ATTORNEY FOR PETITIONER:                            ATTORNEYS FOR RESPONDENT:
TIMOTHY J. VRANA                                    MARILYN S. MEIGHEN
TIMOTHY J. VRANA LLC                                ATTORNEY AT LAW
Columbus, IN                                        Carmel, IN

                                       BRIAN A. CUSIMANO
                                       ATTORNEY AT LAW
                                       Indianapolis, IN
_____________________________________________________________________

                                IN THE
                          INDIANA TAX COURT
_____________________________________________________________________
                                                       Jul 02 2015, 2:11 pm

KOOSHTARD PROPERTY I, LLC,            )
                                      )
     Petitioner,                      )
                                      )
                 v.                   )   Cause No. 49T10-1404-TA-00015
                                      )
MONROE COUNTY ASSESSOR,               )
                                      )
     Respondent.                      )
______________________________________________________________________

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

                                   FOR PUBLICATION
                                      July 2, 2015

FISHER, Senior Judge

       Kooshtard Property I, LLC has challenged the Indiana Board of Tax Review’s

final determination that valued its land at $1,050,000 for the 2010 tax year.1 The Court

affirms.




1
   In a decision issued concurrently with this one, the Court has affirmed the Indiana Board’s
final determination that reduced Kooshtard’s land assessments from $1,200,000 to $300,000 for
the 2008, 2009, and 2011 tax years. See Kooshtard Prop. I, LLC v. Monroe Cnty. Assessor,
No. 49T10-1211-TA-00071 (Ind. Tax Ct. July 2, 2015).
                         FACTS AND PROCEDURAL HISTORY

       Kooshtard owns and operates a gas station and convenience store on a three-

acre parcel of land in Bloomington, Indiana. For the 2010 tax year, the Monroe County

Assessor assigned Kooshtard’s land an assessed value of $1,200,000.

       Kooshtard appealed the land assessment first with the Monroe County Property

Tax Assessment Board of Appeals and then with the Indiana Board.2 On December 18,

2013, the Indiana Board conducted a hearing during which Kooshtard submitted, among

other things, a Summary Appraisal Report, completed in conformance with the Uniform

Standards of Professional Appraisal Practice (USPAP).               The Appraisal valued

Kooshtard’s land at $300,000 based on comparable sales data. (See Cert. Admin. R. at

72-124.)

       In response, the Assessor presented, among other things, a Real Estate

Appraisal Report that was completed in conformance with USPAP. (See Cert. Admin.

R. at 310-27.) The Assessor’s Appraisal, prepared by Wayne Johnson, an Indiana

certified general appraiser,3 valued Kooshtard’s entire property at $1,500,000 under the

cost approach ($1,050,000 for land and $450,000 for improvements), $1,400,000 under

the sales comparison approach, and $1,450,000 under the income approach. (See

Cert. Admin. R. at 321-23.) In addition, Johnson testified that Kooshtard’s Appraisal

used unreliable sales data in arriving at its $300,000 value.         Specifically, Johnson

pointed out that: 1) the first sale contained improvements, but there were relevant sales

of vacant land; 2) the second sale was located in a limited zoning area, unlike

2
  While Kooshtard also appealed its 2012 land assessment, this original tax appeal does not
concern that assessment. (See Pet’r Br. at 1; Oral Arg. Tr. at 4.)
3
  Johnson is also a certified member of the Appraisal Institute (MAI). (See Cert. Admin. R. at
324.)
                                              2
Kooshtard’s property, and was tied to the sale of another property; 3) the third sale was

a forced sale; and 4) the final sale required significant development for its intended use.

(See Cert. Admin. R. at 364-71.)

       On March 14, 2014, the Indiana Board issued a final determination explaining

that it found Johnson’s testimony regarding the unreliability of Kooshtard’s Appraisal

persuasive. (See Cert. Admin. R. at 38-39 ¶¶ 57.) The Indiana Board also explained

that the Assessor’s Appraisal best reflected the value of Kooshtard’s property even

though it contained certain flaws. (See Cert. Admin. R. at 40-41 ¶¶ 62-67 (explaining

that the Assessor’s Appraisal erroneously included the value of personal property).)

Accordingly, the Indiana Board reduced Kooshtard’s 2010 land assessment from

$1,200,000 to $1,050,000, which coincided with Johnson’s valuation of the land under

the cost approach. (Compare Cert. Admin. R. at 40-41 ¶¶ 63, 68 with 321.)

       On April 24, 2014, Kooshtard initiated this original tax appeal. The Court heard

oral argument on January 23, 2015. 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. Hubler Realty Co. v. Hendricks Cnty. Assessor,

938 N.E.2d 311, 313 (Ind. Tax Ct. 2010). The Court will reverse a 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. IND. CODE § 33-26-

6-6(e)(1)-(5) (2015).



                                            3
                                         ANALYSIS

       On appeal, Kooshtard asks the Court to reverse the Indiana Board’s final

determination, claiming that the Assessor’s Appraisal was so flawed that it was not

probative and, therefore, could not be used to support the final determination. (See

Pet’r Br. at 1; Pet’r Reply Br. at 1.) More specifically, Kooshtard restates two of the

arguments that it presented to the Indiana Board: 1) the Assessor’s Appraisal is not

probative because it made no adjustments for properties sold under land contracts; and

2) the Assessor’s Appraisal is not probative because it included the value of personal

property in estimating the value of Kooshtard’s land.4 (Compare Pet’r Br. at 2-4; Pet’r

Reply Br. at 3 and Oral Arg. Tr. at 14-16 with Cert. Admin. R. at 394-400, 404-05.)

       Kooshtard’s arguments regarding the probative value of the Assessor’s Appraisal

invite this Court to reweigh evidence; that task, however, is not within this Court’s

prerogative on appeal absent an abuse of discretion. See Stinson v. Trimas Fasteners,

Inc., 923 N.E.2d 496, 498-99 (Ind. Tax Ct. 2010). The Indiana Board has abused its

discretion when its final determination is clearly against the logic and effect of the facts

and circumstances before it or when it misinterprets the law. See Hubler, 938 N.E.2d at

315, n.5.

       With respect to the land contracts issue, the administrative record reveals that

Johnson testified that he was not required to adjust the sales prices of certain properties


4
   In addition, Kooshtard claims on appeal that the Assessor’s Appraisal is not probative
because it used non-comparable properties (i.e., non-convenience stores at the time of sale) in
valuing Kooshtard’s land and it included a sale beyond the appropriate valuation period. (See
Pet’r Br. at 2-5; Pet’r Reply Br. at 2-4.) The Court, however, declines to address these claims
because they were not presented to the Indiana Board. (See generally Cert. Admin. R.) See
also Kooshtard Prop. VIII, LLC v. Shelby Cnty. Assessor, 987 N.E.2d 1178, 1181-82 (Ind. Tax
Ct. 2013) (explaining that claims may be waived when a litigant could have, but failed to,
present them to the Indiana Board), review denied.
                                              4
to account for their use of land contracts. (See Cert. Admin. R. at 399.) Kooshtard did

not present any evidence, binding legal authority, or persuasive authority during the

administrative hearing that impeached Johnson’s testimony. (See Cert. Admin. R. at

400-07.) Accordingly, Kooshtard has not demonstrated that the Indiana Board abused

its discretion when it accepted Johnson’s testimony that he was not required to account

for the use of land contracts in valuing Kooshtard’s property.

      As to the personal property issue, Johnson admitted during the administrative

hearing that personal property was included in three of the eight sales he used in his

sales comparison approach. (See, e.g., Cert. Admin. R. at 394-95.) Despite this one

imperfection, the Indiana Board declined to reject the Assessor’s Appraisal because it

offered a more comprehensive analysis than Kooshtard’s Appraisal: it employed all

three valuation approaches as opposed to one. (See Cert. Admin. R. at 39-41 ¶¶ 61-

62, 64.) The Indiana Board also explained that it assigned the most weight to the

Assessor’s evidentiary presentation because Johnson persuasively challenged the

reliability of Kooshtard’s Appraisal, while Kooshtard’s appraiser did not challenge the

Assessor’s Appraisal in any manner whatsoever. (See Cert. Admin. R. at 40-41 ¶¶ 62,

65, 67.)   Consequently, the Court finds that the Indiana Board did not abuse its

discretion in finding the Assessor’s Appraisal more persuasive than Kooshtard’s




                                            5
Appraisal on this basis either.5

                                       CONCLUSION

       An Indiana Board final determination is not supported by substantial evidence if a

reasonable person, after reviewing the administrative record in its entirety, could not find

enough relevant evidence to support the Indiana Board’s decision. See Amax Inc. v.

State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990). Based on its

review of the administrative record, the Court concludes that Kooshtard has not

established that the Indiana Board’s final determination was not supported by

substantial evidence.     Accordingly, the final determination of the Indiana Board is

AFFIRMED.




5
    Finally, the Court notes that the Indiana Board ultimately adjusted Kooshtard’s land
assessment to coincide with the land valuation derived from the cost approach analysis in the
Assessor’s Appraisal, not the sales comparison analysis. (Compare Cert. Admin. R. at 40-41 ¶¶
63, 68 with 321.) This decision is particularly relevant because the flaws about which Kooshtard
has complained of on appeal (i.e., that Johnson used properties that were not comparable) only
go to the validity of Johnson’s sales comparison analysis, not his cost approach analysis.
(Compare Pet’r Br. at 2-4 with Cert. Admin. R. at 234, 239-44, 247-48, 290-307, 322 (regarding
the sales comparison approach analysis) and Cert. Admin. R. at 230-33, 321 (regarding the cost
approach analysis).)
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