasis added).) (See also Cert. Admin.
R. at 990 (providing “[s]tandard-quality rental housing units have the following attributes:
Occupied rental units paying cash rent; Specified renter on 10 acres or less; With full
plumbing; With full kitchen; Unit more than 2 years old, and Meals not included in the
rent”).) This evidence demonstrates the federal standard used to determine a low-income
individual or family eligible for assistance, and thus, that HUD’s FMRs for Porter County
are below-market because 60% of the rental rates within that market are in excess of
HUD’s FMR rates.
Second, when that evidence is considered in light of the other unrebutted
evidence, it shows that during the years at issue Misty Glen’s average rental rates for one
bedroom units ranged from about $30 to $100 less than HUD’s FMRs for Porter County,
its average rental rates for two bedroom units were about $90 to $160 lower than those
18
of HUD, and its average rental rates for three bedroom units were anywhere from $200
to $240 less than HUD’s. (See Cert. Admin. R. at 1705.) (Compare also Cert. Admin. R.
at 799-802, 842-45, 887-90, 935-38 (Misty Glen’s Rent Rolls) with Cert. Admin. R. at
1018, 1035, 1053, 1069 (HUD’s FMR data for Porter County).) Furthermore, contrary to
the Assessor’s claim, and perhaps the Indiana Board’s finding,12 the fact that The Pines’
rental rates were lower than those of Misty Glen does not mean Hebron-Vision’s evidence
conflicted. (See Cert. Admin. R. at 1768.) Rather, it shows that its evidence is consistent
because the rental rates at both properties are lower than HUD’s FMRs for Porter County,
and thus, below market. (See Cert. Admin. R. at 2956, 2975, 3182 (indicating that The
Pines’ rental rates are lower than those of Misty Glen because the annual incomes of its
residents, unlike those of Misty Glen’s residents, must be at or below 30% of the area
median income).)
Third, the Assessor’s Market Rent Study does not rebut Hebron-Vision’s evidence
that Misty Glen’s rental rates were below market because it lacks probative value. See
Tipton Cty. Health Care Found., 961 N.E.2d at 1051 n.3 (providing that probative
evidence tends to prove or disprove a point in issue). More specifically, during the Indiana
Board hearing, the Assessor explained that the rental rates set forth in his Market Rent
Study were based on a total of seven different properties located in Hebron (Porter
County) and Lowell (Lake County). (See Cert. Admin. R. at 1992, 3203-28.) The
Assessor, however, failed to establish that those seven properties were truly comparable
to Misty Glen or that his rental rate conclusions were reliable because: 1) the Market
Rent Study contains scant information regarding the amenities of the seven properties;
12
The Indiana Board did not identify which parts of Hebron-Vision’s evidentiary presentation
conflicted. (See Cert. Admin. R. at 2088 ¶ 90.)
19
2) there is no description of how the amenities of the seven properties were similar to or
different from those of Misty Glen; 3) there is no explanation of how the differences
between the seven properties and Misty Glen affected the rental rate conclusions; 4) there
is no indication whether the Hebron properties are rent-restricted; 5) no adjustments were
made for location although three of the properties were located in another county; and 6)
no adjustments were made for age even though all seven of the properties were built 10
to 44 years before Misty Glen. (See Cert. Admin. R. at 1992, 3203-28, 3228-29, 3271-
74; see also Cert. Admin. R. at 2308-09, 2801, 2845-46, 2851, 2853-56, 2942-43
(providing that apartment complexes in Hebron are all rent-restricted).) See also, e.g.,
Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 470-71 (Ind. Tax Ct. 2005) (providing
that to establish comparability, litigants must explain the subject property’s
characteristics, how those characteristics compared to those of the other properties, and
how any differences in any of their characteristics affected their values), review denied.
Fourth, the Indiana Board’s findings that the Rent Analysis properties are
“purportedly comparable” to Misty Glen is not only arbitrary and capricious, but also
unsupported by substantial evidence. More specifically, because the Indiana Board’s
final determination does not reveal why it questioned the comparability of the Rent
Analysis properties to Misty Glen, its finding on that subject is arbitrary and capricious.
To the extent the Indiana Board’s finding is premised on the Assessor’s claim that the
Valparaiso and Hebron markets are not comparable, the final determination does not
explain why the Rent Analysis, which contains adjustments for location, failed to account
for any differences between the two markets. (See Cert. Admin. R. at 2803-07, 2878-
79.) Furthermore, the final determination disregards that the Rent Analysis rental rate
20
conclusions are not based exclusively on Valparaiso properties. Indeed, the Rent
Analysis and related testimony establish that the average market rents in Portage, Crown
Point, and Merrillville, as reported in the Tikijian and Associates 2012 Indiana Apartment
Survey (the “Tikijian Survey”), were considered in developing the final Rent Analysis
rental rate conclusions. (See Cert. Admin. R. at 455-56, 2816-17.) Accordingly, the
Indiana Board’s finding that the Rent Analysis properties were “purportedly comparable”
is arbitrary and capricious and unsupported by substantial evidence. See, e.g., Sedd
Realty, 125 N.E.3d at 680-81 (explaining that the Indiana Board’s failure to explain its
rationale for reaching a conclusion that is not supported by substantial evidence is
arbitrary and capricious).
Lastly, the Indiana Board’s finding that the Appraiser’s testimony regarding Misty
Glen’s rental rates for 2013 through 2015 was conclusory is also arbitrary and capricious
and unsupported by substantial evidence. Specifically, the record reveals that during the
Indiana Board hearing, the Appraiser reviewed a few pages from the Tikijian Survey and
then explained that the extent of the rental rate increases in Portage, Crown Point, and
Merrillville for 2013 through 2015 indicated that Misty Glen’s rental rates remained below
market during those years. (See Cert. Admin. R. at 2821-26.) Therefore, the Appraiser’s
testimony contains her rationale and is not conclusory. See, e.g., BLACK’S LAW
DICTIONARY 362 (11th ed. 2019) (defining “conclusory” as “[e]xpressing a factual inference
without stating the underlying facts on which the inference is based”). Consequently, the
Indiana Board erred in concluding that the evidence failed to establish that Misty Glen’s
rental rates were below market.
21
C. Residents’ Income Levels and Screening Process
In concluding that Hebron-Vision failed to show it used Misty Glen for charitable
purposes, the Indiana Board also found that
the predominate and primary use of the subject property is providing
apartment living to its tenants. [Hebron-Vision] characterized its
tenants as “disadvantaged” because their income levels fall within
certain income limits established by IHCDA. However, [Hebron-
Vision] failed to show the income levels of its tenants differ from the
income levels of residents at other conventional apartments.
Similar to the [p]etitioner in Jamestown Homes, [Hebron-Vision]
retains several “typical” landlord rights: tenants can be evicted if they
failed to pay their rent, charges can be applied for late rent payments,
an initial “application screening” is conducted to determine if tenants
had adequate credit, and tenants must prove they have had no prior
evictions. . . . Admittedly, [Hebron-Vision] has “often” denied
potential tenants during the initial screening. Consequently,
[Hebron-Vision] evicted four tenants during the years in question for
nonpayment of rent. Clearly[, Hebron-Vision] is using shrewd
business skills in selecting tenants. But this also indicates that
[Hebron-Vision] is not selecting tenants who are in most need of
charitable housing or who have difficulties finding housing due to
prior evictions or bad credit.
(Cert. Admin. R. at 2087 ¶¶ 86-87 (citation omitted and emphasis added).) The Assessor
contends that these Indiana Board findings are supported by substantial evidence
because they are based entirely on Hebron-Vision’s Resident Selection Criteria Policy
and the related testimony. (See Resp’t Br. at 34-36.) Indeed, the Assessor claims this
finding is proper because the evidence “indicates that [Hebron-Vision] did not rent to
tenants avoided by landlords in general and tenants who are in need of true charity.”
(Resp’t Br. at 39.)
Although the Indiana Board’s finding is based on Hebron-Vision’s evidence, it
cannot stand because it: 1) is derived from the faulty legal premise that the subjects of
charity must be the neediest; and 2) fails to take into account the statutes and evidence
22
that show that Misty Glen’s residents are in need. With respect to the first point, there is
no legal requirement that a taxpayer’s disposition of charity be confined to a particular
subset of individuals. See, e.g., Raintree Friends Hous., Inc. v. Indiana Dep’t of State
Revenue, 667 N.E.2d 810, 814 (Ind. Tax Ct. 1996) (providing that an organization that
“limits the dispensation of its blessings to one sex, or to the inhabitants of a particular city
or district, or to the membership of a particular religious or secular organization, does not
. . . deprive it either in legal or popular apprehension of the character of a charitable
institution” (quoting City of Indianapolis v. Grand Master, etc., of Grand Lodge of Indiana,
25 Ind. 518, 522 (1865))).
With respect to the second point, the Legislature has determined that individuals
and families whose income does not exceed 80% of the area median income (“AMI”) are
in need of safe, sanitary, and affordable housing. See I.C. §§ 5-20-1-1(1), (3), -4-5. Thus,
those individuals and families are proper subjects of charity. The evidence in this case
shows that the policies and procedures implemented by Hebron-Vision during the years
at issue ensured that the annual incomes of nearly all of Misty Glen’s actual residents
were at or below 60% of the AMI. (See, e.g., Cert. Admin. R. at 2997-3001.) In addition,
the evidence indicates that during the 2014 tax year, 21% of Porter County households
were ALICE13 Households (i.e., households with incomes above the federal poverty level,
but below the basic cost of living), 10% of Porter County households were Poverty
Households, and 36% of Hebron’s households were ALICE and Poverty Households.
(See Cert. Admin. R. at 1410, 1584-85.)
13
“ALICE is an acronym that stands for Asset Limited, Income Constrained, Employed,
comprising households with income above the Federal Poverty Level but below the basic cost of
living.” (Cert. Admin. R. at 1410.)
23
Furthermore, the evidence shows that in 2014, the AMI for a Porter County family
of four ranged from $60,903 to $63,800. (See Cert. Admin. R. at 1066, 1584.) Based on
those figures, the AMI of a Porter County family of four surviving on an AMI of 60% would
have ranged from $36,540 to $38,280.14 In turn, the Household Survival Budget (i.e., the
bare minimum needed to survive) for a Porter County family of four was $53,400.15 (Cert.
Admin. R. at 1584.) Thus, a Porter County family of four living on 60% of AMI in 2014
made about $16,000 less than what was considered to be the bare minimum needed to
survive. Moreover, the evidence indisputably shows that an undisclosed number of Misty
Glen’s residents16 still required additional financial assistance to make ends meet despite
the fact that their rental rates were below HUD’s FMRs. (See, e.g., Cert. Admin. R. at
2344-46.) When the evidence is considered in light of the relevant statutory provisions,
it indicates that Misty Glen’s residents were proper subjects of charity. The Indiana
Board’s final determination does not explain the basis for discounting either the statutes
or the evidence on this issue. Accordingly, this finding cannot stand because it is not in
accordance with the law, is not supported by substantial evidence, and is arbitrary and
capricious.
D. Additional Services
The Indiana Board’s final determination also provides that Hebron-Vision
14
The calculations are as follows: ($60,903 * 0.6 = $36,541.80) and ($63,800 * 0.6 = $38,280).
15
The “Household Survival Budget” “calculates the actual costs of basic necessities (housing,
[childcare], food, health care, and transportation) in Indiana, adjusted for different counties and
household types.” (Cert. Admin. R. at 1410.)
16
The Assessor contends that the evidence shows that 22 of Misty Glen’s residents received
Section 8 rental vouchers. (See Resp’t Br. at 31-32 (citing Cert. Admin. R. at 2344).) (See also,
e.g., Cert. Admin. R. at 2026.) The certified administrative record, however, contains no evidence
to that effect. (See generally Cert. Admin. R.)
24
introduced evidence in an attempt to prove it provides “an element
of fraternity and brotherhood.” According to [one of the witnesses],
Misty Glen offers various services to its tenants that “typically (are)
not provided at for-profit entities.” Those services include
neighborhood watch meetings, self-defense training, fitness and
nutrition training, scam education, various social events, resumé
writing and job search assistance, free blood pressure tests, and help
with tax preparation. Admittedly, several of these services are
provided to the tenants from several outside government and private
sector agencies and are not actually provided by [Misty
Glen/Hebron-Vision]. While these services may be admirable, the
Board finds these activities fail to prove the predominate use of the
property is for charitable purposes. Additionally, these services are
not the type of activities that relieve human want or provide a benefit
that will inure to the general public sufficient to justify the loss of tax
revenue.
(Cert. Admin. R. at 2087-88 ¶ 88 (citations omitted).) The Assessor claims that this finding
is proper because Hebron-Vision’s evidence indicates that a “‘substantial amount’ of [the]
social services provided for Misty Glen tenants were provided not by Misty Glen, but were
instead provided by outside agencies, and the social services provided by outside
agencies to Misty Glen tenants were ‘acts of charity’ provided by outside agencies, not
‘acts of charity’ provided by Misty Glen [] or Hebron-Vision[.]” (Resp’t Br. at 29 (citations
omitted).) The Court is not persuaded.
It is well-established that the qualification for an exemption under Indiana Code §
6-1.1-10-16 does not require a unity of ownership, occupancy, and use. See, e.g.,
Grandview Care, 826 N.E.2d at 183. Indeed, “‘[if] one seeks to reward charities for their
activities and to encourage beneficial public service, drafting a statute that severely limits
the ability of a charity to organize and operate in an efficient and cost-effective manner
would be illogical.’” Id. (quoting Sangralea Boys Fund, Inc. v. State Bd. of Tax Comm’rs,
686 N.E.2d 954, 958 (Ind. Tax Ct. 1997), review denied). Thus, when a unity of
ownership, occupancy, or use is lacking, as here, the Court must “‘ensure that the
25
particular arrangement is not driven by a profit motive.’” Id. (citation omitted). Moreover,
this Court has observed that a landlord’s attempt to provide an “‘element of fraternity,
brotherhood, or good fellowship intended to improve the spirits or impel to renewed effort,’
whether it be through, for example, free services for, or counseling of, its tenants” could
indicate that the landlord’s property is being used for charitable purposes. See
Jamestown Homes of Mishawaka, Inc. v. St. Joseph Cty. Assessor, 909 N.E.2d 1138,
1144 (Ind. Tax Ct. 2009).
As previously mentioned, there is no evidence that Hebron-Vision, Vision
Communities, Flaherty & Collins, or the owners of Flaherty & Collins improperly profited
from Misty Glen’s operations. Rather, the evidence indicates that when Misty Glen’s
revenues exceeded its expenses, the revenues belonged to Vision Communities and
were either reinvested into Misty Glen or used to further other charitable purposes. (See
Cert. Admin. R. at 2404-05, 2440-43.) The evidence also shows that even though Misty
Glen’s revenues exceeded its expenses in 2012 and 2015 only, Hebron-Vision has not
been able to repay Vision Communities the balance of a $70,000 loan for Misty Glen’s
operations. (See Cert. Admin. R. at 791-98, 832-39, 877-84, 925-32, 2441-43, 2629-33.)
Furthermore, the evidence shows that Hebron-Vision provided Misty Glen’s
residents with access to free tax preparation services and blood pressure screenings;
monthly meetings on topics that included self-defense, senior scams, and nutrition; on-
site community book and video libraries; holiday/special event parties and contests; and
referral information for rent, food, utility, and transportation assistance. (See Cert. Admin.
R. at 512-17, 2984-86, 2993-3002, 3052-68, 3081-82.) Additionally, the residents had
access to a business center where they received help with their resumés, completing
26
online applications, and performing online research for jobs. (See Cert. Admin. R. at
2986-99.) The evidence also shows that Hebron-Vision worked with its tenants to keep
evictions at a minimum, as evidenced by the fact that only six tenants were evicted over
the four year period at issue.17 (See Cert. Admin. R. at 3007-13.) Accordingly, based on
the totality of the evidence, the Indiana Board erred in concluding that Hebron-Vision’s
provision of additional services, whether directly or indirectly, “are not the type of activities
that relieve human want or provide a benefit that will inure to the general public sufficient
to justify the loss of tax revenue.” (See Cert. Admin. R. at 2087-88 ¶ 88.)
III. Whether Hebron-Vision lessened a governmental burden
Hebron-Vision has also claimed that the Indiana Board’s final determination must
be reversed because the unrebutted, probative evidence established that it qualified for
a charitable purposes exemption by showing that its ownership, occupancy, and use of
Misty Glen lessened a governmental burden. (See, e.g., Pet’r Br. at 45-46.) The
Assessor, on the other hand, claims that because the evidence failed to show Hebron-
Vision “‘relieved the government of its obligations,’” Hebron-Vision did not show it
qualified for an exemption. (See Resp’t Br. at 31 (citing Jamestown Homes, 909 N.E.2d
at 1142).)
The Assessor explains that Hebron-Vision did not relieve the government of its
financial obligations because Hebron-Vision, either directly or indirectly via Vision
Communities and Misty Glen’s tenants, received grants, cash contributions, and
rent/utility subsidies from government sources. (See Resp’t Br. at 31-34 (citing, e.g., Cert.
Admin. R. at 805, 823, 854, 899, 956); Oral Arg. Tr. at 28-29.) The Assessor therefore
17
Two of the tenants were evicted for failing to comply with recertification, drug, or crime policies
and the other four tenants were evicted for failing to pay rent. (See Cert. Admin. R. at 3007-13.)
27
concludes that the evidence “show[s] that the government is carrying the financial burden
of Misty Glen[’s] tenants, and in some cases ‘relieving the rent burden’ of the tenants, not
that [Hebron-Vision] or Vision Communities relieved the government of its obligations.”
(Resp’t Br. at 33-34.) The Court is not persuaded, however, for two reasons.
First, contrary to the Assessor’s claim, the record evidence does not show that
Hebron-Vision, by virtue of its relationship to Vision Communities, received state/local
government grants and cash contributions. To support his claim, the Assessor cites
portions of Vision Communities’ federal tax returns for the years at issue. (See Cert.
Admin. R. at 805-31, 846-76, 891-924, 940-87.) The returns report the aggregated
incomes, expenses, and assets of Misty Glen along with at least three other Indiana
affordable housing complexes. (See Cert. Admin. R. at 826-27, 870-71, 920, 924, 973-
75.) (See also Cert. Admin. R. at 2568-69, 2697-98, 2746-47.) The returns do not,
however, “state what money or profit Vision Communities [] put back into [] Misty Glen[.]”
(See Cert. Admin. R. at 2707-08.) The returns also do not indicate the purposes for which
Vision Communities received the purported government grants and cash contributions.
(See, e.g., Cert. Admin. R. at 2704-09.) Consequently, Vision Communities’ tax returns
do not show that Hebron-Vision actually received grants and cash contributions from
government sources during the years at issue.
Second, and just as importantly, this Court has explained that
when a private organization uses its property to perform charitable
acts that relieve the government of its obligations, an exemption is
proper: “when a private organization takes on a task that would
otherwise fall to the government, this provides a benefit to the
community as whole because it allows the government to direct its
funds and attention to other community needs.”
Jamestown Homes, 909 N.E.2d at 1141 (quoting College Corner, L.P. v. Dep’t of Local
28
Gov’t Fin., 840 N.E.2d 905, 910 (Ind. Tax Ct. 2006)). A taxpayer does not, however,
need to demonstrate that it relieves a governmental obligation completely to qualify for a
charitable purposes exemption. See, e.g., Grandview Care, 826 N.E.2d at 184 (providing
that “Indiana courts have recognized that ‘charitable’ is not necessarily the equivalent of
‘free’”). Indeed, “[e]ven when a taxpayer receives government funds, it ‘fulfill[s] a
charitable purpose to the extent that it lessened some part of the government’s burden.’”
Porter-Starke Servs., 88 N.E.3d at 819 (citations omitted). Consequently, to qualify for a
charitable purposes exemption “a taxpayer must provide actual evidence that a
government burden exists and that this burden is relieved beyond the extent of the
grants.” Id. at 820 (citation omitted).
The evidence in this case shows that the federal government and the State of
Indiana have taken on the burden of providing affordable housing to individuals and
families whose annual incomes do not exceed 80% of the AMI. Although federal tax
credits were allocated to a private organization to facilitate the development of Misty Glen,
the evidence indisputably shows that Hebron-Vision, Vision Communities, and Flaherty
& Collins did not receive any of those tax credits. The evidence also shows that Hebron-
Vision voluntarily charges its tenants, (i.e., individuals/families with annual incomes at or
below 60% of the AMI), below market rental rates and keeps evictions to a minimum.
(See, e.g., Cert. Admin. R. at 2531-34.) Hebron-Vision also provides its tenants with
access to, and facilitates the provision of, a variety of social services and activities. In
addition, there is absolutely no evidence that Hebron-Vision uses Misty Glen to generate
29
profits for Flaherty & Collins or any other private organization/individual.18 Given the
totality of the record evidence, therefore, the Indiana Board erred when it concluded that
Hebron-Vision failed to establish that it owned, occupied, and used its property for
charitable purposes, and thus, qualified for a charitable purposes exemption during the
years at issue.
CONCLUSION
For the above-stated reasons, the Court REVERSES the final determination of the
Indiana Board.
18
The Assessor has claimed that Hebron-Vision is not entitled to a charitable purposes exemption
because the evidence indicates that Vision Communities and Hebron-Vision “donated only
meager amounts to charities and zero to Hebron community charities.” (See Resp’t Br. at 37-38.)
This claim is unavailing because Hebron-Vision has not claimed that it qualified for a charitable
purposes exemption because it makes charitable contributions to other organizations. (See
generally Pet’r Br.)
30