ATTORNEYS FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
PAUL K. OGDEN GREGORY F. ZOELLER
OGDEN LAW FIRM ATTORNEY GENERAL OF INDIANA
Indianapolis, IN EVAN W. BARTEL
JONATHAN R. SICHTERMANN
JEFFREY R. COX DEPUTY ATTORNEYS GENERAL
J.R. COX LAW, LLC Indianapolis, IN
Indianapolis, IN
_____________________________________________________________________
IN THE
INDIANA TAX COURT
_____________________________________________________________________
May 12 2015, 2:27 pm
PROPERTY DEVELOPMENT )
COMPANY FOUR, LLC, )
)
Petitioner, )
)
v. ) Cause No. 49T10-1401-TA-3
)
GRANT COUNTY ASSESSOR, )
)
Respondent. )
_____________________________________________________________________
ON APPEAL FROM THE FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
May 12, 2015
WENTWORTH, J.
Property Development Company Four, LLC appeals the Indiana Board of Tax
Review’s final determination that upheld the Grant County Assessor’s assessments of
its real property for the 2004, 2005, and 2006 tax years. The Court finds that the
Indiana Board’s final determination should be affirmed in part and reversed in part.
FACTS AND PROCEDURAL HISTORY
Property Development builds homes for the disabled. (See Cert. Admin. R. at 8,
183.) In 2003, Property Development purchased a parcel of land in the Hickory Hills
Subdivision, Marion, Indiana (“the Eastway Drive Property”) and another parcel of land
in the Meadows East Subdivision, Marion, Indiana (“the Aspen Court Property”). (See
Cert. Admin. R. at 83, 94, 120, 124-25.) These two properties are the subject of this
appeal.
At the time of purchase, the subject properties were vacant and assessed as
agricultural land. (See Cert. Admin. R. at 120, 124-25, 272.) After obtaining the
necessary building permits, Property Development built a home on each parcel. (See
Cert. Admin. R. at 84, 184, 186.) The Assessor did not assess the subject properties at
that time, however, because she did receive the building permits and, therefore, did not
have notice that construction had even begun. (See Cert. Admin. R. at 152, 265-66.)
On July 11, 2006, the Assessor assessed the Eastway Drive Property for the
2004 and 2005 tax years. (See Cert. Admin. R. at 124-27.) That same day, the
Assessor mailed two “Reports of Assessment for Omitted or Undervalued Property
Assessment and Assessment Penalties” (Form 122s) to Property Development, which
provided that the property’s assessments had been increased from $16,800 to
$107,300 for the 2004 and 2005 tax years. (See Cert. Admin. R. at 126-27.)
The following year, the Assessor assessed the Aspen Court Property for the
2004, 2005, and 2006 tax years. (See Cert. Admin. R. at 120-23.) On July 30, 2007,
the Assessor mailed three Form 122s to Coronado Ridge Development Corporation, the
prior owner of the Aspen Court Property,1 which indicated that its assessments had
1
The Assessor explained that her records listed Coronado Ridge as the owner of the Aspen
Court Property because county officials failed to provide her with the information that the
property was transferred from Coronado Ridge to Property Development and because the Form
122s were not returned as undeliverable. (See Cert. Admin. R. at 152, 154, 248-49, 262-65.)
2
been increased from $200 to $87,800 for the 2004, 2005, and 2006 tax years. (See
Cert. Admin. R. at 121-23.) Although Coronado Ridge typically received and forwarded
the tax bills for the Aspen Court Property to Property Development’s president, it did not
forward the Form 122s to Property Development. (See Cert. Admin. R. at 44, 47, 84.)
In the years following the assessments, Property Development paid the tax
liabilities on its properties as they became due. (See Cert. Admin. R. at 43, 184, 186.)
Not until 2010, however, did the Grant County Treasurer attempt for the first time to
recover from Property Development the additional tax liabilities, penalties, and fees
arising from the 2004, 2005, and 2006 assessments of the subject properties. (See
Cert. Admin. R. at 43-44, 84-85, 86-92, 98-115.)
Property Development subsequently appealed the assessments, first to the
Grant County Property Tax Assessment Board of Appeals and then to the Indiana
Board. On September 12, 2013, the Indiana Board held a hearing during which
Property Development claimed that the assessments were invalid because they
conflicted with Indiana Code § 6-1.1-4-12 and because the Assessor failed to provide
proper notice. The Assessor, on the other hand, argued that Indiana Code § 6-1.1-9-1
et seq. authorized the assessments and that Property Development’s claim of
insufficient notice lacked merit. On December 10, 2013, the Indiana Board issued a
final determination upholding the assessments of the Eastway Drive Property as well as
the 2005 and 2006 assessments of the Aspen Court Property under Indiana Code § 6-
1.1-9-1 et seq. (See Cert. Admin. R. at 39-40.) The Indiana Board determined,
however, that the 2004 assessment of the Aspen Court Property had been untimely and
was therefore invalid. (See Cert. Admin. R. at 39-40.) Moreover, the Indiana Board
3
rejected Property Development’s claim of insufficient notice.2 (See Cert. Admin. R. at
40-42.)
On January 23, 2014, Property Development initiated this original tax appeal.
The Court heard oral argument on June 19, 2014. Additional facts will be supplied as
necessary.
STANDARD OF REVIEW
The party seeking to overturn a final determination of the Indiana Board bears
the burden to demonstrate that it is invalid. Hubler Realty Co. v. Hendricks Cnty.
Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct. 2010). The Court will reverse a final
determination of the Indiana Board 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 or short of statutory jurisdiction, authority, or limitations; without
observance of procedure required by law; or unsupported by substantial or reliable
evidence. IND. CODE § 33-26-6-6(e)(1)-(5) (2015).
ANALYSIS
Property Development has asked this Court to reverse the final determination of
the Indiana Board for two main reasons. First, Property Development contends that the
Indiana Board misapplied the law when it upheld the assessments. Second, Property
Development asserts that the Indiana Board erred in concluding that Property
2
The Indiana Board also determined that the burden-shifting rule set forth in Indiana Code § 6-
1.1-15-17.2 did not apply because Property Development had not challenged the assessed
values of the subject properties. (See Cert. Admin. R. at 38, 83-84.)
4
Development received proper notice of the assessments.3
I.
Property Development asserts that the Indiana Board erred in determining that
the assessments of the subject properties were authorized under Indiana Code § 6-1.1-
9-1 et seq. because a more specific statute, Indiana Code § 6-1.1-4-12, applied instead.
(See Pet’r Br. at 13-16; Oral Arg. Tr. at 54-56.) Property Development explains that
while Indiana Code § 6-1.1-9-4 applies generally to omitted or undervalued real property
assessments, Indiana Code § 6-1.1-4-12 applies specifically to subdivision property
assessments. (See Pet’r Br. at 13-16.) Property Development further explains that if its
properties had been assessed under Indiana Code § 6-1.1-4-12, the statute’s plain
terms would have compelled her to apply the assessments prospectively only, not
retroactively. (See Pet’r Br. at 15-16; Pet’r Reply Br. at 8-9.)
It has long been held that “a more detailed and specific statute prevails over a
more general statute [that addresses the same subject matter] when the two conflict.”
State ex rel. Hatcher v. Lake Sup. Ct., Room Three, 500 N.E.2d 737, 739 (Ind. 1986).
Indiana Code § 6-1.1-9-4 and Indiana Code § 6-1.1-4-12 both authorize the assessment
of property. When the subject properties were assessed in 2006 and 2007, Indiana
Code § 6-1.1-9-4 provided that “property may be assessed, or its assessed value
increased, for a prior year under this chapter only if the notice required by [Indiana Code
§ 6-1.1-9-1] is given within three (3) years after the assessment date for that prior year.”
IND. CODE § 6-1.1-9-4(a) (2006) (emphasis added). By incorporating the notice
requirement in Indiana Code § 6-1.1-9-1, Indiana Code § 6-1.1-9-4 applies to all omitted
3
Property Development has also claimed that the imposition of penalties and fees was
improper because the tax bills were not timely mailed. (See Pet’r Br. at 12.) The Court,
however, does not address this issue due to its resolution of this case.
5
or undervalued real property assessments and authorizes their limited retroactive
assessment. See I.C. § 6-1.1-9-4(a); IND. CODE § 6-1.1-9-1 (2006) (amended 2007). In
contrast, Indiana Code § 6-1.1-4-12 provided that when
(1) land assessed on an acreage basis is subdivided into lots; or (2)
land is rezoned for, or put to, a different use; the land shall be
reassessed on the basis of its new classification. []If improvements
are added to real property, the improvements shall be assessed.
[]An assessment or reassessment made under this section is
effective on the next assessment date.
IND. CODE § 6-1.1-4-12(d)-(f) (2006) (amended 2013). Thus, this statute authorizes the
assessment of certain property (e.g., agricultural land) when an objective event
signaling the commencement of commercial development occurs. See Hamilton Cnty.
Assessor v. Allisonville Rd. Dev., LLC, 988 N.E.2d 820, 823-24 (Ind. Tax Ct. 2013),
review denied.
The application of each of these statutes is triggered by different factual
circumstances, and neither statute indicates that the application of one precludes an
assessment under the other. See I.C. §§ 6-1.1-4-12, -9-4; see also, e.g., Indiana Dep’t
of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994) (explaining that
the plain and obvious meaning of an unambiguous statute may not be enlarged or
restricted). Consequently, comparing Indiana Code § 6-1.1-4-12 and Indiana Code § 6-
1.1-9-4 does not indicate that the former is more specific than the latter, but instead,
merely authorizes the assessment of property based on different factual circumstances.
The facts of this case reveal that Property Development constructed a home on
each of the subject properties in 2003, but the Assessor did not assess the Eastway
Drive Property until 2006 and the Aspen Court Property until 2007. The Assessor then
applied each assessment retroactively according to Indiana Code § 6-1.1-9-4 because
6
the improvements were omitted from the assessment rolls post-construction. See I.C. §
6-1.1-9-4(a) (permitting retroactive assessments of real property in instances where the
property was undervalued on, or omitted from, the assessment rolls or tax duplicates).
The fact that these properties could have been assessed when they were subdivided for
development under Indiana Code § 6-1.1-4-12 cannot preclude their retroactive
assessment, as Property Development urges, because doing so would defeat the
purpose of Indiana Code § 6-1.1-9-4. See Johnson Cnty. Farm Bureau Coop. Ass’n v.
Indiana Dep’t of State Revenue, 568 N.E.2d 578, 583-84 (Ind. Tax Ct. 1991) (explaining
that the Court will construe a statute to give effect, rather than to defeat, its purpose),
aff’d by 585 N.E.2d 1336 (Ind. 1992). Consequently, Property Development has not
shown that the Indiana Board’s final determination that upheld the assessments of the
subject properties under Indiana Code § 6-1.1-9-4 was contrary to law.
II.
Property Development also contends that the Indiana Board erred in concluding
that it had received sufficient notice of the 2004 and 2005 Eastway Drive assessments
and the 2005 and 2006 Aspen Court assessments. More specifically, Property
Development contends that the Assessor’s notice was insufficient not only because it
failed to comport with the requirements of Indiana Code § 6-1.1-9-1, but also because
the Assessor mailed the Form 122s for the Aspen Court Property to its prior owner,
Coronado Ridge, instead of Property Development.4 (See Pet’r Br. at 17-18; Pet’r
Reply Br. at 9-11; Oral Arg. Tr. at 24-28.)
The Assessor, on the other hand, offers two reasons why notice was proper.
4
Property Development also contends that the notice of the assessments failed to satisfy state
and federal due process requirements. (See, e.g., Pet’r Br. at 17.) The Court does not need to
address this contention given its disposition of the issue.
7
First, the Assessor argues that she provided Property Development with notice of the
subject properties’ assessments consistent with Indiana Code § 6-1.1-9-1 by issuing a
Form 122 for each property. (See Resp’t Br. at 14-17; Oral Arg. Tr. at 47-52.) Second,
the Assessor claims that even if she made a mistake in mailing the Form 122s, Property
Development should not benefit from that mistake because it failed to provide her with
the correct information in the first place. (See Resp’t Br. at 15; Oral Arg. Tr. at 45-47.)
When the Assessor assessed the Eastway Drive Property in 2006, the relevant
notice provision stated:
If a township assessor, county assessor, or county property tax
assessment board of appeals believes that any taxable tangible
property has been omitted from or undervalued on the assessment
rolls or the tax duplicate for any year or years, the official or board
shall give written notice under . . . IC 6-1.1-4-22 of the assessment
or the increase in assessment. The notice shall contain a general
description of the property and a statement describing the
taxpayer’s right to a preliminary conference and to a review with the
county property tax assessment board of appeals under IC 6-1.1-
15-1.
I.C. § 6-1.1-9-1 (emphasis added). Pursuant to a 2007 amendment, the last sentence
of Indiana Code § 6-1.1-9-1 was changed to read as follows: “The notice shall contain a
general description of the property and statement describing the taxpayer’s right to a
review with the county property tax assessment board of appeals under IC 6-1.1-15-1.”
IND. CODE § 6-1.1-9-1 (2007). Indiana Code § 6-1.1-4-22 stated:
If any assessing official or any county property tax assessment
board of appeals assesses or reassesses any real property under
the provisions of this article, the official or county property tax
assessment board of appeals shall give notice to the taxpayer and
the county assessor, by mail, of the amount of the assessment or
reassessment.
IND. CODE § 6-1.1-4-22(a) (2006) (amended 2008). Together, these statutes provide
8
that an assessing official must mail written notice of the assessment of omitted or
undervalued real property to a taxpayer that states 1) a general description of the
property; 2) the amount of the increased or new assessment; and 3) a statement
regarding the taxpayer’s right to review under Indiana Code § 6-1.1-15-1. See I.C. §§
6-1.1-4-22, -9-1. Indiana Code § 6-1.1-9-4 further indicates that this written notice must
be provided to the taxpayer within three years of the property’s assessment date. See
I.C. § 6-1.1-9-4(a).
The certified administrative record reveals that on July 11, 2006, the Assessor
timely mailed two Form 122s to Property Development regarding the 2004 and 2005
assessments of the Eastway Drive Property. (See Cert. Admin. R. at 126-27.) The
record also shows that on July 30, 2007, the Assessor timely mailed two Form 122s
concerning the 2005 and 2006 assessments of the Aspen Court Property to Coronado
Ridge, the prior owner of the property. (See Cert. Admin. R. at 121-23.) Each of these
Form 122s contained a description of the subject properties and a statement of the
amount of the assessments. (See, e.g., Cert. Admin. R. at 121.) None of the Form
122s, however, contained statements regarding Property Development’s rights to a
preliminary conference or review under Indiana Code § 6-1.1-15-1. (See Cert. Admin.
R. at 121-23, 126-27.) Instead, they merely contained a statement concerning the
imposition of penalties for omitted or undervalued tangible personal property. (See,
e.g., Cert. Admin. R. at 121 (stating “[a] penalty is due with an installment . . . whether
or not an appeal is filed under IC 6-1, 1-15-5 [sic] with respect to the tax due on that
installment”).) Consequently, the Form 122s do not comport with the notice
requirements of Indiana Code § 6-1.1-9-1.
9
Nonetheless, the timely mailing of an annual tax bill may itself satisfy the notice
requirements of Indiana Code § 6-1.1-9-1. See, e.g., Williams Indus. v. State Bd. of Tax
Comm’rs, 648 N.E.2d 713, 715-16 (Ind. Tax Ct. 1995). Here, however, the tax bills
were not timely issued. Notice must be given within three years of the assessment
date, but the record shows that the tax bills were not issued until 2010 - i.e., about 6
years after the 2004 assessment, 5 years after the 2005 assessments, and 4 years after
the 2006 assessment. See I.C. § 6-1.1-9-4(a) (requiring that the notice be given within
three years after the assessment date). Consequently, Property Development’s tax bills
do not satisfy the notice requirements of Indiana Code § 6-1.1-9-1 either.
CONCLUSION
While the Indiana Board correctly determined that the Assessor was authorized
to assess the subject properties under Indiana Code § 6-1.1-9-1 et seq., it erred in
determining that Property Development had received sufficient notice of those
assessments. The Court, therefore, AFFIRMS the Indiana Board’s final determination
in part, REVERSES it in part, and REMANDS the matter to the Indiana Board for action
consistent with this opinion.
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Property Development Company Four, LLC v. Grant County Assessor
Combined Opinion