Kathryn Gillette v. Brown County Assessor

ATTORNEY FOR PETITIONER: ATTORNEY FOR RESPONDENT:
STUART T. BENCH MARILYN S. MEIGHEN
BENCH LAW OFFICE ATTORNEY AT LAW
Indianapolis, IN Carmel, IN
______________________________________________________________________
IN THE FILED
Jun 07 2016, 12:42 pm
INDIANA TAX COURT CLERK
Indiana Supreme Court
______________________________________________________________________
Court of Appeals
and Tax Court
KATHRYN GILLETTE, )
)
Petitioner, )
)
v. ) Cause No. 49T10-1305-TA-00053
)
BROWN COUNTY ASSESSOR, )
)
Respondent. )
ON APPEAL FROM A FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
June 7, 2016
WENTWORTH, J.
Kathryn Gillette challenges the final determination of the Indiana Board of Tax
Review that valued her real property at $592,000 for the 2009 tax year.1 Upon review,
the Court affirms the Indiana Board’s final determination.
FACTS AND PROCEDURAL HISTORY
Gillette owns rental property on Sweetwater Lake in Nineveh, Indiana. In 2009,
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While Gillette maintains she is appealing her 2008 through 2012 assessments, her Petition for
Review to the Indiana Board and the Indiana Board’s final determination address the propriety
of her 2009 assessment alone. (Compare Pet’r V. Pet. at 3 and Pet’r Br. at 4, 7, 13 with Cert.
Admin. R. at 2-4, 18-25.) Consequently, the Court will review only Gillette’s 2009 assessment.
See IND. CODE § 33-26-6-3(b) (2016) (limiting the Court’s review to the issues raised by litigants
during the Indiana Board proceedings or the issues considered in the Indiana Board’s final
determination).
that property was assigned an assessed value of $636,500 ($102,400 for land and
$534,100 for improvements). Believing this value to be too high, Gillette appealed her
assessment first to the Brown County Property Tax Assessment Board of Appeals and
then to the Indiana Board.
On January 8, 2013, the Indiana Board conducted a hearing during which it
determined that the Brown County Assessor bore the burden of proof because Gillette’s
assessment had increased by more than 5% from 2008 to 2009. (See Cert. Admin. R.
at 99-103.) The Assessor indicated, however, she could make a prima facie case to
support the 2009 assessment and asked the Indiana Board to reinstate Gillette’s 2008
assessment of $592,000. (See Cert. Admin. R. at 113-15.)
Gillette, on the other hand, claimed that her 2008 assessment of $592,000 was
too high because her property was only worth about $440,000 in 2009. (See, e.g., Cert.
Admin. R. at 115, 142.) In support of her claim, Gillette testified that her land was worth
about $40,000 because 80% of it abutted the road instead of the lake, and as a result, it
often collected leaves and garbage. (See Cert. Admin. R. at 131-36.) Regarding the
improvements, Gillette presented her rental insurance policy declarations, which
indicated that for 2005 through 2012 the liability limits to rebuild her house were
between $275,300 to $475,215. (See Cert. Admin. R. at 68-78, 124.) Gillette also
presented two appraisals prepared for mortgage companies that valued her property at
$260,000 as of September 1, 1998 and $482,000 as of April 21, 2006. (See Cert.
Admin. R. at 40-67.) Finally, Gillette maintained that she could not sell her property for
more than $600,000 and could not rent it for $2,500 per month, which indicated that its
rental value was less than $250,000. (See, e.g., Cert. Admin. R. at 36, 81, 83, 90-94,
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122, 135-43.)
On April 5, 2013, the Indiana Board issued its final determination stating that the
Assessor had “admitted [that Gillette’s] assessment should be reduced to $592,000[,]”
the amount of the 2008 assessed value, for the 2009 tax year. (Cert. Admin. R. at 24 ¶
20.) In addition, the Indiana Board found that Gillette had “failed to make a prima facie
case for any assessed value less than that amount” because she “did not provide
substantial, probative evidence to support her claim[.]” (See Cert. Admin. R. at 22-24
¶¶ 19-20 (emphasis added).) Accordingly, the Indiana Board changed the 2009
assessed value to the prior year’s assessed value of $592,000, “consistent with other
Board final determinations where the Respondent failed to satisfy the burden imposed
by Ind[iana] Code § 6-1.1-15-17.2.” (Cert. Admin. R. at 22 ¶ 18.)
On May 20, 2013, Gillette initiated this original tax appeal. The Court heard oral
argument on June 2, 2014. 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). The Court will reverse an Indiana
Board final determination if it 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) (2016).
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ANALYSIS
On appeal, Gillette claims that the Indiana Board’s final determination must be
reversed for two alternative reasons. First, Gillette contends that the Indiana Board
erred in adopting a valuation derived from the cost approach rather than the income
approach. (See Pet’r Br. at 1, 6-14.) Alternatively, Gillette claims that the Indiana
Board erred in rejecting her entire evidentiary presentation.2 (See Pet’r Br. at 1, 12-15;
Oral Arg. Tr. at 8-10.)
I.
This Court has previously explained that Indiana assesses real property on the
basis of its market value-in-use: i.e., “the value ‘of a property for its current use, as
reflected by the utility received by the owner or a similar user, from the property[.]’”
McKeeman v. Steuben Cnty. Assessor, 10 N.E.3d 612, 614 (Ind. Tax Ct. 2014) (quoting
2002 REAL PROPERTY ASSESSMENT MANUAL (Manual) (incorporated by reference at 50
IND. ADMIN. CODE 2.3-1-2 (2002 Supp.)) at 2). See also IND. CODE § 6-1.1-31-6(c)
(2009). Although three generally accepted appraisal techniques (i.e., the cost, sales
comparison, and income approaches) may be used to appraise an individual property’s
market value-in-use, “the cost approach has historically been used in mass appraisal by
assessing officials” because “often times [they] do not have the data or time to apply all
three approaches[.]” Manual at 3; see also REAL PROPERTY ASSESSMENT GUIDELINES
FOR 2002 – VERSION A (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 & 2
(explaining how property is to be valued under the cost approach).
2
Gillette also claimed that the Brown County Property Tax Assessment Board of Appeals
(PTABOA) erred in basing her assessment on her property’s listing price because her home
never sold. (See Pet’r Br. at 8-9, 11, 13.) The Tax Court, however, only reviews the actions of
the Indiana Board and not the PTABOA. See Ind. Tax Court Rule 2.
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Gillette contends that the Indiana Board’s final determination is contrary to law
and must be reversed because during the Indiana Board’s proceedings she established
that she owned a rental property. (See Pet’r Br. at 7.) As a result, Gillette argues that
the Indiana Board was required to adopt a valuation derived from a variation of the
income approach, i.e., the gross rent multiplier, rather than a valuation derived from the
Assessor’s application of the cost approach. (See Pet’r Br. at 8-11.)
To support a reduction in her property’s assessed value, Gillette had the burden
to provide the Indiana Board with market-based evidence (e.g., sales data, appraisals,
or actual construction costs) that demonstrates that the assessment does not provide
an accurate reflection of the property’s market value-in-use. Manual at 5. Gillette’s
argument that the Indiana Board erred in adopting a valuation derived from the cost
approach rather than one derived from the income approach, however, attacks merely
the methodology used to determine the 2008 assessed value and does not address the
key issue – whether $592,000 was a reasonable reflection of the property’s market
value-in-use. Accordingly, the Court finds no basis for reversing the Indiana Board’s
final determination with respect to this issue. See P/A Builders & Developers, LLC v.
Jennings Cnty. Assessor, 842 N.E.2d 899, 900-01 (Ind. Tax Ct. 2006) (providing that
Indiana’s current assessment system focuses on whether the assessed value is actually
correct, not on methodology), review denied.
II.
Gillette has also claimed that the Indiana Board’s final determination must be
reversed because it improperly rejected her entire evidentiary presentation. (See, e.g.,
Pet’r Br. at 12-15.) Gillette explained that she presented market-based evidence to the
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Indiana Board that included her rental insurance policy declarations from 2005 to 2012,
a 1998 appraisal, and a 2006 appraisal that established the value of her rental property
as $440,000 for the 2009 tax year. (See Pet’r Br. at 12-15.) Gillette also testified that
she was unable to rent her house for $2,500 or sell it for more than $600,000. (See
Pet’r Br. at 11.) Nonetheless, the Court finds this evidence is not probative, as did the
Indiana Board.
Indiana’s assessment regulations require the 2009 assessed value of property to
reflect its value as of January 1, 2008. See 50 IND. ADMIN. CODE 21-3-3(b) (2009) (see
http://www.in.gov/legislative/iac/) (explaining that prior to 2010, a property’s March 1
assessment was to reflect its market value-in-use on January 1 of the preceding year)
(repealed 2010). Consequently, Gillette was required to relate her evidence to the
January 1, 2008 valuation date. See, e.g., Monroe Cnty. Assessor v. Kooshtard Prop. I,
LLC, 38 N.E.3d 754, 757 (Ind. Tax Ct. 2015). The certified administrative record
reveals, however, that Gillette did not do so. (See generally Cert. Admin. R. at 96-182.)
As a result, the Court cannot find that the Indiana Board erred in finding that Gillette’s
entire evidentiary presentation failed to make a prima facie case for any assessed value
less than $592,000.
CONCLUSION
For the above stated reasons, the Indiana Board’s final determination in this
matter is AFFIRMED.
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