Waterford Development Co., Inc. v. Noblesville Township Assessor, et. al.

ATTORNEY FOR PETITIONER:
TIMOTHY J. VRANA
SHARPNACK BIGLEY LLP
Columbus, IN
ATTORNEYS FOR RESPONDENTS:
STEVE CARTER
ATTORNEY GENERAL OF INDIANA
Indianapolis, IN
 
JOEL SCHIFF
DEPUTY ATTORNEY GENERAL
Indianapolis, IN

_____________________________________________________________________
IN THE INDIANA TAX COURT _____________________________________________________________________

WATERFORD DEVELOPMENT CO., INC., ) ) Petitioner, ) ) v. ) Cause No. 49T10-0205-TA-47 ) NOBLESVILLE TOWNSHIP ASSESSOR, ) HAMILTON COUNTY ASSESSOR, and ) HAMILTON COUNTY AUDITOR, ) ) Respondents . )                                     
 
ON APPEAL FROM TWO FINAL DETERMINATIONS
OF THE INDIANA BOARD OF TAX REVIEW
                                 _____
 
NOT FOR PUBLICATION
July 10, 2003
FISHER, J.
Waterford Development Co., Inc., (Waterford), appeals two final determinations of the Indiana Board of Tax Review (Indiana Board) dismissing its Petitions for Correction of Error (133 Petitions) for the 19972001 tax years (years at issue). The issue is whether the Indiana Board erred in dismissing those petitions. For the following reasons, the Court AFFIRMS the Indiana Board's final determination.
FACTS AND PROCEDURAL HISTORY
Waterford owns three commercial improvements in Noblesville Township, Hamilton County, Indiana. For the years at issue, the improvements were assessed using the General Commercial Mercantile (GCM) pricing schedule pursuant to Indiana's assessment rules. See footnote In May 2001, Waterford filed eight 133 Petitions with the Hamilton County Auditor, arguing that because its improvements were "kit buildings,"See footnote the General Commercial Kit (GCK) pricing scheduleSee footnote should have been used to assess them as opposed to the GCM schedule. The Hamilton County Property Tax Assessment Board of Appeals (PTABOA) denied Waterford's 133 Petitions in July 2001.
On August 1, 2001, Waterford appealed the PTABOA's final determinations to the Indiana Board, which issued two final determinations on March 26, 2002, denying Waterford any relief. Specifically, the Indiana Board held that because choosing the applicable pricing schedule requires an assessor's subjective determination, Waterford could not bring its claim in a 133 Petition.
On May 8, 2002, Waterford initiated an original tax appeal. On June 6, 2003, the parties presented oral arguments. Additional facts will be supplied as needed.
ANALYSIS AND OPINION
Standard of Review
This Court gives great deference to final determinations of the Indiana Board when it acts within the scope of its authority. Wittenberg Lutheran Vill. Endowment Corp. v. Lake County Prop. Tax Assessment Bd. of Appeals, 782 N.E.2d 483, 486 (Ind. Tax Ct. 2003), review denied. Consequently, the Court will reverse a final determination of the Indiana Board only 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 statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; or unsupported by substantial or reliable evidence. Id. (citing Ind. Code § 33-3-5-14.8(e)(1)(5) (Supp. 2001) (quotation marks omitted)).
Discussion
The issue is whether the Indiana Board erred when it determined that Waterford's 133 Petitions were an inappropriate method by which to appeal the pricing schedule used to assess its improvements. Waterford argues that it should be allowed to bring its claim in a 133 Petition because the decision whether or not to apply the GCK pricing schedule does not require a subjective determination. Waterford, however, is incorrect.
A taxpayer may file a 133 Petition to request a correction of errors that resulted from one or more of the following reasons:
(1)    The description of the real property was in error.

(2)    The assessment was against the wrong person.

(3)    Taxes on the same property were charged more than one (1) time in the same year.

(4)    There was a mathematical error in computing the taxes or penalties on the taxes.

(5)    There was an error in carrying delinquent taxes forward from one (1) tax duplicate to another.

(6)    The taxes, as a matter of law, were illegal.

(7)    There was a mathematical error in computing an assessment.

(8)    Through an error of omission by any state or county officer the taxpayer was not given credit for an exemption or deduction permitted by law.
 
Ind. Code § 6-1.1-15-12(a) (1998). This Court has held that a taxpayer may file a 133 Petition to correct only objective errors in an assessment; accordingly, a taxpayer is prohibited from using a 133 Petition to challenge any part of an assessment that implicates a tax official's lawful exercise of subjective discretion. U.S. Steel Corp. v. Lake County PTABOA et al., 785 N.E.2d 1209, 1215 (Ind. Tax. Ct. 2003). In a decision handed down concurrently with this decision, the Court held that the decision to apply pricing schedules, including the GCK pricing schedule, "ultimately turns on judgment calls." O'Neal Steel v. Vanderburgh County PTABOA et al., no. 49T10-0204-TA-42, slip op. at 5 (Ind. Tax Ct. July 10, 2003). For the reasons stated in O'Neal Steel, the decision to apply the GCK pricing schedule is subjective and cannot be challenged in a 133 Petition. Id. Consequently, Waterford cannot use a 133 Petition to challenge the assessor's choice of pricing schedule. See footnote See id.
CONCLUSION
For the aforementioned reasons, the Court AFFIRMS the Indiana Board's final determination.

Footnote: See Ind. Admin. Code tit. 50, r. 2.2-11-6 (Sched. A.1) (1996).
Footnote: "Generally, kit buildings are made of light[-]weight and inexpensive materials and are fabricated at central manufacturing facilities and shipped to the construction site ready for fast and efficient assembly." Hamstra Builders, Inc. v. Dep't of Local Gov't Fin., 783 N.E.2d 387, 390 (Ind. Tax Ct. 2003) (internal quotation marks omitted).
Footnote: See Ind. Admin. Code tit. 50, r. 2.2-11-6 (Sched. A.4) (1996).
Footnote: In the alternative, Waterford argues that State Board Instructional Bulletin 92-1 (Instructional Bulletin 92-1) mandates the use of the 133 Petition to appeal the assessment of a kit building. However, Instructional Bulletin 92-1, which did mandate the use of 133 Petitions in the case of kit building assessments for the 1991 assessment year, became a nullity as of the 1995 general reassessment. O'Neal Steel v. Vanderburgh County PTABOA et al., no. 49T10-0204-TA-42, slip op. at 8 (Ind. Tax Ct. July 10, 2003). Consequently, Southworth cannot rely on Instructional Bulletin 92-1.
Waterford also argues that this Court's holding in Barth, Inc. v. State Bd. of Tax Comm'rs, 705 N.E.2d 1084 (Ind. Tax. Ct. 1998) (Barth II) supports the proposition that the decision to use the GCK pricing schedule is an objective determination, not a subjective one. Nevertheless, the Court has made clear that it regards the use of the 133 Petition in the case of kit buildings to be in conflict with its case law on the use of the 133 Petition. See, e.g., Barth, Inc. v. State Bd. of Tax Comm'rs, 699 N.E.2d 800, 804 n.10 (Ind. Tax. Ct. 1998) (Barth I). Accordingly, Barth II is limited to cases that arose before the 1995 general reassessment. For cases arising from the 1995 general reassessment and thereafter, the Court's decision in O'Neal Steel controls. See O'Neal Steel v. Vanderburgh County PTABOA et al., no. 49T10-0204-TA-42, slip op. (Ind. Tax Ct. July 10, 2003)