ATTORNEY FOR PETITIONER: ATTORNEYS FOR RESPONDENT:
PAUL M. JONES, JR. CURTIS T. HILL, JR.
PAUL JONES LAW, LLC ATTORNEY GENERAL OF INDIANA
Indianapolis, IN WINSTON LIN
GREGORY P. GADSON
DEPUTY ATTORNEYS GENERAL
Indianapolis, IN
ATTORNEYS FOR AMICUS CURIAE:
MARILYN S. MEIGHEN
MARJORIE K. RICE
MONROE COUNTY BOARD OF
COMMISSIONERS
Bloomington, IN
IN THE
FILED
INDIANA TAX COURT Sep 29 2017, 4:36 pm
CLERK
Indiana Supreme Court
Court of Appeals
CVS CORPORATION (#6698-02), ) and Tax Court
)
Petitioner, )
)
v. ) Cause No. 49T10-1607-TA-00020
)
MONROE COUNTY ASSESSOR, )
)
Respondent. )
ON APPEAL FROM A FINAL DETERMINATION OF
THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
September 29, 2017
WENTWORTH, J.
CVS Corporation #6698-02 (“CVS”) challenges the Indiana Board of Tax Review’s
final determination valuing its real property for the 2011-2013 tax years. Upon review,
the Court affirms the Indiana Board’s final determination.
FACTS AND PROCEDURAL HISTORY
The subject property is a 12,799 square-foot CVS store located on a 2.79 acre
parcel in Bloomington, Indiana. (Cert. Admin. R. at 249-51.) The Monroe County
Assessor valued the property at $2,476,200 for 2011, $2,354,700 for 2012, and
$2,374,900 for 2013. (Cert. Admin. R. at 249.) Believing these values to be too high,
CVS appealed the assessments to the Monroe County Property Tax Assessment Board
of Appeals (“PTABOA”). The PTABOA affirmed the assessments and CVS appealed to
the Indiana Board.
The parties agreed to an expedited review procedure before the Indiana Board
based on stipulated evidence. (Cert. Admin. R. at 43-46.) See 52 IND. ADMIN. CODE 2-6-
3(b) (2016) (listing expedited review procedures). The stipulated evidence consisted of
the property record card, the 14th edition of The Appraisal of Real Estate, and the parties’
appraisal reports completed by certified appraisers in compliance with the Uniform
Standards of Professional Appraisal Practice. (Cert. Admin. R. at 48-49, 134-35, 256-
57.) CVS’s appraisal report applied the sales comparison, income, and cost approaches
to value the subject property at $1,810,000 for 2011, $1,830,000 for 2012, and
$1,940,000 for 2013. (Cert. Admin. R. at 174-75, 239-40.) The Assessor’s appraisal
report also used the sales comparison, income, and cost approaches to value the
property, but arrived at the higher assessed values of $2,470,000 for 2011, $2,510,000
for 2012, and $2,555,000 for 2013. (Cert. Admin. R. at 258, 381.)
After submitting the stipulated evidence, CVS asked the Indiana Board to take
judicial notice of the records of two prior administrative proceedings involving the same
2
parties and the same appraisers.1 (Cert. Admin. R. at 1329 n. 1.) Although the prior
administrative records involved two distinct CVS properties, each having its own property-
specific appraisal, CVS claimed that the testimony within those prior records would
demonstrate that in the current matter the CVS appraisal was generally more probative
than that of the Assessor. (See generally Cert. Admin. R. at 1329, 1332-48.)
On June 15, 2016, the Indiana Board issued its final determination. It first denied
CVS’s request for judicial notice, stating that the prior administrative records were not part
of the stipulated evidence. (Cert. Admin. R. at 60 ¶ 6 n.4.) Then, after weighing the
evidence, the Indiana Board determined the property’s value by adopting the portions of
each appraisal report it found most reliable: the land values from CVS’s appraisal report
and the improvement values from the Assessor’s appraisal report. (Cert. Admin. R. at
76-82, 83-84 ¶¶ 78-79.) This resulted in a final value for the property of $2,332,295 for
2011, $2,361,749 for 2012, and $2,342,793 for 2013. (Cert. Admin. R. at 84 ¶ 79.)
CVS initiated this original tax appeal on July 28, 2016. The Court heard the parties’
oral arguments on March 7, 2017. 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 of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane
Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct. 2003). CVS must therefore demonstrate that
the Indiana Board’s final determination is arbitrary, capricious, an abuse of discretion, or
1
These administrative proceedings concerned CVS # 3195-02 and CVS # 6697-02, and were
each later appealed to this Court. See Monroe Cnty. Assessor v. SCP 2002 E19 LLC 6697, 77
N.E.3d 270 (Ind. Tax Ct. 2017) (concerning CVS # 6697-02), appeal filed (Ind. 2017); Monroe
Cnty. Assessor v. SCP 2007-C-26-002, LLC, 62 N.E.3d 478 (Ind. Tax Ct. 2016) (concerning CVS
# 3195-02), review denied.
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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 procedure required by law; or unsupported by substantial or reliable
evidence. See IND. CODE § 33-26-6-6(e)(1)-(5) (2017).
ANALYSIS
On appeal, CVS asserts that the Indiana Board’s final determination should be
reversed for three reasons. First, it contends that the final determination is contrary to
law because the Indiana Board did not take judicial notice of two prior cases’
administrative records. (Pet’r Br. at 4-6.) Second, CVS claims that the final determination
is arbitrary and capricious because the Indiana Board did not rely on CVS’s income
approach. (See Pet’r Br. at 6-8; Pet’r Reply Br. at 2-4.) Third, CVS argues that the final
determination is not supported by substantial evidence because the evidence the Indiana
Board relied on was not credible.2 (Oral Arg. Tr. at 25-32.)
I. Contrary to Law
CVS asserts that the law required the Indiana Board to take judicial notice of the
administrative records related to Monroe County Assessor v. SCP 2007-C-26-002, LLC,
62 N.E.3d 478 (Ind. Tax Ct. 2016), review denied (“CVS 1”), and Monroe County Assessor
v. SCP 2002 E19 LLC 6697, 77 N.E.3d 270 (Ind. Tax Ct. 2017), appeal filed (Ind. 2017)
2
The Monroe County Board of Commissioners has argued as amicus curiae in support of the
Assessor that the Court’s previous decisions interpreting market value-in-use are incorrect, and
that the Indiana Board’s determination should be affirmed because it is a step away from those
decisions. (See Br. of Amicus Curiae Bd. of Comm’rs of the Cnty. of Monroe at 2-7.) The Court
stands by its previous decisions. See Howard Cnty. Assessor v. Kohl’s Indiana LP, 57 N.E.3d
913, 918-19 (Ind. Tax Ct. 2016) (stating that the Court agrees with prior jurisprudence governing
market value-in-use), review denied. If the Board of Commissioners wishes to change the market
value-in-use standard, its remedy is with the Legislature rather than this Court. See DeKalb Cnty.
Assessor v. Chavez, 48 N.E.3d 928, 931 (Ind. Tax Ct. 2016) (explaining that the Court applies
the law as written and that parties must ask the Legislature if they wish to change the law).
4
(“CVS 2”), because they involved the same parties, the same issues, and the same
appraisers, and thus, should have controlled the outcome of the current case. (Pet’r Br.
at 4-6; Oral Arg. Tr. at 14.) CVS bases this claim on three authorities: (1) 52 Indiana
Administrative Code 2-7-4; (2) Indiana Rule of Evidence 201(b)(5); and (3) Horton v.
State, 51 N.E.3d 1154 (Ind. 2016). (Pet’r Br. at 4-5.) None of these authorities, however,
required the Indiana Board to take judicial notice.
First, 52 Indiana Administrative Code 2-7-4 does not support CVS’s claim because
it provides only that the Indiana Board “may take official notice of . . . [t]he record of other
proceedings before [it,]” not that it must do so. 52 IND. ADMIN. CODE 2-7-4(a)(2) (2016)
(emphasis added). See W EBSTER'S THIRD NEW INT'L DICTIONARY 1396, 2085-86 (2002
ed.) (explaining that “may” is a discretionary term while “shall” is a mandatory one).
Second, Indiana Rule of Evidence 201 does not support CVS’s claim because it requires
a court to take judicial notice of court records when “a party requests it and the court is
supplied with the necessary information.” Ind. Evidence Rule 201(b)(5), (c)(2). Thus, this
Rule is not inherently applicable to an executive administrative agency such as the
Indiana Board. See 52 IND. ADMIN. CODE 2-7-2(a)(2) (2016) (stating that “[t]he
administrative law judge shall regulate the course of the proceedings in . . . a manner
without recourse to the rules of evidence”). Finally, the Horton case is not authoritative
in these circumstances because it concerned whether judicially noticed documents must
be entered into the record, not whether a court must take judicial notice of a prior case’s
records. See Horton, 51 N.E.3d at 1155, 1160-63.
While the Indiana Board had authority to take official notice of the records of other
proceedings before it, CVS has failed to support its contention that the Indiana Board was
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required to do so. Therefore, the Court will not reverse the Indiana Board’s final
determination on this basis.
II. Arbitrary and Capricious
Next, CVS claims that the final determination is arbitrary and capricious because
the Indiana Board did not determine that the CVS appraisal’s income approach was the
most probative evidence of value like it had in CVS 1 and CVS 2. (Pet’r Br. at 6-7.) CVS,
however, has not identified any authority requiring the Indiana Board to reach identical
conclusions regarding the weight of evidence to those it reached in previous cases. (See
Pet’r Br. at 6-8; Pet’r Reply at 2-4; Oral Arg. Tr. at 15-18.)
The Tax Court has long-held that “each assessment and each tax year stands
alone,” and the Indiana Board evaluates each property’s value based on its specific facts
and circumstances. See e.g., Fleet Supply, Inc. v. State Bd. of Tax Comm’rs, 747 N.E.2d
645, 650 (Ind. Tax Ct. 2001), review denied. Thus, “the Indiana Board is not bound to
reach the same conclusions regarding the persuasive value of an appraiser’s reports and
valuation methods for different tax years or different properties.” CVS Corp. v. Monroe
Cnty. Assessor, Cause No. 49T10-1605-TA-11, slip op. at 11 (Ind. Tax Ct. Sept. 29,
2017).
A final determination is arbitrary and capricious when there is no basis in the record
that would lead a reasonable person to the same conclusion. See Dawkins v. State Bd.
of Tax Comm’rs, 659 N.E.2d 706, 709 (Ind. Tax Ct. 1995). Here, the record shows that
CVS appraisal’s income approach used both national and regional data to determine
market rents and capitalization rates. (Cert. Admin. R. at 218-38.) Its income analysis
adjusted lease rates for one of the comparable properties explaining that this adjustment
6
was due to its superior location, but it did not explain why it did not make any adjustments
to the other comparable properties. (Cert. Admin. R. at 80 ¶¶ 66, 221-29.) Moreover, the
Indiana Board noted that CVS’s appraisal report did not explain how the national and
regional data it used related to the subject property. (Cert. Admin. R. at 80 ¶ 66, 80 ¶
68.) As a result, the Indiana Board determined that the CVS appraisal’s income approach
was not persuasive. (See Cert. Admin. R. at 81 ¶ 69, 82-83 ¶ 75.)
Accordingly, the Indiana Board reasonably concluded that the CVS appraisal’s
income approach was not persuasive based on the lack of adequate explanations in its
analysis of the evidence. Cf. French Lick Twp. Tr. Assessor v. Kimball Int’l, Inc., 865
N.E.2d 732, 739 (Ind. Tax Ct. 2007) (explaining that a taxpayer is required to make the
Indiana Board understand its evidence for the evidence to be considered probative). The
Indiana Board’s determination was therefore neither arbitrary nor capricious. See
Dawkins, 659 N.E.2d at 709.
III. Substantial and Reliable Evidence
Finally, CVS contends that the final determination is not supported by substantial
and reliable evidence. (Oral Arg. Tr. at 30.) The Tax Court may not reverse a final
determination that is supported by substantial and reliable evidence. Cf. I.C. § 33-26-6-
6(e)(5). Furthermore, a final determination is supported by substantial and reliable
evidence if a reasonable person reviewing the entire record could find enough relevant
evidence to support it. See DeKalb Cnty. Assessor v. Chavez, 48 N.E.3d 928, 931-32
(Ind. Tax Ct. 2016).
CVS claims that, based on the appraisals from CVS 1 and CVS 2, the value of the
CVS property at issue here should be comparably less than other Monroe County CVS
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stores. (See Oral Arg. Tr. at 27.) See also CVS 1, 62 N.E.3d at 480; CVS 2, 77 N.E.3d
at 272. Accordingly, CVS concludes that the Indiana Board’s values are not supported
by the evidence because they are roughly even with the values determined in CVS 1 and
CVS 2. (See Oral Arg. Tr. at 25-29.) See also CVS 1, 62 N.E.3d at 480; CVS 2, 77
N.E.3d at 271.
The Indiana Board explained in its final determination, however, the reasons it
weighed the credibility of the evidence as it did. In valuing the property, the Indiana
Board determined that both parties’ calculations under the cost approach were the most
reliable evidence of value because the parties’ other approaches lacked data relating
physically comparable properties to the local market. (See Cert. Admin. R. at 82-83 ¶
75.) It further determined that the Assessor’s improvement valuation was generally
reliable, whereas CVS itself acknowledged that parts of its improvement valuation – such
as its external obsolescence adjustment – were unreliable. (See Cert. Admin. R. at 66 ¶
26, 70 ¶¶ 36-38, 76 ¶ 53, 77 ¶ 54, 81 ¶¶ 70-71, 83-84 ¶ 78, 190.) Moreover, it determined
that CVS’s land valuation, which explained the adjustments made to the comparable
value of local properties to account for variations in buyer motivations, market conditions,
frontage, and lot size, was more probative than the Assessor’s land valuation that
contained several errors. (See Cert. Admin. R. at 65 ¶¶ 22-23, 77 ¶¶ 55-56, 83-84 ¶¶ 78-
79.) Accordingly, the Indiana Board’s final determination is supported by substantial
evidence, and the Court cannot and will not reweigh the evidence on appeal. See Kildsig
v. Warrick Cnty. Assessor, 998 N.E.2d 764, 767 (Ind. Tax Ct. 2013) (explaining that the
Court may not reweigh the evidence that was presented to the Indiana Board).
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CONCLUSION
For the above stated reasons, the Indiana Board’s final determination in this matter
is AFFIRMED.
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