Property Development Company Four, LLC v. Grant County Assessor , 42 N.E.3d 182 ( 2015 )

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 Aug 20 2015, 3:45 pm
PROPERTY DEVELOPMENT )
COMPANY FOUR, LLC, )
)
Petitioner, )
)
v. ) Cause No. 49T10-1401-TA-00003
)
GRANT COUNTY ASSESSOR, )
)
Respondent. )
ORDER ON RESPONDENT’S PETITION FOR REHEARING
FOR PUBLICATION
August 20, 2015
WENTWORTH, J.
On May 12, 2015, this Court reversed, in part, the Indiana Board of Tax Review’s
final determination in the above-captioned matter. See Property Dev. Co. Four, LLC v.
Grant Cnty. Assessor, 31 N.E.3d 1049 (Ind. Tax Ct. 2015). In its opinion, the Court held
that the Grant County Assessor’s retroactive assessments of Property Development
Company Four, LLC’s real property were invalid because Property Development had
not received sufficient notice of the assessments and the property tax liabilities arising
therefrom. See id. at 1052-54. The Assessor has filed a Petition for Rehearing
pursuant to Rule 63(B) of Indiana’s Rules of Appellate Procedure. The Assessor’s
Petition presents two issues that the Court restates as: 1) whether the Court omitted a
material fact when it determined that Property Development received insufficient notice;
and, if not, 2) whether the Court erred in invalidating the assessments. The Court,
having reviewed the Assessor’s Petition and Property Development’s response thereto,
grants the Assessor’s Petition for the sole purpose of clarifying its opinion.
1. The Omission of a Material Fact
In its Petition, the Assessor claims that the Court erred in determining that
Property Development received insufficient notice of its assessments because the Court
did not consider a material fact, i.e., that Property Development received Form 11s that
contained a statement, missing from the Form 122s, explaining the right to review under
Indiana Code § 6-1.1-15-1. (See Resp’t Pet. Reh’g at 2-4.) To support this claim, the
Assessor has presented a certified copy of a blank Form 11. (See Resp’t Pet. Reh’g,
Exs. A, A1.)
The certified administrative record in this case indicates that the Assessor “filled
out” a Form 11 for one of properties at issue. (See, e.g., Cert. Admin. R. at 36 ¶ 12(b),
129.) That Form 11, however, was not presented to the Indiana Board during the
administrative hearing. (See, e.g., Cert. Admin. R. at iii.) When a litigant fails to present
evidence to the Indiana Board, the Court may not consider that evidence on appeal. 1
See Hoogenboom-Nofziger v. State Bd. of Tax Comm’rs, 715 N.E.2d 1018, 1022 (Ind.
Tax Ct. 1999). Consequently, the Court cannot consider the certified copy of the blank
1
Indiana Code § 33-26-6-5 provides certain exceptions to this rule, but none of those
exceptions are applicable in this case. See IND. CODE 33-26-6-5(b) (2015).
2
Form 11. The Assessor has conceded that the Court correctly determined that the
documents contained within the certified administrative record (i.e., the Form 122s) did
not confer sufficient notice because each lacked a statement regarding Property
Development’s right to review. (See Resp’t Pet. Reh’g at 2.) The Court, therefore, finds
that it did not err by omitting a material fact when it determined that Property
Development received insufficient notice.
2. The Invalidation of the Assessments
Next, the Assessor claims that the Court erred in invalidating the assessments
because that remedy was “too extreme[.]” (Resp’t Pet. Reh’g at 4.) The Assessor
asserts that Indiana case law simply required the Court to provide Property
Development with additional time to challenge the assessments, not invalidate them.
(See Resp’t Pet. Reh’g at 4-6 (citing Groce v. State, 778 N.E.2d 785, 787 (Ind. 2002);
State v. Hammond, 761 N.E.2d 812, 815-16 (Ind. 2002); Stewart v. State, 721 N.E.2d
876, 879-80 (Ind. 1999)).)
A petition for rehearing is a vehicle that affords the Court the opportunity to
correct its own omissions or errors. Indiana Dep’t of State Revenue vs. Estate of Miller,
897 N.E.2d 545, 546 (Ind. Tax Ct. 2008), review denied. Accordingly, a proper petition
should not ask the Court to re-examine all questions decided against the petitioning
litigant nor should it present new arguments or theories in support of that party’s
position. See id.; New York Life Ins. Co. v. Henriksen, 421 N.E.2d 1117, 1118 (Ind. Ct.
App. 1981). This, however, is exactly what the Assessor has done by claiming that the
Court applied the wrong remedy.
Nonetheless, even if the Assessor’s claim were properly before the Court, the
3
Court would not change the remedy it applied in this case. The three cases upon which
the Assessor has relied to support its position (i.e., Groce, Hammond, and Stewart) do
not apply here. Indeed, the issue in those cases examined the effect of underlying
administrative defects (i.e., defective notice) on criminal convictions, but the overlay of
criminal convictions is absent in this matter. Compare, e.g., Stewart, 721 N.E.2d at
878-80 and Hammond, 761 N.E.2d at 814-16 with Property Dev., 31 N.E.3d at 1049-54.
This contextual distinction diminishes the persuasive value of those cases here.
Furthermore, this Court has previously held that the failure to follow procedural rules is
sufficient to invalidate an assessment. See, e.g., Garwood v. Indiana Dep’t of State
Revenue, 953 N.E.2d 682, 687-90 (Ind. Tax Ct. 2011) (invalidating a taxpayer’s
jeopardy assessments because the administrative agency lacked the statutory authority
to issue them), review denied. For all of the above-stated reasons, therefore, the Court
reaffirms its holding in Property Development in its entirety.
SO ORDERED this 20th day of August 2015.
__________________________
Martha Blood Wentworth
Judge, Indiana Tax Court
Distribution:
Paul K. Ogden, Jeffrey R. Cox, Evan W. Bartel, Jonathan R. Sichtermann
4