Square 74 Associates LLC v. Marion County Assessor

ATTORNEY FOR PETITIONER: ATTORNEY FOR RESPONDENT:
BETH H. HENKEL JESSICA R. GASTINEAU
LAW OFFICE OF BETH HENKEL LLC SPECIAL COUNSEL – TAX LITIGATION
Indianapolis, IN OFFICE OF CORPORATION COUNSEL
Indianapolis, IN

FILED
IN THE Dec 03 2019, 1:57 pm

INDIANA TAX COURT CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

SQUARE 74 ASSOCIATES LLC, )
)
Petitioner, )
)
v. ) Cause No. 19T-TA-00020
)
MARION COUNTY ASSESSOR, )
)
Respondent. )

ON APPEAL FROM A FINAL DETERMINATION OF
THE INDIANA BOARD OF TAX REVIEW

FOR PUBLICATION
December 3, 2019

WENTWORTH, J.

Square 74 Associates LLC has challenged the Indiana Board of Tax Review’s final

determination that dismissed its petitions for correction of an error for the 2008 through

2011 tax years. Upon review, the Court affirms the Indiana Board’s final determination.

FACTS AND PROCEDURAL HISTORY

During the years at issue, the Department of Metropolitan Development of the

Consolidated City of Indianapolis, acting for and on behalf of the Metropolitan

Development Commission of Marion County, Indiana in its capacity as the

Redevelopment Commission of the City of Indianapolis, Indiana (collectively, the “City of
Indianapolis”) owned a 7-story 209,888 square foot public parking garage in downtown

Indianapolis. (See, e.g., Cert. Admin. R. at 171, 212-15.) The City of Indianapolis leased

a portion of the ground floor, consisting of five separate tenant spaces totaling

approximately 31,000 square feet, to Square 74 for the operation of five restaurants. (See

Cert. Admin. R. at 171-206, 216-31.)

For purposes of assessing the properties, the parking garage and the tenant

spaces were each assigned distinct parcel numbers. (See Cert. Admin. R. at 212-31.)

See also 50 IND. ADMIN. CODE 1-3-3 (2008) (requiring assessing officials to create

permanent assessment records for purposes of assessing improvements on leased

ground).) The Marion County Assessor assessed the tenant spaces as follows: Parcel

1 was assessed at $633,800 ($284,500 for land and $349,300 for improvements) for the

2008 tax year and $626,700 ($284,500 for land and $342,200 for improvements) for the

2009 through 2011 tax years; Parcel 2 was assessed at $536,400 ($0 for land and

$536,400 for improvements) for the 2008 through 2009 tax years and $540,000 ($0 for

land and $540,000 for improvements) for the 2010 through 2011 tax years; Parcel 3 was

assessed at $877,100 ($408,200 for land and $468,900 for improvements) for the 2008

through 2011 tax years; Parcel 4 was assessed at $1,606,400 ($917,900 for land and

$688,500 for improvements) for the 2008 through 2011 tax years; and Parcel 5 was

assessed at $950,600 ($387,900 for land and $562,700 for improvements) for the 2008

through 2011 tax years. (See Cert. Admin. R. at 2, 9, 16, 23, 30, 37, 44, 51, 58, 65, 72,

79, 86, 93, 100, 107, 114, 121, 128, 135.)

Believing that these assessments contained mathematical errors, among other

things, Square 74 filed “Petition[s] for Correction of an Error” (“Form 133s”) with the

2
Marion County Auditor for each of the four years at issue on November 13, 2012. (See,

e.g., Cert. Admin. R. at 1-2, 6-7.) On February 26, 2016, after the Form 133s were

forwarded to the Marion County Property Tax Assessment Board of Appeals (“PTABOA”),

the PTABOA adjusted Square 74’s assessments by reducing the assessed value of

certain improvements and increasing the assessed value of some of the land. (See, e.g.,

Cert. Admin. R. at 3, 31, 59, 87, 115.) Specifically, the PTABOA adjusted the

assessments as follows: Parcel 1 was reduced to $532,300 ($284,500 for land and

$247,800 for improvements) for the 2008 tax year and $528,400 ($284,500 for land and

$243,900 for improvements) for the 2009 through 2011 tax years; Parcel 2 was increased

to $926,000 ($499,100 for land and $426,900 for improvements) for the 2008 through

2009 tax years and $929,600 ($499,100 for land and $430,500 for improvements) for the

2010 through 2011 tax years; Parcel 3 was reduced to $758,100 ($408,200 for land and

$349,900 for improvements) for the 2008 through 2011 tax years; Parcel 4 was reduced

to $1,584,500 ($917,900 for land and $666,600 for improvements) for the 2008 through

2011 tax years; and Parcel 5 was reduced to $916,400 ($387,900 for land and $528,500

for improvements) for the 2008 through 2011 tax years. (See Cert. Admin. R. at 3, 10,

17, 24, 31, 38, 45, 52, 59, 66, 73, 80, 87, 94, 101, 108, 115, 122, 129, 136.)

On April 5, 2016, Square 74 filed Form 133s with the Indiana Board, claiming that

all its assessments contained mathematical errors due to 1) numerous building

components being double-assessed; and 2) the assessment of its leasehold interest in

the tenant spaces included the underlying land that was allegedly the responsibility of the

3
owner, the City of Indianapolis, not Square 74.1 (See, e.g., Cert. Admin. R. at 1-7.) The

parties subsequently determined that the Square 74 Form 133s could be consolidated

and resolved by means of summary judgment. (See Cert. Admin. R. at 160-64.)

On May 15, 2018, Square 74 filed its “Motion for Summary Judgment and

Designation of Evidence in Support of Summary Judgment,” arguing that the land

assessments were made against the wrong person and illegal as a matter of law because

the terms of its lease stated that it “has no right, interest, or responsibility as to the land”

beneath the tenant spaces.2 (See, e.g., Cert. Admin. R. at 165-70, 234-248.) In

response, the Assessor filed a “Cross[-]Motion to Dismiss” pursuant to Indiana Trial Rule

12(B)(6). (See Cert. Admin. R. at 249-56.) In his Cross-Motion, the Assessor contended

that Square 74’s appeals should be dismissed for failure to state a claim upon which relief

could be granted because Square 74 complained of errors that were not objective errors

and therefore could not be corrected under the Form 133 appeals process. (See Cert.

Admin. R. at 251-54.)

On April 18, 2019, without conducting a hearing, the Indiana Board issued its final

determination that granted the Assessor’s Cross-Motion. (See Cert. Admin. R. at 291-

301.) In its final determination, the Indiana Board explained that while it

serious[ly] doubts that leasing ground floor space in a structure
carries with it no interest in the underlying land, particularly where
the lease does not plainly say so[, it did not need to resolve that issue
because b]y statute, the interest being assessed was Square 74’s

1
Square 74 also filed Form 130/131 petitions for review with the Indiana Board. (See Cert.
Admin. R. at 160.) The Indiana Board, however, has not addressed those appeals because it
determined “it would be administratively feasible and efficient to first address and determine” the
legal issues presented in the Form 133s. (See Cert. Admin. R. at 160-61.)
2
Square 74’s designated evidence included the “Square 74 Master Lease,” the “Master Lease
Estoppel, Consent and Agreement,” and the property record cards for the tenant spaces. (See,
e.g., Cert. Admin. R. at 166-68.)
4
 possessory interest, not the land or improvements themselves or fee
ownership in them.

(Cert. Admin. R. at 297-98 ¶¶ 15-16.) Consequently, the Indiana Board determined that

Square 74’s appeals could not be resolved under the Form 133 appeals process, a

process limited to resolving objective errors, because the resolution of the issue

depended on the subjective matter of how Square 74’s leasehold estate was to be valued.

(See Cert. Admin. R. at 295-300 ¶¶ 8-20.)

On May 31, 2019, Square 74 initiated this original tax appeal. The Court took the

matter under advisement on October 30, 2019. 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

Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). Thus, to prevail on appeal, Square 74

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)

(2019).

LAW

During the years at issue, a taxpayer could challenge a property tax assessment

by filing a Form 133 petition for correction of an error with the county auditor. See IND.

CODE § 6-1.1-15-12 (2008) (amended 2009). (See also, e.g., Cert. Admin. R. at 1-2.)

5
The Form 133 administrative appeal procedure could be filed at any point within three

years from the date the taxes were first due. See Pulte Homes of Indiana, LLC v.

Hendricks Cty. Assessor, 42 N.E.3d 590, 593 (Ind. Tax Ct. 2015), review denied. See

also Hutcherson v. Ward, 2 N.E.3d 138, 142 (Ind. Tax Ct. 2013) (explaining that as of

2013, the Form 133 administrative appeal procedure was no longer restricted to a three-

year time limitation by 50 IAC 4.2-3-12).

The types of errors that were correctable under the Form 133 administrative appeal

procedure were expressly enumerated. See I.C. § 6-1.1-15-12(a). For example, the

administrative appeal procedure could be used to correct the following errors: (1) an

assessment against the wrong person; (2) an error in carrying delinquent taxes forward

from one tax duplicate to another; (3) the taxes were illegal as a matter of law; or (4) a

mathematical error was made in computing an assessment. See generally I.C. § 6-1.1-

15-12(a)-(d). These types of errors have been designated as objective errors, not errors

that required subjective judgment. See Pulte Homes, 42 N.E.3d at 593.

ANALYSIS

On appeal, Square 74 contends that the final determination must be reversed

because the Indiana Board erred in concluding that the issue, which simply “asks the

Court to determine the leasehold interest to be assessed[,]” required the use of subjective

judgment. (See Pet’r Br. at 14.) Square 74 maintains that the issue is “wholly objective

in nature” because its resolution depends on the plain language of three objective items,

i.e., its lease, Indiana Code § 6-1.1-10-37(b), and 50 IAC 1-3-3. (See Pet’r Br. at 16-22;

Pet’r Reply Br. at 2-5.) Alternatively, Square 74 asks the Court to correct the PTABOA’s

“retroactive assessments” of Parcel 2, claiming the PTABOA exceeded its authority in

6
reassessing the property. (See Pet’r Reply Br. at 4-5.)

I. Whether Square 74’s leasehold estate includes the land

A. The Lease

Square 74 maintains that the “Square 74 Master Lease” defines the tenant spaces,

real estate taxes, and the lessee’s and lessor’s responsibilities for maintenance,

insurance, and damages, “effectively split[ting the] ownership of the land and the

improvements” for, among other things, property tax assessment purposes. (See Pet’r

Br. at 8-10, 18-19.) Furthermore, Square 74 claims that the “Master Lease Estoppel,

Consent and Agreement” supports its position because it does not expressly state that its

leasehold interest includes the land under the tenant spaces. (See Pet’r Br. at 10, 17

(defining a “leasehold interest” “as the right held by the lessee to use and occupy real

estate for a stated term and under the conditions specified in the lease” (citations

omitted)).) Consequently, Square 74 contends that because the designated evidence

establishes that it did not have “any right or interest in the land” underlying the tenant

spaces, the land assessments were made against the wrong person and should be

removed from its assessment records as a matter of law. (See, e.g., Pet’r Br. at 16, 22.)

To prevail under the Form 133 standard, the Master Lease must explicitly state

that Square 74’s leasehold interest in the tenant spaces excludes the land. Square 74

relies on the definition of “tenant spaces” in the following provision of the Master Lease:

[T]hose portions of the first floor of the Square 74 Garage that are
depicted and/or described on Exhibit A-1, attached hereto and
incorporated herein by reference, consisting of: (a) Houlihans, which
contains 6,239 square feet; (b) Hard Times Café, which contains
2,830 square feet; (c) Steak N Shake, which contains 5,095 square
feet; (d) Planet Hollywood, which contains 11,747 square feet; and
(e) The Mikado, which contains 4,849 square feet; together with
rights and non-exclusive easements in and to: (a) the Common

7
 Facilities; (b) those portions of the Square 74 Garage depicted and/or
described on Exhibit A-2, attached hereto and incorporated herein
by reference, for the maintenance, repair, replacement, and cleaning
of grease traps; and (c) those portions of the Square 74 Garage
depicted and/or described in Exhibit A-3, attached hereto and
incorporated herein by reference, for the maintenance, repair, and
replacement of electrical, plumbing, mechanical, and other
equipment and facilities within or exclusively serving the Leased
Premises.

(See, e.g., Pet’r Br. at 8, 18 (citing Cert. Admin. R. at 172).) Exhibits A-1, A-2, and A-3,

however, are not attached to the Master Lease and have not been designated as

evidence. (See Cert. Admin. R. at 165-233.) Square 74 also relies on the provision

regarding real estate taxes:

[Square 74] shall pay and discharge, or cause the [qualified
sublessees] to pay and discharge, as when the same become due
and payable, all Real Estate Taxes assessed for or with respect to
the [tenant spaces], the leasehold interest of [Square 74] in the
[tenant spaces], and/or any subleasehold interest in the [tenant
spaces]; provided that [Square 74] shall pay all such Real Estate
Taxes directly to the appropriate assessing authority. [The] Master
Landlord shall pay and discharge, as and when the same become
due and payable, all Real Estate Taxes assessed for or with respect
to the Square 74 Garage, excluding the Real Estate Taxes assessed
for or with respect to the [tenant spaces], the leasehold interest of
[Square 74] in the [tenant spaces], and/or any subleasehold interest
in the [tenant spaces]; provided that, if any Real Estate Taxes are
assessed for, or with respect to, the entire Square 74 Garage during
the Term, then: (a) a fair and equitable portion of such Real Estate
Taxes shall be allocated to the [tenant spaces]; (b) [Square 74] shall
pay to [the] Master Landlord, as additional rent and upon receipt of
written demand, the amount of such allocated Real Estate Taxes;
and (c) [the] Master Landlord shall pay the amount of Real Estate
Taxes assessed for, or with respect to, the entire Square 74 Garage
directly to the appropriate assessing official.

(See Pet’r Br. at 9, 19 (citing Cert. Admin. R. at 174).) Additionally, Square 74 cites the

maintenance provisions in the Master Lease:

(a) [Square 74’s] Obligations. [Square 74], at its cost and
expense and at all times during the Term, shall: (a) operate, keep,

8
 and maintain the [tenant spaces] in good and safe condition and
repair; and (b) provide any repairs and replacements that may be
necessary to operate, keep, and maintain the [tenant spaces] in good
and safe condition and repair. The operation and maintenance
obligations of [Square 74] shall include, without limitation: (a) the
maintenance, repair, and replacement of all exterior doors,
doorframes, windows, window frames, exterior signs, awnings, and
lighting, interior walls, floors, and ceilings (except to the extent that
such interior walls, floors, and ceilings are structural components of
the Square 74 Garage), and heating, air conditioning, ventilating,
lighting, electrical, plumbing, mechanical, and other equipment and
facilities within or exclusively serving the [tenant spaces]; and (b)
keeping the sidewalk immediately adjacent to the [tenant spaces] in
a clean and sightly condition.

(b) Master Landlord’s Obligations. Subject to the provisions
of Section 24,3 [the] Master Landlord shall cause all portions of the
Square 74 Garage, other than: (i) the [tenant spaces]; and (ii) the
exterior doors, doorframes, windows, window frames, exterior signs,
awnings, and lighting, interior walls, floors, and ceilings (except to
the extent that such interior walls, floors, and ceilings are structural
components of the Square 74 Garage), and heating, air conditioning,
ventilating, lighting, electrical, plumbing, mechanical, and other
equipment or facilities within or exclusively serving the [tenant
spaces]; to be maintained and operated by [the Circle Centre
Development Company] or its successor as manager of the Square
74 Garage pursuant to, and as required by, the Parking Management
Agreement.

(See Pet’r Br. at 10 (citing Cert. Admin. R. at 175 (footnote added)).) (See also Cert.

Admin. R. at 171-72.) Finally, Square 74 points to the insurance and damage provisions

contained in the Master Lease:

Casualty Insurance. [Square 74], at its cost and expense, shall
maintain in full force and effect throughout the Term fire and extended
coverage insurance on the [tenant spaces] for at least 100% of its
insurable value on a replacement cost basis, less the replacement cost
of the foundation and other structural components that are not
commonly covered by policies of fire and extended coverage
insurance. Master Landlord, at its cost and expense, shall maintain,
or shall cause to be maintained, throughout the Term the fire and
extended coverage required to be maintained by it or on its behalf
pursuant to the Parking Management Agreement.
3
Section 24 of the Master Lease is a limitation of liability clause. (See Cert. Admin. R. at 184.)
9
 Damage or Destruction. If, at any time during the Term, there is
Casualty Damage, then, subject to the obligation of [the Circle Centre
Development Company] or its successor as manager of the Square
74 Garage pursuant to, and as required by, the Parking Management
Agreement, to repair, restore, and replace structural components of
the Square 74 Garage, [Square 74], at its expense, promptly shall
restore the [tenant spaces] as nearly as possible to its condition prior
to such damage or destruction; provided that, if substantial Casualty
Damage occurs at any time during the Term, and [Square 74] will not
be able, within a period of six months after such Casualty Damage
occurs, to restore the [tenant spaces] as required under this
Subsection, then [Square 74], at its option, may terminate this Lease
upon written notice delivered to [the] Master Landlord within 30 days
after the Casualty Damage[.]

(See Pet’r Br. at 10 (citing Cert. Admin. R. at 177-78).)

Contrary to Square 74’s claim, none of these Master Lease provisions expressly

state that its leasehold interest in the tenant spaces excludes the land. Indeed, the Master

Lease does not directly state 1) that the land is excluded, 2) what constitutes a “structural

component” for purposes of the lease; or 3) which structural components are not

commonly covered by policies of fire and extended coverage insurance. (See Cert.

Admin. R. at 171-91.) Although Exhibits A-1, A-2, and A-3 may have shed light on the

exact parameters of the tenant spaces, they are not included in the designated evidence.

In fact, the certified administrative record indicates that those exhibits might have been

omitted from the Master Lease when it was initially recorded.4 (See Cert. Admin. R. at

171.) Furthermore, the Master Lease Estoppel, Consent, and Agreement does not define

the scope of Square 74’s leasehold interest. (See Cert. Admin. R. at 192-206.)

When the resolution of an issue under review “is automatically dictated by a simple,

4
The copy of the Master Lease in the certified administrative record contains a typewritten
notation, with what appears to be both typed and handwritten initials, stating “Legal Description
Missing At Time of Recording.” (Cert. Admin. R. at 171.)
10
true or false finding of fact, it is considered objective and properly challenged” under the

Form 133 administrative appeal process. Bender v. Indiana State Bd. of Tax Comm’rs,

676 N.E.2d 1113, 1115 (Ind. Tax Ct. 1997). If, however, a simple finding of fact does not

dictate the resolution of an issue and discretion plays a role, the issue is considered to be

subjective and may not be challenged under the Form 133 appeals process. See id.

Here, the issue before the Court, whether Square 74’s lease documentation defines its

leasehold interest to exclude the land under the tenant spaces, requires subjective

judgment for its resolution because neither document expressly states that the land is

excluded. Accordingly, the Court finds no basis for reversing the Indiana Board’s final

determination with respect to this claim.

B. Indiana Code § 6-1.1-10-37(b) and 50 IAC 1-3-3

During the years at issue, Indiana Code § 6-1.1-10-37(b) provided:

If real property that is exempt from taxation is leased to another whose
property is not exempt and the leasing of the real property does not
make it taxable, the leasehold estate and the appurtenances to the
leasehold estate shall be assessed and taxed as if they were real
property owned by the lessee or his assignee.

IND. CODE § 6-1.1-10-37(b) (2008). For purposes of this statute, real property was defined

as, among other things, “land located within this state;” “a building or fixture situated on

land located within this state;” or “an estate in land located within this state, or an estate,

right, or privilege in mines located on or minerals, including but not limited to oil or gas,

located in land, if the estate, right, or privilege is distinct from the ownership of the surface

of the land[.]” IND. CODE § 6-1.1-1-15(1)-(2), (4) (2008); see also IND. CODE § 6-1.1-1-1

(2008) (providing that “[t]he definitions and rules of construction contained in this chapter

apply throughout this article unless the context clearly requires otherwise”). Regulation

11
50 IAC 1-3-3 restates the definition of real property in Indiana Code § 6-1.1-1-15 verbatim

and then provides:

The above section has been construed to mean that all
improvements on leased ground shall be assessed as real estate.

To carry out the provisions of this section all improvements on leased
ground shall be assessed in the current real estate reassessment
program in the same manner as any other real estate. This will
include the preparation of a permanent assessment record, the
computation of the assessment using Indiana Real Estate Property
Appraisal Manual, the mailing of a notice of the assessment, and all
other provisions of existing laws and rules and regulations governing
the assessment of real estate. The only exception will be that no
land or lot values will be included and the assessments and records
should clearly show that they represent “Improvements on Leased
Ground.”

The value of any such improvements should be listed with other real
estate in the Assessor’s Book and the Tax Duplicate prepared by the
county auditor, but, as stated, should be clearly identified as
“Improvements on Leased Ground” so there is no conflict with the
real estate and improvements thereon assessed in the name of the
owner of the fee simple title. This wording may be entered in the
column provided for description of real estate. The value of such
improvements shall be entered in the appropriate column provided
for that purpose in such records.

50 I.A.C. 1-3-3.

Square 74 contends that the statutes and regulation unambiguously define “the

leasehold interest [that is] to be assessed” for purposes of property tax assessments

involving non-exempt lessees like itself. (See Pet’r Br. at 21; Pet’r Reply Br. at 10.)

Square 74 explains that read together the statutes and regulation exclude land from the

leasehold interest: (1) “the real-property interest to be assessed to the non-exempt tenant

is the leasehold estate and the appurtenances to the leasehold estate[;]” (2) “‘real

property’ for purposes of a leasehold interest [is] an estate in land located within this

state[] . . . if the estate, right, or privilege is distinct from the ownership of the surface

12
land[;]” and (3) “all improvements on leased ground shall be assessed in the same

manner as any other real estate except that no land values will be included and the

assessments and records should clearly show that they represent ‘Improvements on

Leased Ground.’” (See Pet’r Br. at 21 (internal quotation marks omitted); Pet’r Reply Br.

at 10.)

When, as here, the Court is asked to construe a statute, its primary goal is to

determine and implement the intent of the Legislature in enacting that statute. See

Hamilton Square Inv., LLC v. Hamilton Cty. Assessor, 60 N.E.3d 313, 317 (Ind. Tax Ct.

2016), review denied. Generally, the best evidence of this intent is found in the plain

language of the statute itself. See id. See also Johnson Cty. Farm Bureau Coop. Ass’n

v. Indiana Dep’t of State Revenue, 568 N.E.2d 578, 581 (Ind. Tax Ct. 1991) (explaining

that non-technical statutory words and phrases shall be understood in their plain,

ordinary, and usual sense), aff’d, 585 N.E.2d 1336 (Ind. 1992). Accordingly, meaning

must be given to each and every word in a statute because the Court will not presume

that the Legislature intended to enact a statutory provision that is superfluous,

meaningless, or a nullity. Hamilton Square Inv., 60 N.E.3d at 317. When the language

of a statute is clear and unambiguous, the Court may not expand or contract its meaning

by reading into it language to correct supposed omissions or defects. Hutcherson, 2

N.E.3d at 142. Moreover, these same rules of statutory construction apply to duly

promulgated administrative rules and regulations. See Osolo Twp. Assessor, 789 N.E.2d

at 112.

Here, the plain language of Indiana Code § 6-1.1-10-37(b) indicates that when real

property that is exempt from property taxation is leased to an entity that is not entitled to

13
a property tax exemption, the leasehold estate is to be assessed and taxed as if the

lessee owns the real property. I.C. § 6-1.1-10-37(b). Nothing within the statutory

language suggests, however, that the statute was intended to dictate the conditions of

the lease creating the leasehold estate. See I.C. § 6-1.1-10-37(b). Indeed, under this

statute a leasehold estate is synonymous generally with the term “real property.” See I.C.

§ 6-1.1-10-37(b). Indiana Code § 6-1.1-1-15, in turn, defines what constitutes “real

property” for purposes of Indiana Code § 6-1.1-10-37(b) and 50 IAC 1-3-3. See generally

I.C. §§ 6-1.1-1-15, -10-37(b); 50 I.A.C. 1-3-3. Accordingly, an assessment for a leasehold

estate could reflect the assessed value of one or more of the following: land, a building

or fixture situated on the land, an appurtenance to the land, or certain mining rights or

mineral interests.5 See I.C. §§ 6-1.1-1-15(1)-(4), -10-37(b). The statutory language,

therefore, fails to mandate the scope of Square 74’s leasehold estate subject to property

tax assessment.

Finally, the plain language of 50 IAC 1-3-3 provides the procedures for assessing

improvements located on leased ground. 50 I.A.C. 1-3-3. Nothing within this regulation’s

language indicates that the Department of Local Government Finance intended to create

5
In the case of a leasehold estate comprised of an estate, right, or privilege in mining rights or
mineral interests, the ownership of the land may be distinct from the leasehold interest and
therefore should not include the value of the land. See IND. CODE § 6-1.1-1-15(4) (2008).
Therefore, in that context, the assessment of the land is separate from the assessment of the
leasehold interest. See Riggs v. Board of Comm’rs of Sullivan Cty., 103 N.E. 1075, 1077 (Ind.
1914) (stating that in Indiana, “mining rights and interests in minerals are the subject of horizontal
severance from the surface[] and taxable as real estate”) (citation omitted); Board of Comm’rs of
Vigo Cty. v. Hale, 156 N.E. 172, 173 (Ind. Ct. App. 1924) (providing that when there is separate
ownership of the mining rights, the law requires a separate assessment of the land and the mining
rights). Consequently, the language of Indiana Code § 6-1.1-1-15, considered in light of Indiana
Code § 6-1.1-10-37(b), does not indicate that all leasehold estates automatically exclude the
value of land for purposes of assessment. See Lake Cty. Assessor v. Amoco Sulfur Recovery
Corp., 930 N.E.2d 1248, 1254-55 (Ind. Tax Ct. 2010) (providing that “[s]tatutes related to the same
general subject matter are in pari materia and should be construed together so as to produce a
harmonious result when possible”) (citation omitted), review denied.
14
a per se rule that the assessment of leasehold estates excludes the underlying land. See

50 I.A.C. 1-3-3. Contrary to Square 74’s claims, therefore, Indiana Code § 6-1.1-1-15,

Indiana Code § 6-1.1-10-37(b), and 50 IAC 1-3-3 do not establish that its leasehold

interest in the tenant spaces excluded the underlying land during the years at issue as a

matter of law. Accordingly, Square 74 has not shown that the Indiana Board erred in

dismissing its case for failure to state a claim upon which relief may be granted.

II. Whether the PTABOA exceeded its authority in reassessing Parcel 2

In the alternative, Square 74 asks the Court to reinstate the original assessments

of Parcel 2 for the years at issue contending the PTABOA exceeded its authority in

reassessing the property. More specifically, Square 74 claims the PTABOA’s “retroactive

assessments” were unlawful because they were issued without proper notice and time-

barred under Indiana Code § 6-1.1-9-4. (See Pet’r Reply Br. at 4-5.)

It is well-settled that this Court cannot review facts or issues raised for the first time

on appeal because neither the Indiana Board’s final determination nor the certified

administrative record would contain the Indiana Board’s written findings regarding them.

See, e.g., Scheid v. State Bd. of Tax Comm’rs, 560 N.E.2d 1283, 1284-86 (Ind. Tax Ct.

1990); IND. CODE § 33-26-6-3(b) (2019) (limiting the Court’s review to the issues raised

by litigants during the Indiana Board proceedings or the issues discussed by the Indiana

Board in its final determination). The certified administrative record establishes that

Square 74’s claim regarding the PTABOA’s authority to reassess Parcel 2 was not

presented to the Indiana Board during the administrative proceedings. (See Cert. Admin.

R. at 165-248, 257-70.) Consequently, the Court finds that Square 74 has waived this

claim because it could have, but failed, to present it to the Indiana Board.

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 CONCLUSION

For the above-stated reasons, the Court finds no basis for reversing the final

determination of the Indiana Board. Accordingly, the Court AFFIRMS the Indiana Board’s

dismissal of Square 74’s Form 133s for failure to state a claim upon which relief may be

granted.

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