James R. & Pamela A. Kemper v. Dept. of Local Government Finance

PETITIONERS PRO SE:
JAMES R. KEMPER
PAMELA ANN KEMPER
Indianapolis, IN
 
ATTORNEYS FOR THE RESPONDENT:
STEVE CARTER
ATTORNEY GENERAL OF INDIANA
Indianapolis, IN
 
LINDA I. VILLEGAS
DEPUTY ATTORNEY GENERAL
Indianapolis, IN _____________________________________________________________________
IN THE INDIANA TAX COURT _____________________________________________________________________

JAMES R. KEMPER & PAMELA ANN ) KEMPER, ) ) Petitioners, ) ) v. ) Cause No. 49T10-9911-TA-214 ) DEPARTMENT OF LOCAL ) GOVERNMENT FINANCE, See footnote         )
                )
    Respondent.            )    
                                    
 
ON APPEAL FROM A FINAL DETERMINATION
OF THE STATE BOARD OF TAX COMMISSIONERS
                                 _____
 
NOT FOR PUBLICATION
May 27, 2003
FISHER, J.
James R. Kemper and Pamela Ann Kemper appeal the final determination of the State Board of Tax Commissioners (State Board) valuing their real property for the March 1, 1995 assessment. The sole issue is whether the State Board erred in applying a neighborhood desirability rating of "good" to the Kempers' property. See footnote For the reasons stated below, the Court AFFIRMS the State Board's final determination.
FACTS AND PROCEDURAL HISTORY
The Kempers own land and a residential improvement at 6175 Rucker Road in Lawrence Township, Marion County, Indiana. For the 1995 assessment, the Kempers' property was assessed with a neighborhood desirability rating of "good." The Kempers appealed their assessment to the Marion County Board of Review (BOR), which denied them relief.
The Kempers subsequently filed a Form 131 Petition for Review of Assessment (131 Petition) with the State Board, challenging their neighborhood desirability rating. The State Board held a hearing and, on October 29, 1999, issued a final determination, making no change to the Kempers' neighborhood desirability rating.
On November 18, 1999, the Kempers initiated an original tax appeal. On November 13, 2000, the Court held a trial. Additional facts will be supplied as necessary.
ANALYSIS AND OPINION
Standard of Review
This Court gives great deference to the final determinations of the State Board when it acts within the scope of its authority. Thousand Trails, Inc. v. State Bd. of Tax Comm'rs, 757 N.E.2d 1072, 1075 (Ind. Tax Ct. 2001). This Court will reverse a final determination of the State Board only when its findings are unsupported by substantial evidence, arbitrary, capricious, constitute an abuse of discretion, or exceed statutory authority. Id.
Furthermore, a taxpayer who appeals to this Court from a State Board final determination bears the burden of showing that the final determination was invalid. Id. The taxpayer must present a prima facie case by submitting probative evidence, i.e., evidence sufficient to establish a given fact that, if not contradicted, will remain sufficient. Id. Once the taxpayer presents a prima facie case, the burden shifts to the State Board to rebut the taxpayer's evidence and support its findings with substantial evidence. Id.
 
Discussion
The sole issue is whether the State Board erred in applying a neighborhood desirability rating of "good" to the Kempers' property. The Kempers argue that the condition of Rucker Road militates against a "good" rating for their neighborhood. The State Board, on the other hand, argues that the Kempers failed to submit any probative evidence to support their claim. The State Board is correct.
Under the State Board's rules, neighborhood desirability factors into calculating physical depreciation for residential improvements. Ind. Admin. Code tit. 50, r. 2.2-7-9(c) (1996). It constitutes "a composite judgment of the overall desirability based on . . . the extent of residential benefits arising from the location of the dwelling." Ind. Admin. Code tit. 50, r. 2.2-7-7.1(f)(7) (1996). "Accordingly, an evaluation of neighborhood desirability looks beyond the improvement itself to external features of the property's location that may affect its value." Corey v. State Bd. of Tax Comm'rs, 674 N.E.2d 1062, 1065 (Ind. Tax Ct. 1997). "The rating level describes the balance between desirable and undesirable factors in the improvement's location." Id. In striking this balance, location of a parcel is simply the beginning of the analysis, as land values "may deviate substantially throughout a geographic area." See Ind. Admin. Code tit. 50, r. 2.2-4-13(c) (1996). "The boundaries of the geographic area and the characteristics of the area determine the amount of variation in value." Id.
The State Board's rules note that "[i]t is impossible to create a precise formula that measures every variable of location and converts those variables into a precise value." Id. Nevertheless, the State Board established a range of neighborhood desirability ratings with guidelines as to their application to residential parcels. Id. The Kempers' neighborhood desirability rating was "good," which the State Board's rules define as an "attractive and desirable area." 50 IAC 2.2-7-7.1(f)(7)(C). More specifically, a "good" rating "indicates the location is pleasant. Generally, this location is an improving area with good access to shopping, schools, and major roads. This location may be in close proximity to recreational facilities." 50 IAC 2.2-4-13(c)(3).
The Kempers allege that their neighborhood desirability rating should be "average." The State Board's rules define "average" as "an average area." 50 IAC 2.2-7-7.1(f)(7)(D). Specifically, an "average" rating "indicates the location is typical. Generally, this location is a static area with little or no evidence of new development. The distance to shopping, schools, and major roads is acceptable. The average location is neither particularly attractive nor unattractive. It has some characteristics that make it attractive and desirable, but these characteristics may be offset by other which make it less desirable." 50 IAC 2.2-4-13(c)(4).
The Kempers bear the burden of proving that their neighborhood desirability rating is incorrect. Corey, 674 N.E.2d at 106566. Mr. Kemper testified:
Rucker Road is an interconnect from Highway 37, now called Binford Boulevard, and T's in down at Fall Creek Road some two blocks south of the property. The Road is extremely hilly and at times your vision of oncoming cars is even blocked, and in a lighted situation with headlights at night there are blind spots of [sic] the oncoming car[s]. . . . [T]he grade

school is some three miles distant, [and] the bus line is a mile distant. [Rucker Road] is a narrow, two-lane road, no curbs, [and] no sidewalks[.]
 
(Trial Tr. at 78, 13.) See footnote
The Kempers needed to submit sufficient evidence of undesirable features to show that, on balance, the area in which they live is not attractive, desirable, or pleasant as defined by the State Board's rules. See 50 IAC 2.2-4-13(c)(3); Corey, 674 N.E.2d at 1065. Mr. Kemper's testimony merely shows that he lives near a narrow, hilly road, which is not sufficient to tip the balance away from the State Board's neighborhood desirability rating of "good." Indeed, nothing in Mr. Kemper's testimony raises a doubt as to whether the State Board correctly determined that his neighborhood is "an improving area with good access to shopping, schools, and major roads." See footnote See 50 IAC 2.2-4-13(c)(3). See also Corey, 674 N.E.2d at 106566 (holding that taxpayers have the burden of showing that their neighborhood desirability rating is incorrect). Consequently, the Kempers have not submitted probative evidence showing that the State Board erred when it assessed their property with a neighborhood desirability rating of "good." Because the Kempers have not submitted probative evidence, they have not made a prima facie case. Accordingly, the Court AFFIRMS the State Board's final determination.
CONCLUSION
For the aforementioned reasons, the Court AFFIRMS the State Board's final determination on the Kempers' neighborhood desirability rating.

Footnote: The State Board of Tax Commissioners (State Board) was originally the Respondent in this appeal. However, the Legislature abolished the State Board as of December 31, 2001. 2001 Ind. Acts 198 § 119(b)(2). Effective January 1, 2002, the Legislature created the Department of Local Government Finance (DLGF) and the Indiana Board of Tax Review (Indiana Board). Ind. Code §§ 6-1.1-30-1.1; 6-1.5-1-3 (West Supp. 2001); 2001 Ind. Acts 198 §§ 66, 95. Pursuant to Indiana Code § 6-1.5-5-8, the DLGF is substituted for the State Board in appeals from final determinations of the State Board that were issued before January 1, 2002. Ind. Code § 6-1.5-5-8 (West Supp. 2001) (eff. 2002); 2001 Ind. Acts 198 § 95. Nevertheless, the law in effect prior to January 1, 2002 applies to these appeals. I.C. § 6-1.5-5-8. See also 2001 Ind. Acts 198 § 117. Although the DLGF has been substituted as the Respondent, this Court will still reference the State Board throughout this opinion.
Footnote: The Kempers also claim that the method of assessing their land varies from year to year from the front-foot method to the acreage method. They ask that the method be consistent from year to year. Because the Kempers never raised this issue before the State Board, the Court is precluded from reviewing it. See Fleet Supply, Inc. v. State Bd. of Tax Comm'rs, 740 N.E.2d 598, 599 n.1 (Ind. Tax Ct. 2000); Whitley Prods. v. State Bd. of Tax Comm'rs, 704 N.E.2d 1113, 1119 (Ind. Tax Ct. 1998), review denied.
Footnote: At trial, the Kempers attempted to introduce evidence that they never presented to the State Board. The Court's scope of review, however, precludes it from considering evidence not presented to the State Board. Fleet Supply, 740 N.E.2d at 599 n.1.
Footnote: Just because a road is hilly and narrow does not necessarily mean that it provides poor access. Cf. Hamm v. Dep't of Local Gov't Finance, 2003 WL 1987147 **34 (finding that a poorly maintained, one-lane county road that was impassible during bad weather was sufficient evidence that the taxpayer lacked good access to major metropolitan areas).