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
_____________________________________________________________________
                                                                   May 12 2015, 2:27 pm
PROPERTY DEVELOPMENT                  )
COMPANY FOUR, LLC,                    )
                                      )
     Petitioner,                      )
                                      )
                 v.                   )   Cause No. 49T10-1401-TA-3
                                      )
GRANT COUNTY ASSESSOR,                )
                                      )
     Respondent.                      )
_____________________________________________________________________

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

                                  FOR PUBLICATION
                                    May 12, 2015

WENTWORTH, J.

      Property Development Company Four, LLC appeals the Indiana Board of Tax

Review’s final determination that upheld the Grant County Assessor’s assessments of

its real property for the 2004, 2005, and 2006 tax years. The Court finds that the

Indiana Board’s final determination should be affirmed in part and reversed in part.

                        FACTS AND PROCEDURAL HISTORY

      Property Development builds homes for the disabled. (See Cert. Admin. R. at 8,
183.) In 2003, Property Development purchased a parcel of land in the Hickory Hills

Subdivision, Marion, Indiana (“the Eastway Drive Property”) and another parcel of land

in the Meadows East Subdivision, Marion, Indiana (“the Aspen Court Property”). (See

Cert. Admin. R. at 83, 94, 120, 124-25.) These two properties are the subject of this

appeal.

       At the time of purchase, the subject properties were vacant and assessed as

agricultural land.   (See Cert. Admin. R. at 120, 124-25, 272.)       After obtaining the

necessary building permits, Property Development built a home on each parcel. (See

Cert. Admin. R. at 84, 184, 186.) The Assessor did not assess the subject properties at

that time, however, because she did receive the building permits and, therefore, did not

have notice that construction had even begun. (See Cert. Admin. R. at 152, 265-66.)

       On July 11, 2006, the Assessor assessed the Eastway Drive Property for the

2004 and 2005 tax years.      (See Cert. Admin. R. at 124-27.)       That same day, the

Assessor mailed two “Reports of Assessment for Omitted or Undervalued Property

Assessment and Assessment Penalties” (Form 122s) to Property Development, which

provided that the property’s assessments had been increased from $16,800 to

$107,300 for the 2004 and 2005 tax years. (See Cert. Admin. R. at 126-27.)

       The following year, the Assessor assessed the Aspen Court Property for the

2004, 2005, and 2006 tax years. (See Cert. Admin. R. at 120-23.) On July 30, 2007,

the Assessor mailed three Form 122s to Coronado Ridge Development Corporation, the

prior owner of the Aspen Court Property,1 which indicated that its assessments had


1
  The Assessor explained that her records listed Coronado Ridge as the owner of the Aspen
Court Property because county officials failed to provide her with the information that the
property was transferred from Coronado Ridge to Property Development and because the Form
122s were not returned as undeliverable. (See Cert. Admin. R. at 152, 154, 248-49, 262-65.)
                                            2
been increased from $200 to $87,800 for the 2004, 2005, and 2006 tax years. (See

Cert. Admin. R. at 121-23.) Although Coronado Ridge typically received and forwarded

the tax bills for the Aspen Court Property to Property Development’s president, it did not

forward the Form 122s to Property Development. (See Cert. Admin. R. at 44, 47, 84.)

         In the years following the assessments, Property Development paid the tax

liabilities on its properties as they became due. (See Cert. Admin. R. at 43, 184, 186.)

Not until 2010, however, did the Grant County Treasurer attempt for the first time to

recover from Property Development the additional tax liabilities, penalties, and fees

arising from the 2004, 2005, and 2006 assessments of the subject properties. (See

Cert. Admin. R. at 43-44, 84-85, 86-92, 98-115.)

         Property Development subsequently appealed the assessments, first to the

Grant County Property Tax Assessment Board of Appeals and then to the Indiana

Board.     On September 12, 2013, the Indiana Board held a hearing during which

Property Development claimed that the assessments were invalid because they

conflicted with Indiana Code § 6-1.1-4-12 and because the Assessor failed to provide

proper notice. The Assessor, on the other hand, argued that Indiana Code § 6-1.1-9-1

et seq. authorized the assessments and that Property Development’s claim of

insufficient notice lacked merit. On December 10, 2013, the Indiana Board issued a

final determination upholding the assessments of the Eastway Drive Property as well as

the 2005 and 2006 assessments of the Aspen Court Property under Indiana Code § 6-

1.1-9-1 et seq.    (See Cert. Admin. R. at 39-40.)      The Indiana Board determined,

however, that the 2004 assessment of the Aspen Court Property had been untimely and

was therefore invalid. (See Cert. Admin. R. at 39-40.) Moreover, the Indiana Board



                                            3
rejected Property Development’s claim of insufficient notice.2 (See Cert. Admin. R. at

40-42.)

       On January 23, 2014, Property Development initiated this original tax appeal.

The Court heard oral argument on June 19, 2014. 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 to demonstrate that it is invalid.       Hubler Realty Co. v. Hendricks Cnty.

Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct. 2010). The Court will reverse a final

determination of the Indiana Board if it is arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; contrary to constitutional right, power, privilege, or

immunity; in excess or short of statutory jurisdiction, authority, or limitations; without

observance of procedure required by law; or unsupported by substantial or reliable

evidence. IND. CODE § 33-26-6-6(e)(1)-(5) (2015).

                                         ANALYSIS

       Property Development has asked this Court to reverse the final determination of

the Indiana Board for two main reasons. First, Property Development contends that the

Indiana Board misapplied the law when it upheld the assessments. Second, Property

Development asserts that the Indiana Board erred in concluding that Property




2
  The Indiana Board also determined that the burden-shifting rule set forth in Indiana Code § 6-
1.1-15-17.2 did not apply because Property Development had not challenged the assessed
values of the subject properties. (See Cert. Admin. R. at 38, 83-84.)


                                               4
Development received proper notice of the assessments.3

                                              I.

       Property Development asserts that the Indiana Board erred in determining that

the assessments of the subject properties were authorized under Indiana Code § 6-1.1-

9-1 et seq. because a more specific statute, Indiana Code § 6-1.1-4-12, applied instead.

(See Pet’r Br. at 13-16; Oral Arg. Tr. at 54-56.) Property Development explains that

while Indiana Code § 6-1.1-9-4 applies generally to omitted or undervalued real property

assessments, Indiana Code § 6-1.1-4-12 applies specifically to subdivision property

assessments. (See Pet’r Br. at 13-16.) Property Development further explains that if its

properties had been assessed under Indiana Code § 6-1.1-4-12, the statute’s plain

terms would have compelled her to apply the assessments prospectively only, not

retroactively. (See Pet’r Br. at 15-16; Pet’r Reply Br. at 8-9.)

       It has long been held that “a more detailed and specific statute prevails over a

more general statute [that addresses the same subject matter] when the two conflict.”

State ex rel. Hatcher v. Lake Sup. Ct., Room Three, 500 N.E.2d 737, 739 (Ind. 1986).

Indiana Code § 6-1.1-9-4 and Indiana Code § 6-1.1-4-12 both authorize the assessment

of property. When the subject properties were assessed in 2006 and 2007, Indiana

Code § 6-1.1-9-4 provided that “property may be assessed, or its assessed value

increased, for a prior year under this chapter only if the notice required by [Indiana Code

§ 6-1.1-9-1] is given within three (3) years after the assessment date for that prior year.”

IND. CODE § 6-1.1-9-4(a) (2006) (emphasis added).             By incorporating the notice

requirement in Indiana Code § 6-1.1-9-1, Indiana Code § 6-1.1-9-4 applies to all omitted

3
   Property Development has also claimed that the imposition of penalties and fees was
improper because the tax bills were not timely mailed. (See Pet’r Br. at 12.) The Court,
however, does not address this issue due to its resolution of this case.
                                              5
or undervalued real property assessments and authorizes their limited retroactive

assessment. See I.C. § 6-1.1-9-4(a); IND. CODE § 6-1.1-9-1 (2006) (amended 2007). In

contrast, Indiana Code § 6-1.1-4-12 provided that when

          (1) land assessed on an acreage basis is subdivided into lots; or (2)
          land is rezoned for, or put to, a different use; the land shall be
          reassessed on the basis of its new classification. []If improvements
          are added to real property, the improvements shall be assessed.
          []An assessment or reassessment made under this section is
          effective on the next assessment date.

IND. CODE § 6-1.1-4-12(d)-(f) (2006) (amended 2013). Thus, this statute authorizes the

assessment of certain property (e.g., agricultural land) when an objective event

signaling the commencement of commercial development occurs. See Hamilton Cnty.

Assessor v. Allisonville Rd. Dev., LLC, 988 N.E.2d 820, 823-24 (Ind. Tax Ct. 2013),

review denied.

      The application of each of these statutes is triggered by different factual

circumstances, and neither statute indicates that the application of one precludes an

assessment under the other. See I.C. §§ 6-1.1-4-12, -9-4; see also, e.g., Indiana Dep’t

of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994) (explaining that

the plain and obvious meaning of an unambiguous statute may not be enlarged or

restricted). Consequently, comparing Indiana Code § 6-1.1-4-12 and Indiana Code § 6-

1.1-9-4 does not indicate that the former is more specific than the latter, but instead,

merely authorizes the assessment of property based on different factual circumstances.

      The facts of this case reveal that Property Development constructed a home on

each of the subject properties in 2003, but the Assessor did not assess the Eastway

Drive Property until 2006 and the Aspen Court Property until 2007. The Assessor then

applied each assessment retroactively according to Indiana Code § 6-1.1-9-4 because

                                           6
the improvements were omitted from the assessment rolls post-construction. See I.C. §

6-1.1-9-4(a) (permitting retroactive assessments of real property in instances where the

property was undervalued on, or omitted from, the assessment rolls or tax duplicates).

The fact that these properties could have been assessed when they were subdivided for

development under Indiana Code § 6-1.1-4-12 cannot preclude their retroactive

assessment, as Property Development urges, because doing so would defeat the

purpose of Indiana Code § 6-1.1-9-4. See Johnson Cnty. Farm Bureau Coop. Ass’n v.

Indiana Dep’t of State Revenue, 568 N.E.2d 578, 583-84 (Ind. Tax Ct. 1991) (explaining

that the Court will construe a statute to give effect, rather than to defeat, its purpose),

aff’d by 585 N.E.2d 1336 (Ind. 1992). Consequently, Property Development has not

shown that the Indiana Board’s final determination that upheld the assessments of the

subject properties under Indiana Code § 6-1.1-9-4 was contrary to law.

                                              II.

       Property Development also contends that the Indiana Board erred in concluding

that it had received sufficient notice of the 2004 and 2005 Eastway Drive assessments

and the 2005 and 2006 Aspen Court assessments.                  More specifically, Property

Development contends that the Assessor’s notice was insufficient not only because it

failed to comport with the requirements of Indiana Code § 6-1.1-9-1, but also because

the Assessor mailed the Form 122s for the Aspen Court Property to its prior owner,

Coronado Ridge, instead of Property Development.4            (See Pet’r Br. at 17-18; Pet’r

Reply Br. at 9-11; Oral Arg. Tr. at 24-28.)

       The Assessor, on the other hand, offers two reasons why notice was proper.

4
  Property Development also contends that the notice of the assessments failed to satisfy state
and federal due process requirements. (See, e.g., Pet’r Br. at 17.) The Court does not need to
address this contention given its disposition of the issue.
                                              7
First, the Assessor argues that she provided Property Development with notice of the

subject properties’ assessments consistent with Indiana Code § 6-1.1-9-1 by issuing a

Form 122 for each property. (See Resp’t Br. at 14-17; Oral Arg. Tr. at 47-52.) Second,

the Assessor claims that even if she made a mistake in mailing the Form 122s, Property

Development should not benefit from that mistake because it failed to provide her with

the correct information in the first place. (See Resp’t Br. at 15; Oral Arg. Tr. at 45-47.)

       When the Assessor assessed the Eastway Drive Property in 2006, the relevant

notice provision stated:

          If a township assessor, county assessor, or county property tax
          assessment board of appeals believes that any taxable tangible
          property has been omitted from or undervalued on the assessment
          rolls or the tax duplicate for any year or years, the official or board
          shall give written notice under . . . IC 6-1.1-4-22 of the assessment
          or the increase in assessment. The notice shall contain a general
          description of the property and a statement describing the
          taxpayer’s right to a preliminary conference and to a review with the
          county property tax assessment board of appeals under IC 6-1.1-
          15-1.

I.C. § 6-1.1-9-1 (emphasis added). Pursuant to a 2007 amendment, the last sentence

of Indiana Code § 6-1.1-9-1 was changed to read as follows: “The notice shall contain a

general description of the property and statement describing the taxpayer’s right to a

review with the county property tax assessment board of appeals under IC 6-1.1-15-1.”

IND. CODE § 6-1.1-9-1 (2007). Indiana Code § 6-1.1-4-22 stated:

          If any assessing official or any county property tax assessment
          board of appeals assesses or reassesses any real property under
          the provisions of this article, the official or county property tax
          assessment board of appeals shall give notice to the taxpayer and
          the county assessor, by mail, of the amount of the assessment or
          reassessment.

IND. CODE § 6-1.1-4-22(a) (2006) (amended 2008). Together, these statutes provide



                                              8
that an assessing official must mail written notice of the assessment of omitted or

undervalued real property to a taxpayer that states 1) a general description of the

property; 2) the amount of the increased or new assessment; and 3) a statement

regarding the taxpayer’s right to review under Indiana Code § 6-1.1-15-1. See I.C. §§

6-1.1-4-22, -9-1. Indiana Code § 6-1.1-9-4 further indicates that this written notice must

be provided to the taxpayer within three years of the property’s assessment date. See

I.C. § 6-1.1-9-4(a).

       The certified administrative record reveals that on July 11, 2006, the Assessor

timely mailed two Form 122s to Property Development regarding the 2004 and 2005

assessments of the Eastway Drive Property. (See Cert. Admin. R. at 126-27.) The

record also shows that on July 30, 2007, the Assessor timely mailed two Form 122s

concerning the 2005 and 2006 assessments of the Aspen Court Property to Coronado

Ridge, the prior owner of the property. (See Cert. Admin. R. at 121-23.) Each of these

Form 122s contained a description of the subject properties and a statement of the

amount of the assessments. (See, e.g., Cert. Admin. R. at 121.) None of the Form

122s, however, contained statements regarding Property Development’s rights to a

preliminary conference or review under Indiana Code § 6-1.1-15-1. (See Cert. Admin.

R. at 121-23, 126-27.)    Instead, they merely contained a statement concerning the

imposition of penalties for omitted or undervalued tangible personal property. (See,

e.g., Cert. Admin. R. at 121 (stating “[a] penalty is due with an installment . . . whether

or not an appeal is filed under IC 6-1, 1-15-5 [sic] with respect to the tax due on that

installment”).)   Consequently, the Form 122s do not comport with the notice

requirements of Indiana Code § 6-1.1-9-1.



                                            9
       Nonetheless, the timely mailing of an annual tax bill may itself satisfy the notice

requirements of Indiana Code § 6-1.1-9-1. See, e.g., Williams Indus. v. State Bd. of Tax

Comm’rs, 648 N.E.2d 713, 715-16 (Ind. Tax Ct. 1995). Here, however, the tax bills

were not timely issued. Notice must be given within three years of the assessment

date, but the record shows that the tax bills were not issued until 2010 - i.e., about 6

years after the 2004 assessment, 5 years after the 2005 assessments, and 4 years after

the 2006 assessment. See I.C. § 6-1.1-9-4(a) (requiring that the notice be given within

three years after the assessment date). Consequently, Property Development’s tax bills

do not satisfy the notice requirements of Indiana Code § 6-1.1-9-1 either.

                                     CONCLUSION

       While the Indiana Board correctly determined that the Assessor was authorized

to assess the subject properties under Indiana Code § 6-1.1-9-1 et seq., it erred in

determining that Property Development had received sufficient notice of those

assessments. The Court, therefore, AFFIRMS the Indiana Board’s final determination

in part, REVERSES it in part, and REMANDS the matter to the Indiana Board for action

consistent with this opinion.




                                           10
