Lake County Property Tax Assessment Board of Appeals v. BP Amoco Corp.

Attorneys for Petitioners Attorneys for Respondent
Steve Carter Jeffrey T. Bennett
Attorney General of Indiana Hamish S. Cohen
David L. Steiner Steven G. Cracraft
Deputy Attorney General of Indiana Indianapolis,
Indiana
Nandita G. Shepherd
Department of Local Government Finance
Attorneys for North Township Assessor

Brian P. Popp
Merrillville, Indiana
Attorneys for the Lake County Property Tax Assessment
Board of Appeals and for the Lake County Assessor

John S. Dull
Crown Point, Indiana
Attorney for the Lake County Auditor and Treasurer
________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 49S10-0309-TA-00400

Lake County Property Tax
Assessment Board of Appeals,
John Matanovich, in his official
capacity as North Township
Assessor, Peter Benjamin, in his
official capacity as Lake County
Auditor, Paul G. Karras, in his
official capacity as Lake County
Assessor, and Peggy Holinga
Katona, in her official capacity as
Lake County Treasurer,
Petitioners (Respondents
below),

v.

BP Amoco Corporation n/k/a
BP Products North America, Inc.
Respondent (Petitioner
below).

________________________________

Appeal from the Indiana Tax Court, No. 49T10-0209-TA-00114
The Honorable Thomas G. Fisher, Judge
_________________________________

On Petition for Review
_________________________________

January 13, 2005

Sullivan, Justice.

In May 1999, an industrial concern filed property tax appeals claiming
that the taxes on its Lake County personal property covering the five-year
period from 1995 through 1999 were “illegal as a matter of law.” The
taxpayer’s specific claim was that the county had “systematically
underassessed property in Lake County to [its] detriment.” Indiana law in
effect at the time permitted challenges to assessments on this basis but
required them to be made only to the current year’s assessment, not prior
years’. As such, the local and state property tax authorities correctly
dismissed the appeals covering 1995 through 1998.

Background

The taxpayer here, BP Amoco Corporation, now known as BP Products
North America Inc., concluded that certain of its personal property in Lake
County had been improperly assessed for property tax purposes during the
five years from January 1, 1995, through December 31, 1999. On May 10,
1999, BP filed papers challenging the assessments for the 1995-1999 years
and seeking refunds of a portion of the property taxes it paid for the 1995-
1998 years.

Indiana property tax law contains appeal provisions that allow
taxpayers to challenge assessments, provisions that provide for full
hearing and judicial determination at which a taxpayer may raise any and
all constitutional objections to the tax. The procedures for doing so are
set forth in Indiana Code Section 6-1.1-15-1 and Indiana Administrative
Code Title 50, Regulations 4.2-3-3 and 4. On a form denominated “Form 130,
Petition to the County Board of Review for Review of Assessment,” a
taxpayer who “disagree[s] with the assessment made by an assessing
official” sets forth “[t]he reasons why the petitioner believes that the
assessment determination by the township assessor is erroneous.” Ind.
Admin. Code tit. 50, r. 4.2-3-3 (1996). The petition is reviewed by local
and state property tax authorities[1]—in this case, the Lake County Board
of Review and the State Board of Tax Commissioners[2]—and is subject to
judicial review, as provided by applicable statutes and regulations.

BP challenged the 1999 assessments by filing appeals on Form 130 with
the appropriate tax officials on May 10, 1999.[3]

The procedures set forth in Indiana Code Section 6-1.1-15-1 and
Indiana Administrative Code Title 50, Regulation 4.2-3-3 and Form 130,
however, are only available to challenge a current year’s assessment. To
challenge its assessments for the 1995-1998 period, therefore, BP used a
different set of procedures and forms.

Another statute and several regulations, Indiana Code Section 6-1.1-15-
12 and Indiana Administrative Code Title 50, Regulations 4.2-3-4, 12 and
14, provide taxpayers with the opportunity to appeal assessments on a form
denominated “Form 133, Petition for Correction of Error,” within three
years from the date the taxes were first due. BP challenged the 1995-1998
assessments by filing appeals on Form 133 with the appropriate tax
officials on May 10, 1999. It is these filings that are the subject of
this case.

The grounds on which challenges may be made on Form 133 are more
limited than challenges to current assessments on Form 130. See Ind. Code
§ 6-1.1-15-12 (2004). One ground on which a challenge may be made on Form
133 is where the taxpayer contends that “[t]he taxes, as a matter of law,
were illegal.” I.C. § 6-1.1-15-12(a)(6). That is the ground upon which BP
Amoco relies, i.e., it contends that it is entitled to a refund of a
portion of the taxes it paid on its personal property for the years 1995-
1998 because “the taxes, as a matter of law, were illegal.”

BP’s challenges were denied by both local and state property tax
authorities, in each case without a hearing, on grounds that the relief BP
sought was not available under Indiana Code Section 6-1.1-15-12 and Form
133. BP then sought judicial review in the Indiana Tax Court. The Tax
Court concluded that while “[t]he claims raised in BP’s Forms 133 may well
be inappropriate for a Form 133,” BP Amoco was entitled to a hearing “to
establish an administrative record that would support the allegations
contained within its complaint.”[4] BP Amoco Corp. v. Lake Co. Property
Tax Assessment Bd., 785 N.E.2d 1216, 1220, 1220 n.5 (Ind. Tax Ct. 2003).

The local and state property tax authorities sought, and we granted,
review of the Tax Court’s decision. Lake Co. Prop. Tax Assessment Bd. of
Appeals v. BP Amoco Corp., 804 N.E.2d 749 (Ind. 2003).

Discussion

BP’s argument is “its property assessments in the years 1995-98 were
not uniform and equal with other properties. . . . The Board dismissed BP’s
claims without an evidentiary hearing, thereby thwarting BP’s opportunity
to actually demonstrate that the evidence it was prepared to introduce was
appropriate for a Form 133 challenge.” Br. of BP Amoco in Response at 12.
More specifically, BP contends

[T]he taxes it paid for assessment years 1995-1998 were “illegal
as a matter of law.” If BP had been afforded an evidentiary hearing
before the Board, it would have presented objective evidence that Lake
County has systematically underassessed property in Lake County to the
detriment of BP and that BP is entitled to refunds based on the
illegal “systematic” underassessment.

Id. at 24-25 (citation and footnote omitted).

The property tax authorities respond that BP was not entitled to the
hearing ordered by the Tax Court because under no set of facts was it
entitled to the retrospective relief it sought. As set forth above, BP’s
claim to retrospective relief is predicated on its claim that its taxes
were “illegal as a matter of law.” But the taxing authorities argue that
BP does not in fact contend that the taxes it challenges are illegal as a
matter of law.

Instead, without any precedent, BP seeks to expand the meaning
of “illegal as a matter of law” beyond a determination of the legality
of the tax itself to a determination of the legality of the
assessments on which the amount of its [personal property taxes were]
calculated. The statutes, however, contain no language that would
expand their application beyond the challenged tax to the assessments
used to calculate the amount of the tax.

Br. of Pet’r Lake Co. at 13.

The tax authorities maintain that “BP Amoco does not claim that any
particular tax law is illegal; rather it asks for an equalization
adjustment.” And, they contend, neither statutes nor judicial precedent
“provide authority for a taxpayer to claim an individual equalization
adjustment.” Br. of Appellant North Township Assessor at 4-5.

The taxing authorities seem to argue that appeals on Form 133 using
the ground of “illegal as a matter of law” can only be used to challenge
the facial illegality of a tax itself. For the reasons discussed below, we
do not agree with that proposition. The Board’s regulation in effect at
the time of the assessments in question here provides for the use of Form
133 in certain circumstances where the procedure or method used in
determining an assessment was erroneous. See Ind. Admin. Code tit. 50, r.
4.2-3-12 (1992 & 1996) (“Regulation 3-12”). But we do agree that BP is not
entitled to the relief provided by Regulation 3-12 on the grounds it
asserts here. [5]

Our analysis turns a large degree on our interpretation of Regulation
3-12. It is, therefore, important to note that this regulation was
repealed on April 1, 2000, when the State Board of Tax Commissioners
promulgated a new regulation in response to this court’s decision in State
Bd. of Tax Comm’rs v. Town of St. John.[6] See 23 Ind. Reg. 1608 (2000).
While we express no opinion on the operation of appeals of property tax
assessments made following the repeal, we do not discern anything in
current law that is inconsistent with Regulation 3-12 or the interpretation
we give it today.

The relevant provisions of Regulation 3-12 (which incorporate the
relevant provisions of the statute) are as follows:

Sec. 12. (a) . . . A taxpayer who claims that an error in an
assessment entitles them to a refund must file both a Form No. 133 (50
IAC 4.2-2-9), for correction of the assessment and a Form No. 17T (50
IAC 4.2-2-9), for a refund. A fact to keep in mind when dealing with
these forms is that they are not to be used to challenge the
methodology used in generating an assessment. There are appeal
provisions for that purpose.
. . .
(c) Form 133 required. Form No. 133 (Petition for Correction of
Error) (50 IAC 4.2-2-9), is to be filed in duplicate with the auditor
of the county where the assessment was made to correct one (1) of the
following errors in the tax duplicate:
(1) The taxes, as a matter of law, were illegal.
(2) There was a mathematical error in computing an assessment.
(3) 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.
. . .
(g) Grounds for filing Form No. 133. The following are examples of
grounds for the filing of a petition for correction of error (Form No.
133) (50 IAC 4.2-2-9) and a petition for refund of taxes (Form 17T)
(50 IAC 4.2-2-9):
(1) The taxes, as a matter of law, were illegal (subsection (c)).
(A) Property that was entered on the personal property tax
return as taxable is not subject to property taxes, and for
which no application for exemption is required.
example
A vehicle subject to the motor vehicle excise tax was included
on the personal property return as taxable.
(B) Taxpayer “A” challenged in tax court a procedure or
method used in determining their assessment for year “Y”, and
the court decided in favor of Taxpayer “A”.
(C) Taxpayer “B” has a suit pending in court against the
state board with respect to year “Y” or any other year on the
same facts and challenging the same procedure or method as
Taxpayer “A”. The board will order the correction of the
assessment of Taxpayer “B” upon the filing of a Form No. 133 (50
IAC 4.2-2-9), for the assessment year challenged in the suit.
After the assessment has been corrected, Taxpayer “B” is
entitled to file a Form No. 17T (50 IAC 4.2-2-9), for a refund
of taxes paid on that assessment.
(D) Taxpayer “C” does not have a suit pending as described
above. He is entitled to a correction of assessments made on
the same facts and using the same procedure or method as
Taxpayer “A”. By filing a Form No. 133 (50 IAC 4.2-2-9), they
may obtain a correction of their assessments upon which taxes
were due in the three (3) years preceding the date of filing.
However, they may not obtain an assessment correction for a year
that precedes year “Y”. After those assessments have been
corrected, Taxpayer “C” is entitled to file a Form No. 17T (50
IAC 4.2-2-9), for a refund of taxes paid on those assessments.
Taxpayer “C” may also file a Form No. 133 (50 IAC 4.2-2-9), for
the correction of any assessment upon which taxes were not yet
due at the time of filing.
. . .

Ind. Admin. Code tit. 50, r. 4.2-3-12 (1992 & 1996) (emphasis added).

We think it apparent from the language and structure of Regulation 3-
12 that appeals could not be made on Form 133 to challenge a “procedure or
method used in determining [an] assessment” on grounds that the taxes were
illegal as a matter of law. Such challenges to “the methodology used in
generating an assessment” were required to utilize the “appeal provisions
for that purpose” (i.e., Form 130). Regulation 3-12(a). Said differently,
if the Tax Court had decided a challenge on Form 130 to “a procedure or
method used in determining [an] assessment . . . in favor of [the]
taxpayer,” that would have constituted a declaration that the taxes were
illegal as a matter of law, and then the challenging taxpayer (and certain
other taxpayers) would have been entitled to use Form 133 to have their
assessments corrected and Form 17T to obtain refunds.

Subsections (a) and (g)(1)(B), (C), and (D) of Regulation 3-12, when
read together, make clear the way in which the “correction of error”
mechanisms operated. Subsection (g)(1)(B) of Regulation 3-12 specified
that “Taxpayer A,” who had used the “appeal provisions,” Regulation 3-
12(a), of Form 130 to challenge successfully in the Tax Court “a procedure
or method used in determining [its] assessments[,]” was entitled to a
refund for a given year —because when (but only when) the Tax Court ruled
in Taxpayer A’s favor, its assessments became illegal as a matter of law.
Subsection (g)(1)(C) extended a right to a correction of assessment and a
refund to other taxpayers who had suits pending in the Tax Court on the
same facts and challenging the same procedure or method as a taxpayer
successful under Subsection (g)(1)(B)—because when (but only when) the Tax
Court ruled in Taxpayer A’s favor, Taxpayer B’s assessments became illegal
as a matter of law. And Subsection (g)(1)(D) extended a correction of
assessment and right to a refund to other taxpayers on the same facts and
using the same procedure or method as a taxpayer successful under
Subsection (g)(1)(B)—because when (but only when) the Tax Court ruled in
Taxpayer A’s favor, Taxpayer C’s assessments became illegal as a matter of
law.

The two cases cited by the Tax Court as examples of where taxpayers
have been awarded relief who have been able to “show[ ] by probative
evidence that their property is assessed and taxed differently than
comparable properties” support this analysis. See BP Amoco Corp. v. Lake
County Prop. Tax Assessment Bd. of Appeals, 785 N.E.2d 1216, 1219 (2003).
In both Zakutansky v. State Bd. of Tax Comm’rs, 691 N.E.2d 1365 (Ind. Tax
Ct. 1998), and Vonnegut v. State Board of Tax Comm’rs, 672 N.E.2d 87 (Ind.
Tax Ct. 1996), the taxpayers prosecuted their appeals using Form 130, not
Form 133.

In short, appeals challenging the legality of assessments were
required to be made on Form 130. Assessments determined to be illegal
could be corrected (and refunds obtained) using Form 133. The names of the
respective forms, set forth above, well illustrate the distinction: Form
130 is called a “Petition for Review of Assessment”; Form 133, a “Petition
for Correction of Error.” Ind. Admin. Code tit. 50, r. 4.2-2-9 (1992 &
1996).

BP was not entitled to file appeals on Form 133 to challenge its 1995-
1998 assessments on grounds that “Lake County has systematically
underassessed property in Lake County to the detriment of BP and BP is
entitled to refunds based on the illegal underassessment.” Br. of BP Amoco
in Response at 24-25. BP is clearly challenging the methodology used in
generating the assessment of its property. The Regulation explicitly
states that “these forms . . . are not to be used to challenge the
methodology used in generating an assessment. There are appeal provisions
for that purpose.” Regulation 3-12 § 12(a). BP failed to challenge the
assessments in 1995-1998 within time periods for which Form 130 was
available; it is foreclosed from using Form 133 for these purposes. No
hearing was required to make this determination.

BP was, of course, entitled to use the “appeal provisions” referred to
in Regulation 3-12 to challenge the “methodology used in generating” its
1999 assessment and did so using the “appeal provisions” set forth in
Indiana Code Section 6-1.1-15-1 and Indiana Administrative Code Title 50,
Regulation 4.2-3-3 and Form 130. Subsection (g)(1)(B) of Regulation 3-12
made clear that if that challenge is successful, it would be entitled to
correction and refund for that year.[7], [8]

Conclusion

The decision of the Indiana Tax Court in this case is reversed. The
decisions of the property tax authorities dismissing BP Amoco’s appeals on
Form 133 are affirmed.

Shepard, C.J., and Dickson and Boehm, J.J., concur. Rucker, J., concurs in
result.
-----------------------
[1] If an appeal on Form 130 is rejected by the local property tax
authority, an appeal to the state authority is made on Form 131. The
combined procedure is sometimes referred to as “the 130/131 appeals
procedure.” See United States Steel Corp. v. Lake County Prop. Tax
Assessment Bd. of Appeals, 785 N.E.2d 1209, 1214 n.12 (Ind. Tax Ct. 2003).
[2] On January 1, 2002, the Legislature abolished the State Board of Tax
Commissioners and established an Indiana Board of Tax Review. Ind. Code §§
6-1.5-2-1; 6-1.5-4-1 (Supp. 2001); 2001 Ind. Acts 198 § 95. For purposes
of this case, the Indiana Board has the power and authority previously held
by the State Board. As a result, even though BP appealed to the State
Board of Tax Commissioners, the Indiana Board of Tax Review issued the
final determination in this case.
The same legislation also replaced individual county “Boards of
Review” with county “Property Tax Assessment Boards of Appeals.” In this
case, therefore, the Lake County Board of Review is now the Lake County
Property Tax Assessment Board of Appeals.
[3] BP’s challenge to its 1999 assessment is not at issue in this appeal.
[4] The Tax Court attributes to the Respondents listed above the assertion
that “because BP used the wrong form, . . . its attempt to obtain review
and equalization counts for naught.” BP Amoco Corp., 785 N.E.2d at 1219.
The issue in this case is not whether BP mistakenly used the wrong form; it
is whether Indiana Code Section 6-1.1-15-12 and Form 133 are available to
provide BP the retrospective relief it seeks on the grounds it asserts.
[5] In cases disputing the availability of Form 133 to appeal a property
tax assessment, the cases frequently make a distinction between whether the
appropriate tax officials are required to make an objective or subjective
determination. With only one exception, however, none of these cases arise
under the “taxes, as a matter of law, illegal” provision. That case (Rott
Dev. Co. v. State Bd. of Tax Comm’rs, 647 N.E.2d 1157 (Ind. Tax Ct. 1995))
was resolved on other grounds and did not apply the objective/subjective
distinction. We find the guidance in Regulation 3-12 sufficiently clear so
as not to have to apply the objective/subjective distinction.
[6] 702 N.E.2d 1034 (1998).
[7] The property tax authorities’ arguments in their briefs in this case
relating to the availability of an “individual equalization adjustment”
would appear to also relate to BP’s appeals on Form 130. This issue is
addressed in Dep’t of Local Gov’t Fin. v. Commonwealth Edison Co. of Ind.,
Inc., No. 49S10-0307-TA-293, __ N.E.2d __, slip op. at 4-7 (Ind. Jan. 13,
2005).
[8] We also recognize that BP might conceivably be entitled to relief if it
meets the requirements of the hypothetical Taxpayer “C” in Indiana
Administrative Code Title 50, Regulation 4.2-3-12(g)(1)(D). However, BP
advances no claim in that regard in this case.