ATTORNEYS FOR PETITIONER:                        ATTORNEYS FOR RESPONDENT:
JEFFREY T. BENNETT                               DAVID A. SUESS
BRADLEY D. HASLER                                BRENT A. AUBERRY
BINGHAM GREENEBAUM DOLL LLP                      BENJAMIN A. BLAIR
Indianapolis, IN                                 STEPHEN H. PAUL
                                                 BRIAN J. PAUL
                                                 FAEGRE BAKER & DANIELS LLP
                                                 Indianapolis, IN

                                                                          FILED
                               IN THE                                Aug 15 2019, 1:56 pm


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



                                               )
SWITZERLAND COUNTY ASSESSOR,                   )
                                               )
      Petitioner,                              )
                                               )
                    v.                         ) Cause No. 49T10-1705-TA-00009
                                               )
BELTERRA RESORT INDIANA, LLC,                  )
                                               )
      Respondent.                              )



ORDER ON RESPONDENT’S MOTION FOR ENFORCEMENT OF DECISION AND
                 FOR ORDER TO SHOW CAUSE

                                FOR PUBLICATION
                                 August 15, 2019
WENTWORTH, J.

      This matter is before the Court on Belterra Resort Indiana, LLC’s “Motion for

Enforcement of Decision and For Order to Show Cause.” The Court, being duly

advised in the premises, grants Belterra’s Motion.
                                 BACKGROUND

       On May 24, 2018, this Court issued an opinion that affirmed in part and

reversed in part the final determination of the Indiana Board of Tax Review valuing

Belterra Resort Indiana, LLC’s real property for purposes of the 2009 through 2014

assessments. See Switzerland Cty. Assessor v. Belterra Resort Indiana, LLC, 101

N.E.3d 895 (Ind. Tax Ct.), review denied. The Court provided instructions in its

opinion for recomputing Belterra’s assessments and remanded the matter to the

Indiana Board. Id. at 909. See also Switzerland Cty. Assessor v. Belterra Resort

Indiana, LLC, No. 49T10-1705-TA-00009 (Ind. Tax Ct. Jan. 25, 2019) (order granting

Assessor’s Motion for Clarification of Remand Status).    On March 7, 2019, the

Indiana Board issued an “Order on Remand” instructing the Assessor to enter

assessments that complied with the Court’s instructions. (See Resp’t Mot. Enf’t

Decision & Order Show Cause (“Belterra’s Mot.”), Ex. 3 at 2 ¶ 7.) In doing so,

however, the Indiana Board stated its belief that it was only required to order an

assessment, not to actually oversee the recomputation process. (See Belterra’s

Mot., Ex. 3 at 2 ¶ 7.)

       When, by June 7, 2019, no assessments had yet been entered, Belterra, by

counsel, filed its Motion asking the Court to enforce its May 24, 2018, decision by

issuing an order to show cause why its decision had not been executed. On June

17, 2019, the Switzerland County Assessor, by counsel, responded by asserting that

the Court lacked subject matter jurisdiction to decide the Motion. (See Pet’r Br.

Resp. Mot. Enforcement Decision & Order Show Cause (“Assessor’s Br.”) at 4-9.)




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       On July 9, 2019, after the Motion had been fully briefed and was pending

before the Court, the Assessor filed a “Motion for Leave to File Surreply to [Belterra’s

Motion]” claiming that on July 3, 2019, final assessed values had been assigned to

Belterra’s property and the process for issuing refunds to Belterra had already been

consummated. (See Pet’r Mot. Leave File Surreply Mot. Enf’t Decision & Order

Show Cause (“Assessor’s Surreply”) at 2 ¶ 3.) As a result, the Assessor argued,

“any disagreement Belterra has with the refund amount must [now] be resolved by a

court of competent jurisdiction located in Switzerland County[.]”          (Assessor’s

Surreply at 2 ¶ 4.)

                                         LAW

       This Court exercises exclusive jurisdiction over cases that arise under

Indiana’s tax laws and are initial appeals of final determinations of the Indiana

Board. IND. CODE § 33-26-3-1 (2019). If, in the course of exercising its jurisdiction,

the Court determines that an Indiana Board final determination cannot be affirmed, it

must remand the matter to the Indiana Board with instructions. IND. CODE § 6-1.1-

15-8(a) (2018).       Pursuant to those instructions, the Indiana Board may conduct

further proceedings and correct the assessment itself or refer the matter to the

county property tax assessment board of appeals to make another assessment. I.C.

§ 6-1.1-15-8(a); IND. CODE § 6-1.1-15-9(a) (2018).         Either way, the corrected

assessment is subject to appeal. See I.C. § 6-1.1-15-9 (providing that if the Indiana

Board corrects the assessment, the taxpayer or the assessor has the right to appeal

from the Indiana Board’s “final determination” to the Tax Court). See also IND. CODE

§§ 6-1.1-15-1.2, -2.5, -3 (2018) (indicating that the “final determinations” of county



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property tax assessment boards of appeals are reviewed by the Indiana Board,

whose final determinations are then reviewed by the Tax Court). The right to appeal

a corrected assessment is triggered upon proper notice. See, e.g., I.C. §§ 6-1.1-15-

1.2(j), -3(b), (d); IND. CODE § 6-1.1-15-5-(b), (c) (2018).

                                       ANALYSIS

       Belterra’s Motion requests that the Court enforce its May 24, 2018, decision

by ordering compliance with the instructions in its decision. (See Belterra’s Mot. at

1, 6.) The Assessor has argued in opposition that 1) the Indiana Board’s Order on

Remand was the “final disposition” of Belterra’s case and Belterra was therefore

appealing a claim for refund both prematurely and in the wrong court; 2) if the

Indiana Board’s Order on Remand was not a final disposition, Belterra’s remedy was

with the Indiana Board, not the Tax Court; or 3) the Court’s jurisdiction was never

invoked because the Indiana Board’s Order on Remand did not use the words “refer”

or “referral” specifically used under Indiana Code § 6-1.1-15-8. (See Assessor’s Br.

at 4-9.)

                                            1.

       The Assessor first argues that the Indiana Board’s Order on Remand or the

purported assignment of final assessed values was the final disposition of the case,

thereby converting the matter to a claim for refund that is properly resolved by a

court of general jurisdiction in Switzerland County.          (Assessor’s Br. at 4-6;

Assessor’s Surreply at 2 ¶ 4.) The Assessor, however, did not present any evidence

that either was a final disposition and Belterra was not provided notice that included

its appeal rights – a necessary component of a final disposition.          (Compare



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Assessor’s Surreply, Exs. A, B and Belterra’s Mot., Ex. 3 with I.C. §§ 6-1.1-15-1.2(j),

-3(b), (d); I.C. § 6-1.1-15-5-(b), (c) and Resp’t Reply [Assessor’s Surreply] at 3

(where Belterra asserts it never received any notice of appeal rights).) Accordingly,

this matter is still in the Court-ordered remand phase and has not reached the point

of final disposition.   This Court – like every other court in this State – retains

jurisdiction over its cases until their final disposition (which includes the enforcement

of its own orders, judgments, and decrees). See, e.g., Fackler v. Powell, 839 N.E.2d

165, 167 (Ind. 2005); Skendzel v. Marshall, 330 N.E.2d 747, 749 (Ind. 1975); Lake-

O’-The Woods Club v. Martinal, 154 N.E.2d 498, 500 (Ind. 1958); Town of St. John

v. State Bd. of Tax Comm’rs, 729 N.E.2d 242, 245 (Ind. Tax Ct. 2000). The Court

therefore rejects the Assessor’s claim that it lacks the subject matter jurisdiction to

rule on Belterra’s Motion on this basis.

                                            2.

       Second, the Assessor claims that the Court lacks subject matter jurisdiction

even if the Indiana Board did not issue a final disposition because the Judgment

Entry issued concurrently with the Court’s May 24, 2018, decision makes it clear that

jurisdiction lies with the Indiana Board on remand, not the Tax Court. (Assessor’s

Br. at 6-7.) The Court rejects this claim as well. See, e.g., Skendzel, 330 N.E.2d at

749 (stating that “[w]hen an appellate court remands a cause to the trial court with

instructions for further proceedings, the appellate court retains jurisdiction to see that

its instructions are carried out”).




                                            5
                                          3.

      Finally, the Assessor states that the Court’s jurisdiction was never properly

invoked because the Indiana Board’s Order on Remand did not “refer” the matter, or

make a “referral,” to the county property tax assessment board of appeals as

required by Indiana Code § 6-1.1-15-8(a). (Assessor’s Br. at 7-9.) The Assessor

asserts that the Indiana Board’s failure to use the words “refer” or “referral” removes

the grounds for the Court to police compliance with the Indiana Board’s Order on

Remand under Indiana Code § 6-1.1-15-8(c).           (Assessor’s Br. at 8-9.)      The

Assessor’s arguments are hollow, however, because “[c]ourts inherently possess the

power to enforce their orders and decrees, and such authority is not dependent upon

statutory enactments authorizing the same.” Lake-O’-The Woods Club, 154 N.E.2d

at 500.

      “Upon remand, the Indiana [B]oard may take action only on those issues

specified in the decision of the [T]ax [C]ourt.” I.C. § 6-1.1-15-8(a). Accordingly, it

was not sufficient for the Indiana Board to simply order the Assessor to prepare a

compliant assessment in this case. Indeed, the Indiana Board must ensure that the

Court’s instructions contained in its May 24, 2018, opinion have been specifically

carried out. This oversight process guarantees that the Indiana Board – Indiana’s

assessment and property tax expert – has determined the accuracy of a corrected

assessment, reducing the possibility that additional judicial resources must be

expended. Moreover, as a practical matter, the Indiana Board’s oversight insulates




                                          6
an assessor – typically a party in property assessment cases – from the appearance

that she advanced her own self-interest.1

                                    CONCLUSION

       For the reasons stated above, the Court rejects the Assessor’s claims that the

actions that have occurred on remand in this matter have divested this Court of its

subject matter jurisdiction to both clarify and enforce its May 24, 2018, judgment and

GRANTS Belterra’s Motion. Moreover, the Court ORDERS the Indiana Board to

verify and provide written notice to the parties in this case that the corrected

assessments comply with the Court’s instructions for correcting the assessments in

its May 24, 2018, decision. Those instructions explicitly stated:



                             Belterra’s 2009 Assessment

    1) Start with the 2008 assessed value of the entire property;

    2) Remove from that value the portion attributable to the Riverboat
       and replace it with $4,327,000 (i.e., Herman’s appraised value).


                            Belterra’s 2014 Assessment

    1) Start with the 2008 assessed value of the entire property;

    2) Remove from that value the portion attributable to the Riverboat
       and replace it with $3,500,000 (i.e., Herman’s appraised value);




1
 Here, the Assessor’s post-decision actions and claims appear to be intended to reduce the
adverse effects of the Court’s decision. First, the Assessor conjured an ambiguity in the
Court’s instructions for calculating the corrected assessments where there was none. Then,
when corrected values were issued presumably based on that conjured ambiguity, the
Assessor invented procedural infirmities to prevent the Court from enforcing its decision.
Taxpayers deserve more than taxation by trickery, and the Court will not countenance such
actions.
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   3) Also, remove from the 2008 assessed value of the entire property the
      portion attributable to the Golf Course and replace it with $3,000,000
      (i.e., Herman’s appraised value).

Switzerland Cty. Assessor, 101 N.E.3d at 909.



      SO ORDERED this 15th day of August 2019.




                                                Martha Blood Wentworth, Judge
                                                Indiana Tax Court




Distribution:
David A. Suess, Brent A. Auberry, Benjamin A. Blair, Stephen H. Paul, Brian J. Paul,
Jeffrey T. Bennett, Bradley D. Hasler, the Indiana Board of Tax Review




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