MARY ABRAYTIS v. PORTER COUNTY ASSESSOR ( 2023 )

PETITIONER APPEARING PRO SE: ATTORNEYS FOR RESPONDENT:
MARY ABRAYTIS ROBERT M. SCHWERD
Valparaiso, IN SCHWERD, FRYMAN, &
TORRENGA, LLP FILED
Valparaiso, IN Oct 03 2023, 3:29 pm
CLERK
CRISTIN L. JUST Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY AT LAW
Crown Point, IN
_____________________________________________________________________
IN THE
INDIANA TAX COURT
_____________________________________________________________________
MARY ABRAYTIS, )
)
Petitioner, )
)
v. ) Cause No. 21T-TA-00042
)
PORTER COUNTY ASSESSOR, )
)
Respondent. )
_____________________________________________________________________
ON APPEAL FROM A FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
October 3, 2023
WENTWORTH, Senior Judge
Mary Abraytis has challenged the Indiana Board of Tax Review’s final
determination valuing her real property for the 2020 assessment year. Upon review, the
Court affirms the Indiana Board’s final determination.
FACTS AND PROCEDURAL HISTORY
Abraytis owns residential property in Valparaiso, Indiana. (See Cert. Admin. R. at
70.) She purchased the property in 2015 for $169,200. (See Cert. Admin. R. at 33, 70.)
For the 2019 assessment year, Abraytis’s property was valued at $174,900
($32,700 for land and $142,200 for improvements). (Cert. Admin. R. at 70.) Abraytis
challenged the assessment, first with the Porter County Property Tax Assessment Board
of Appeals (“PTABOA”) and then with the Indiana Board. (See, e.g., Cert. Admin. R. at
70, 94 ¶ 9, 100 ¶ 31 n.4.) In a final determination issued on December 14, 2020, the
Indiana Board ordered that Abraytis’s 2019 assessment be reduced to $150,500 ($32,700
for land and $117,800 for improvements). (See, e.g., Cert. Admin. R. at 70, 94 ¶ 9, 100
¶ 31 n.4.)
The very next year (i.e., the 2020 assessment year), the Assessor again increased
Abraytis’s property assessment, to $196,400 ($32,700 for land and $163,700 for
improvements). (See Cert. Admin. R. at 1-3, 70.) Abraytis appealed the assessment
increase to the PTABOA and, when the PTABOA failed to timely act on her appeal, she
petitioned the Indiana Board for relief. (See Cert. Admin. R. at 1-3, 93 ¶ 3 n.1.) See also
IND. CODE § 6-1.1-15-1.2(k) (2021) (allowing a taxpayer to appeal directly to the Indiana
Board if a county property tax assessment board of appeals did not issue a determination
within 180 days of the date the notice of appeal was filed).
The Indiana Board held a telephonic hearing on Abraytis’s appeal on June 22,
2021. During the hearing, the Assessor was the first of the two parties to present
evidence because, as he acknowledged, he bore the burden of proof under Indiana Code
§ 6-1.1-15-17.2. (See Cert. Admin. R. at 117-18.) To that end, the Assessor presented
an appraisal report that had been prepared by William L. Eenshuistra, Jr., an Indiana
certified general appraiser. (See Cert. Admin. R. at 72-88.) The appraisal report, dated
June 4, 2021, and completed in conformance with the Uniform Standards of Professional
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Appraisal Practice (“USPAP”), estimated the January 1, 2020, value of Abraytis’s property
to be $212,000. (See Cert. Admin. R. at 72, 75, 77.) The appraisal report relied on the
sales data from four purportedly comparable properties to arrive at that value. (See, e.g.,
Cert. Admin. R. at 73-76, 118.) The Assessor asked the Indiana Board to increase
Abraytis’s assessment to reflect the $212,000 appraisal report’s estimate. (Cert. Admin.
R. at 119.)
In her presentation to the Indiana Board, Abraytis first argued that the appraisal
report should be given no probative value because:
1) there were other (i.e., better) sales comparables upon which
Eenshuistra could have relied;
2) Eenshuistra incorrectly reported two of his comparables’ sales
prices;
3) it was unethical for Eenshuistra to offer a land value estimate
because that was not within the scope of his appraisal; and
4) Eenshuistra incorrectly
a) reported the square footage of her basement;
b) indicated that her fireplace had a “stack”;
c) listed her garage as attached;
d) indicated that she had a partial crawl space;
e) computed the effective age of her home; and
f) reported that she had three bedrooms instead of
two.
(See Cert. Admin. R. at 120-21, 123.) Abraytis then presented a revised property record
card reflecting how she would have applied Indiana’s cost schedules and, therefore, what
she estimated to be the value of her property. 1 (Cert. Admin. R. at 63-64, 128-29.) In
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Abraytis’s revised property record card eliminated the value that was assigned to her fireplace
in its entirety, reduced the adjustment that accounted for her air conditioning, and reduced the
values assigned to her land, basement, patio, open frame porch, detached garage, and utility
shed. (See Cert. Admin. R. at 63-64.)
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her concluding statement to the Indiana Board, Abraytis explained that
[t]he tenor of the 2020-year assessment has been the amplification of
the taxpayer’s parcel, falsified compilation, and a grab bag of
unqualified actions to an unjust portrait. With an ineffective restriction,
no checks on data, no checks on validity, and no ensuring that this is
not fake, the taxpayer has more than discontentment. The
representatives who have predicated around the real estate
professions, fluffing the entire parcel is in fact criminal and should be
dealt with in a meaningful manner. There is a line and these
representatives have crossed it. There is no acceptable conferral to
continue. The goal is an accurate assessment. The taxpayer proffers
a completed assessment with the State cost schedules, the true tax
value being the same, with an observational consistent market value,
and in itself is a reasonable value.
(Cert. Admin. R. at 129.)
On October 20, 2021, the Indiana Board issued a final determination in which it
found the Assessor made a prima facie case in support of his assessment. (See Cert.
Admin. R. at 92 ¶ 1, 103 ¶ 40.) The Indiana Board concluded that while Abraytis identified
some problems with the appraisal report that detracted from its reliability, it still retained
enough probative value to support the Assessor’s assessment. 2 (Cert. Admin. R. at 92 ¶
1, 103 ¶ 39.)
Because the Assessor made a prima facie case, the Indiana Board explained that
the burden shifted to Abraytis to rebut the Assessor’s evidence with her own market-
2
For instance, the Indiana Board found that while Abraytis alleged Eenshuistra reported incorrect
sales prices for two of his comparables, she provided no evidence that corroborated her
allegation. (See Cert. Admin. R. at 102 ¶ 36.) Similarly, the Indiana Board found that Abraytis
provided no authority to support her assertion that it was unethical for Eenshuistra to allocate his
appraisal value between land and improvements. (See Cert. Admin. R. at 102 ¶ 38.) Finally, with
respect to her claim that the appraisal report mistakenly reported some of the physical
characteristics of her home (e.g., the square footage of the basement, the presence of a fireplace
“stack,” and the number of bedrooms), the Indiana Board explained that Abraytis failed to
demonstrate how any of those errors impacted even minimally the adjusted sales prices of
Eenshuistra’s comparables. (See, e.g., Cert. Admin. R. at 100-01 ¶¶ 31-32, 35.)
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based evidence. (See, e.g., Cert. Admin. R. at 103 ¶ 40.) The Indiana Board held that
she failed to meet that burden:
Abraytis primarily focused her presentation on attacking a variety of
errors the Assessor allegedly made in describing the characteristics
and condition of her home and then recalculating her assessment
using the [Department of Local Government Finance’s Assessment]
Guidelines. Even if the Assessor made errors, however, simply
attacking his methodology or attempting to strictly apply the
Guidelines herself is insufficient . . . To successfully make a case for
a lower assessment, a taxpayer must use market-based evidence to
demonstrate that [her] suggested value accurately reflects the
property’s true market value-in-use. Because Abraytis did not offer
any probative market-based evidence to support her requested value,
she failed to rebut the Assessor’s prima facie case.
(Cert. Admin. R. at 103 ¶ 40 (emphases added, internal quotation marks and citations
omitted).) As a result, the Indiana Board upheld the Assessor’s original 2020
assessment. 3 (Cert. Admin. R. at 104 ¶ 42.) The Indiana Board declined, however, to
raise Abraytis’s assessment to the $212,000 value provided in the appraisal report,
explaining that some of the identified “problems” did not make it “strong enough” to
support the increase in the assessment. (See Cert. Admin. R. at 103 ¶ 39.)
On December 6, 2021, Abraytis initiated an original tax appeal. The Court took
the matter under advisement on April 1, 2022, after the parties had completed their
briefing. Additional facts will be supplied when 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
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In its final determination, the Indiana Board explained that while it did its best to address all of
Abraytis’s claims and arguments, her “testimony and arguments at the hearing were difficult to
follow, as were the narratives she submitted with her exhibits. . . . To the extent her lack of clarity
led [the Board] to miss any salient claims or arguments, she must bear the consequences.” (Cert.
Admin. R. at 103-04 ¶ 41 n.6.)
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Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Thus, to prevail in her appeal, Abraytis
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 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)
(2023).
LAW
Prior to 2009, a taxpayer that challenged a property tax assessment always bore
the burden of proof (i.e., the burden of persuading the fact-finder that the assessment
was incorrect and the initial burden of producing evidence to demonstrate what the correct
assessment should be). See, e.g., Orange Cnty. Assessor v. Stout, 996 N.E.2d 871, 873
(Ind. Tax Ct. 2013). Beginning in 2009, however, the Legislature enacted a series of
statutory exceptions that required the assessing official, not the taxpayer, to bear the
burden of proof in certain circumstances. See, e.g., IND. CODE § 6-1.1-15-1(p) (eff. July
1, 2009) (amended 2011); IND. CODE § 6-1.1-15-17 (2011) (repealed 2012); IND. CODE §
6-1.1-15-17.2(a) (2012) (repealed 2022).
The statutory exception that applied to this appeal stated that if an assessing
official increased a taxpayer’s property assessment by more than 5% from one year to
the next, the assessing official “making the assessment ha[d] the burden of proving that
the assessment [was] correct in any review or appeal under this chapter and in any
appeals taken to the Indiana board of tax review or to the Indiana tax court.” IND. CODE §
6-1.1-15-17.2(a)-(b) (2020) (repealed 2022). That statutory exception also stated that
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[i]f the gross assessed value of real property for an assessment date
that follows the latest assessment date that was the subject of an
appeal described in this subsection is increased above the gross
assessed value of the real property for the latest assessment date
covered by the appeal, regardless of the amount of the increase, the
county assessor or township assessor (if any) making the assessment
has the burden of proving the assessment is correct. 4
I.C. § 6-1.1-15-17.2(d).
ANALYSIS
On appeal, Abraytis seeks reversal of the Indiana Board’s final determination.
(See, e.g., Appellant’s Br. (“Pet’r Br.”) at 5 (stating that “[t]he 2020 Tax Year Assessment
is in Contempt of Court”).) She has not demonstrated, however, that the Indiana Board’s
final determination is erroneous.
At the administrative hearing, Abraytis presented into evidence her revised
property record card showing how the Assessor should have applied Indiana’s cost
schedules and thus what he should have determined the assessed value of her property
should be. Unpersuaded, the Indiana Board explained that Abraytis needed to, instead,
present market-based evidence to support her value. (See Cert. Admin. R. at 103 ¶ 40.)
To merit reversal now on appeal, Abraytis must persuade the Court that the Indiana
Board’s conclusion was in error. See I.C. § 33-26-6-6(e)(1)-(5). But, just as she failed to
present cogent reasoning and legal authority to the Indiana Board in support of the
4On December 13, 2021, this Court issued an opinion regarding the meaning of the word “correct”
as used in Indiana Code § 6-1.1-15-17.2. See Southlake Indiana, LLC v. Lake Cnty. Assessor,
181 N.E.3d 484, 488-89 (Ind. Tax Ct. 2021), review denied. The Indiana Supreme Court denied
review on that case on June 28, 2022, almost three months after this Court took Abraytis’s case
under advisement. See Southlake Indiana, LLC v. Lake Cnty. Assessor, 190 N.E.3d 922 (Ind.
2022). Neither Abraytis nor the Assessor sought leave of the Court to address the impact of the
Southlake decision on their case and as a result, the Court will not invent an argument on their
behalf. See, e.g., Lowe’s Home Centers, Inc. v. Monroe Cnty. Assessor, 160 N.E.3d 263, 273-
74 (Ind. Tax Ct. 2020) (explaining that the onus is on the parties, not on the Court, to
make cogent arguments).
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changes to her property record card, she failed to clearly support her reasoning to the
Court. (Compare Cert. Admin. R. at 22-62, 123-29 with Pet’r Br.)
Indeed, most of Abraytis’s reasons for challenging the final determination are
unclear. For instance, she asserts in her written brief that
[i]n ordinary prudence in having ample time the assessor making no
correction is not only aware but is telling of the assessor in deliberate
fraud. Both the refund calculations and the 2020 assessment land
valuation the taxpayer has not seen to fruition of the irrevocable
judicial process in effect.
(Pet’r Br. at 9 (citation omitted).) She later asserts that “[t]he objected analysis from the
Board are to the appraisal in so much that it is seemingly [the Assessor’s] defense. That
while not testimony in the hearing effecting the petitioner to a tier of corruption of divorcing
from the judicial process.” (Pet’r Br. at 21.) Moreover, Abraytis cites a plethora of statutes
in her brief, but she provides no analysis of how or why the statutes cited apply to her
case. (See Pet’r Br.)
By failing to provide the Court with cogent reasoning supported by legal authority,
Abraytis has waived this Court’s review of her claims. See, e.g., Lowe’s Home Centers,
Inc. v. Monroe Cnty. Assessor, 160 N.E.3d 263, 273-74 (Ind. Tax Ct. 2020) (explaining
that the onus is on the parties, not on the Court, to make cogent arguments); Crystal
Flash Petroleum, LLC v. Indiana Dep’t of State Revenue, 45 N.E.3d 882, 886 n.7 (Ind.
Tax Ct. 2015) (indicating that the Court will not resolve an issue when its proponent fails
to provide sufficient legal analysis); Scopelite v. Indiana Dep’t of Local Gov’t Fin., 939
N.E.2d 1138, 1145 (Ind. Tax Ct. 2010) (explaining that when a litigant fails to provide any
citations to evidence contained in the certified administrative record as factual support for
his argument, the argument is waived as the Court is not required to search the
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administrative record to make his case for him); U.S. Fid. & Guar. Ins. Co. v. Hartson-
Kennedy Cabinet Top. Co., 857 N.E.2d 1033, 1038 (Ind. Ct. App. 2006) (stating that when
a party presents no cogent argument to support its assertion, the assertion is waived).
See also Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004) (explaining
that pro se litigants are held to the same standard as legal counsel; thus, poorly
developed, non-cogent arguments are waived). Accordingly, she has not demonstrated
to the Court that she is entitled to relief.
CONCLUSION
Abraytis has not met her burden to show that the Indiana Board’s final
determination is erroneous. Accordingly, the Indiana Board’s final determination is
AFFIRMED.
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