ATTORNEY FOR PETITIONER:               ATTORNEY FOR RESPONDENT:
STUART T. BENCH                        MARILYN S. MEIGHEN
BENCH LAW OFFICE                       ATTORNEY AT LAW
Indianapolis, IN                       Carmel, IN
______________________________________________________________________

                                 IN THE                                         FILED
                           INDIANA TAX COURT                                Jun 7 2016, 12:42 pm

                                                            CLERK
______________________________________________________________________
                                                       Indiana Supreme Court
                                                                               Court of Appeals
                                                                                and Tax Court
KATHRYN GILLETTE,                                   )
                                                    )
       Petitioner,                                  )
                                                    )
                      v.                            ) Cause No. 49T10-1305-TA-00053
                                                    )
BROWN COUNTY ASSESSOR,                              )
                                                    )
       Respondent.                                  )


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

                                     FOR PUBLICATION
                                       June 7, 2016

WENTWORTH, J.

       Kathryn Gillette challenges the final determination of the Indiana Board of Tax

Review that valued her real property at $592,000 for the 2009 tax year.1 Upon review,

the Court affirms the Indiana Board’s final determination.

                           FACTS AND PROCEDURAL HISTORY

       Gillette owns rental property on Sweetwater Lake in Nineveh, Indiana. In 2009,

1
  While Gillette maintains she is appealing her 2008 through 2012 assessments, her Petition for
Review to the Indiana Board and the Indiana Board’s final determination address the propriety
of her 2009 assessment alone. (Compare Pet’r V. Pet. at 3 and Pet’r Br. at 4, 7, 13 with Cert.
Admin. R. at 2-4, 18-25.) Consequently, the Court will review only Gillette’s 2009 assessment.
See IND. CODE § 33-26-6-3(b) (2016) (limiting the Court’s review to the issues raised by litigants
during the Indiana Board proceedings or the issues considered in the Indiana Board’s final
determination).
that property was assigned an assessed value of $636,500 ($102,400 for land and

$534,100 for improvements). Believing this value to be too high, Gillette appealed her

assessment first to the Brown County Property Tax Assessment Board of Appeals and

then to the Indiana Board.

      On January 8, 2013, the Indiana Board conducted a hearing during which it

determined that the Brown County Assessor bore the burden of proof because Gillette’s

assessment had increased by more than 5% from 2008 to 2009. (See Cert. Admin. R.

at 99-103.) The Assessor indicated, however, she could not make a prima facie case to

support the 2009 assessment and asked the Indiana Board to reinstate Gillette’s 2008

assessment of $592,000. (See Cert. Admin. R. at 113-15.)

      Gillette, on the other hand, claimed that her 2008 assessment of $592,000 was

too high because her property was only worth about $440,000 in 2009. (See, e.g., Cert.

Admin. R. at 115, 142.) In support of her claim, Gillette testified that her land was worth

about $40,000 because 80% of it abutted the road instead of the lake, and as a result, it

often collected leaves and garbage. (See Cert. Admin. R. at 131-36.) Regarding the

improvements, Gillette presented her rental insurance policy declarations, which

indicated that for 2005 through 2012 the liability limits to rebuild her house were

between $275,300 to $475,215. (See Cert. Admin. R. at 68-78, 124.) Gillette also

presented two appraisals prepared for mortgage companies that valued her property at

$260,000 as of September 1, 1998 and $482,000 as of April 21, 2006. (See Cert.

Admin. R. at 40-67.) Finally, Gillette maintained that she could not sell her property for

more than $600,000 and could not rent it for $2,500 per month, which indicated that its

rental value was less than $250,000. (See, e.g., Cert. Admin. R. at 36, 81, 83, 90-94,



                                            2
122, 135-43.)

       On April 5, 2013, the Indiana Board issued its final determination stating that the

Assessor had “admitted [that Gillette’s] assessment should be reduced to $592,000[,]”

the amount of the 2008 assessed value, for the 2009 tax year. (Cert. Admin. R. at 24 ¶

20.) In addition, the Indiana Board found that Gillette had “failed to make a prima facie

case for any assessed value less than that amount” because she “did not provide

substantial, probative evidence to support her claim[.]” (See Cert. Admin. R. at 22-24

¶¶ 19-20 (emphasis added).)        Accordingly, the Indiana Board changed the 2009

assessed value to the prior year’s assessed value of $592,000, “consistent with other

Board final determinations where the Respondent failed to satisfy the burden imposed

by Ind[iana] Code § 6-1.1-15-17.2.” (Cert. Admin. R. at 22 ¶ 18.)

       On May 20, 2013, Gillette initiated this original tax appeal. The Court heard oral

argument on June 2, 2014. Additional facts will be supplied as necessary.

                                STANDARD OF REVIEW

       The party seeking to overturn an Indiana Board final determination 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). The Court will reverse an Indiana

Board final determination 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 of or short of statutory jurisdiction, authority, or limitations; without

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

evidence. See IND. CODE § 33-26-6-6(e)(1)-(5) (2016).




                                             3
                                         ANALYSIS

       On appeal, Gillette claims that the Indiana Board’s final determination must be

reversed for two alternative reasons. First, Gillette contends that the Indiana Board

erred in adopting a valuation derived from the cost approach rather than the income

approach. (See Pet’r Br. at 1, 6-14.) Alternatively, Gillette claims that the Indiana

Board erred in rejecting her entire evidentiary presentation.2 (See Pet’r Br. at 1, 12-15;

Oral Arg. Tr. at 8-10.)

                                              I.

       This Court has previously explained that Indiana assesses real property on the

basis of its market value-in-use: i.e., “the value ‘of a property for its current use, as

reflected by the utility received by the owner or a similar user, from the property[.]’”

McKeeman v. Steuben Cnty. Assessor, 10 N.E.3d 612, 614 (Ind. Tax Ct. 2014) (quoting

2002 REAL PROPERTY ASSESSMENT MANUAL (Manual) (incorporated by reference at 50

IND. ADMIN. CODE 2.3-1-2 (2002 Supp.)) at 2).         See also IND. CODE § 6-1.1-31-6(c)

(2009). Although three generally accepted appraisal techniques (i.e., the cost, sales

comparison, and income approaches) may be used to appraise an individual property’s

market value-in-use, “the cost approach has historically been used in mass appraisal by

assessing officials” because “often times [they] do not have the data or time to apply all

three approaches[.]” Manual at 3; see also REAL PROPERTY ASSESSMENT GUIDELINES

FOR 2002 – VERSION A (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 & 2

(explaining how property is to be valued under the cost approach).


2
   Gillette also claimed that the Brown County Property Tax Assessment Board of Appeals
(PTABOA) erred in basing her assessment on her property’s listing price because her home
never sold. (See Pet’r Br. at 8-9, 11, 13.) The Tax Court, however, only reviews the actions of
the Indiana Board and not the PTABOA. See Ind. Tax Court Rule 2.
                                              4
      Gillette contends that the Indiana Board’s final determination is contrary to law

and must be reversed because during the Indiana Board’s proceedings she established

that she owned a rental property. (See Pet’r Br. at 7.) As a result, Gillette argues that

the Indiana Board was required to adopt a valuation derived from a variation of the

income approach, i.e., the gross rent multiplier, rather than a valuation derived from the

Assessor’s application of the cost approach. (See Pet’r Br. at 8-11.)

      To support a reduction in her property’s assessed value, Gillette had the burden

to provide the Indiana Board with market-based evidence (e.g., sales data, appraisals,

or actual construction costs) that demonstrates that the assessment does not provide

an accurate reflection of the property’s market value-in-use. Manual at 5. Gillette’s

argument that the Indiana Board erred in adopting a valuation derived from the cost

approach rather than one derived from the income approach, however, attacks merely

the methodology used to determine the 2008 assessed value and does not address the

key issue – whether $592,000 was a reasonable reflection of the property’s market

value-in-use. Accordingly, the Court finds no basis for reversing the Indiana Board’s

final determination with respect to this issue. See P/A Builders & Developers, LLC v.

Jennings Cnty. Assessor, 842 N.E.2d 899, 900-01 (Ind. Tax Ct. 2006) (providing that

Indiana’s current assessment system focuses on whether the assessed value is actually

correct, not on methodology), review denied.

                                            II.

      Gillette has also claimed that the Indiana Board’s final determination must be

reversed because it improperly rejected her entire evidentiary presentation. (See, e.g.,

Pet’r Br. at 12-15.) Gillette explained that she presented market-based evidence to the



                                            5
Indiana Board that included her rental insurance policy declarations from 2005 to 2012,

a 1998 appraisal, and a 2006 appraisal that established the value of her rental property

as $440,000 for the 2009 tax year. (See Pet’r Br. at 12-15.) Gillette also testified that

she was unable to rent her house for $2,500 or sell it for more than $600,000. (See

Pet’r Br. at 11.) Nonetheless, the Court finds this evidence is not probative, as did the

Indiana Board.

      Indiana’s assessment regulations require the 2009 assessed value of property to

reflect its value as of January 1, 2008. See 50 IND. ADMIN. CODE 21-3-3(b) (2009) (see

http://www.in.gov/legislative/iac/) (explaining that prior to 2010, a property’s March 1

assessment was to reflect its market value-in-use on January 1 of the preceding year)

(repealed 2010).   Consequently, Gillette was required to relate her evidence to the

January 1, 2008 valuation date. See, e.g., Monroe Cnty. Assessor v. Kooshtard Prop. I,

LLC, 38 N.E.3d 754, 757 (Ind. Tax Ct. 2015).         The certified administrative record

reveals, however, that Gillette did not do so. (See generally Cert. Admin. R. at 96-182.)

As a result, the Court cannot find that the Indiana Board erred in finding that Gillette’s

entire evidentiary presentation failed to make a prima facie case for any assessed value

less than $592,000.

                                     CONCLUSION

      For the above stated reasons, the Indiana Board’s final determination in this

matter is AFFIRMED.




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