ATTORNEYS FOR PETITIONER:                     RESPONDENTS APPEARING PRO SE:
BRIAN A. CUSIMANO                             PAUL L. CHAVEZ
ATTORNEY AT LAW                               JOAN E. CHAVEZ
Indianapolis, IN                              Auburn, IN

MARILYN S. MEIGHEN
ATTORNEY AT LAW
Carmel, IN
                                                                       Jan 29 2016, 4:55 pm
JEFFREY D. COLLINS
ATTORNEY AT LAW
Indianapolis, IN
______________________________________________________________________

                              IN THE
                        INDIANA TAX COURT
______________________________________________________________________

                                      )
DEKALB COUNTY ASSESSOR,               )
                                      )
     Petitioner,                      )
                                      )
                 v.                   ) Cause No. 49T10-1502-TA-00006
                                      )
PAUL L. and JOAN E. CHAVEZ,           )
                                      )
     Respondents.                     )
______________________________________________________________________

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

                                 FOR PUBLICATION
                                  January 29, 2016
WENTWORTH, J.

      The DeKalb County Assessor challenges the Indiana Board of Tax Review’s final

determination reclassifying 2.72 acres of Paul and Joan Chavezes’ land from excess

residential to agricultural for the 2013 tax year. The Court affirms the Indiana Board’s

decision.
                     FACTS AND PROCEDURAL HISTORY

      In the 1980’s, Paul and Joan Chavez purchased 5.18 acres of property in

Auburn, Indiana, for $2,500. (See Cert. Admin. R. at 4, 73-74, 118.) On the March 1,

2013 assessment date, the property was partially wooded and included a mobile home,

a detached garage, and three pole barns. (See Cert. Admin. R. at 73-74, 92-96.) For

property tax purposes, the Assessor classified one acre proximate to the mobile home

as a residential homesite, 2.72 wooded acres as excess residential, .68 acres as a legal

ditch, and .78 acres as a public road for a total land assessed value of $44,200. (See

Cert. Admin. R. at 3, 71, 164.)

      Believing the total assessment to be too high, the Chavezes filed an appeal with

the DeKalb County Property Tax Assessment Board of Appeals (PTABOA).                The

PTABOA, based upon a recommendation from the Assessor’s office, reduced the land

assessment to $32,800. (Cert. Admin. R. at 13-14.)

      Still believing the land assessment was excessive, the Chavezes appealed to the

Indiana Board, which held a hearing on August 14, 2014. During the hearing, Mr.

Chavez claimed that the 2.72 acres of excess residential land should be classified as

agricultural because he purchased the property “as a woods” and intended to grow and

harvest the trees as the previous owner had.         (See Cert. Admin. R. at 175-85.)

Although the property had been “logged out” at the time of purchase, some of the trees

were mature in 2013, while others were still maturing. (See Cert. Admin. R. at 175-77.)

None of the trees, however, had been harvested in 2013. (Cert. Admin. R. at 184-85.)

      On January 6, 2015, the Indiana Board issued its final determination that found

the Assessor erred in classifying the 2.72 acres as excess residential and reclassified


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them as agricultural. (See Cert. Admin. R. at 34 ¶ 38.) On February 19, 2015, the

Assessor initiated this original tax appeal.           The Court heard oral argument on

September 25, 2015.1 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. Kildsig v. Warrick Cnty. Assessor, 998 N.E.2d

764, 765 (Ind. Tax Ct. 2013). Accordingly, the Assessor must demonstrate to the Court

that the Indiana Board’s final determination 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).

                                     LAW AND ANALYSIS

       The Assessor contends that the Indiana Board’s final determination reclassifying

2.72 acres as agricultural land is both contrary to law and unsupported by substantial

evidence. (Pet’r Br. at 3, 5-8.) Specifically, the Assessor argues that the Indiana Board

erred in finding that the 2.72 acres were devoted to an agricultural use in accord with

Indiana Code § 6-1.1-4-13(a) and failed to support its finding with substantial evidence

by relying solely on the taxpayer’s intent to harvest timber on the land at the time of

purchase. (See Pet’r Br. at 3-8.)

       “[L]and shall be assessed as agricultural land only when it is devoted to

agricultural use.” IND. CODE § 6-1.1-4-13(a) (2013). Indiana Code § 6-1.1-4-13 does not

1 The Court held oral argument at the Indiana Tech Law School in Fort Wayne, Indiana. The
Court thanks the law school for its hospitality, the parties and their counsel for traveling to Fort
Wayne, and their able advocacy.
                                                 3
define the phrase “devoted to agricultural use.”        See I.C. § 6-1.1-4-13.      Indiana’s

assessment guidelines, however, identify woodland, i.e., “land supporting trees capable

of producing timber or other wood products,” as an agricultural use.2 REAL PROPERTY

ASSESSMENT GUIDELINES FOR 2011 (Guidelines) (incorporated by reference at 50 IND.

ADMIN. CODE 2.4-1-2 (2011) (see http://www.in.gov/legislative.iac/)), Bk. 1, Ch. 2 at 89.

Moreover, the guidelines identify factors that should be considered in determining

whether land is woodland, e.g., the existence of a timber management plan, the

harvesting and sale of the timber, the purchaser’s intent when purchasing the land, and

whether there was a change in the use of the property. See, e.g., Guidelines, Bk. 1, Ch.

2 at 80-82, 89-91. The guidelines also explain that “[o]f particular interest . . . is the

reason for the purchase of the land.” Guidelines, Bk. 1, Ch. 2 at 89.

       The Assessor first argues that the Chavezes’ land was not devoted to the

harvesting of timber because they did not have any “formal plans for the harvesting of

any of the trees.” (See Pet’r Br. at 5-6.) The Assessor explained that without any

specific plans, the circumstances established only a “casual motivation” that the

Chavezes’ land was actually used as woodland. (See Pet’r Br. at 6.) The guidelines

provide, however, that having a timber management plan in place is just one factor,

among others, that would assist in determining whether land is devoted to that

agricultural use. See Guidelines, Bk. 1, Ch. 2 at 89-91. Accordingly, the mere fact that

the Chavezes do not have a timber management plan does not mean that their 2.72

acres are not devoted to an agricultural use. See Orange Cnty. Assessor v. Stout, 996



2
  Indiana Code § 6-1.1-4-13 was amended in 2015 adding “land devoted to the harvesting of
hardwood timber is considered to be devoted to agricultural use.” IND. CODE § 6-1.1-4-13(b)(4)
(2015).
                                              4
N.E.2d 871, 876 (Ind. Tax Ct. 2013) (recognizing that the lack of a timber management

plan alone is not dispositive of whether a property is used for agricultural purposes).

       In addition to their lack of a timber management program, the Assessor explains

that the Chavezes never harvested any timber from their property since they purchased

it in the 1980’s and thus could not have devoted the land to an agricultural use. (See

Pet’r Br. at 5-6.) The Assessor further explains that the Indiana Board’s decision was

based on a hypothetical future use of the property with no factual support. (See Pet’r

Br. at 7.) Again, however, the guidelines state that timber harvests are but one factor in

determining whether land is devoted to agricultural use. See Guidelines, Bk. 1, Ch 2 at

91 (stating that regular forest harvests over a long period of time may indicate use as

woodland). Accordingly, the Court cannot find the Indiana Board erred in reclassifying

the Chavezes’ land despite the fact they neither had a timber management plan nor had

they harvested any trees. See Guidelines, Bk. 1, Ch. 2 at 89 (explaining that no one of

the factors alone is controlling).

      The Indiana Board’s final determination reveals that it gave significant weight to

Mr. Chavez’s testimony that he and his wife purchased the property in the 1980’s as a

“woods” and intended to harvest the trees and sell timber, just as the prior owner had.

(See Cert. Admin. R. at 32 ¶ 33.) The Assessor claims, however, that by giving more

weight to the Chavezes’ intent at the time of purchase than to the other factors identified

in the guidelines creates an unworkable standard, as it would “place[] an impossible

burden on [assessors generally] to assess a property’s actual use.” (Pet’r Br. at 8.) The

Court applies the law, however, as written; the Assessor’s remedy therefore lies with the

Legislature.   Accordingly, the Assessor’s argument does not persuade the Court to



                                             5
either ignore the purchaser’s intent at the time of purchase or refuse to give it

heightened import as the guidelines set forth.

      Finally, the Assessor claims that the Indiana Board erroneously based its final

determination solely on the Chavezes’ subjective intent to harvest the trees at the time

of purchase. (See Pet’r Br. at 7.) This claim is also without merit because the Indiana

Board also analyzed whether the facts demonstrated that there had been a change in

the Chavezes’ use of their land. See Guidelines, Bk. 1, Ch. 2 at 82 (illustrating that a

parcel – initially classified as agricultural – should continue to be classified as

agricultural when its use has not changed). As noted above, Mr. Chavez testified that

the prior owner had “logged” the property out and in 2013, some of the trees were

mature and some were still maturing. (Cert. Admin. R. at 175-77.) In addition, an aerial

view of their property revealed a full canopy of trees. (See Cert. Admin. R. at 70; Oral

Arg. Tr. at 24 (where the Assessor acknowledged that in March 2013, trees were

growing on the 2.72 acres).) The Indiana Board noted that even though Chavez cut

some of the trees for firewood, this did not indicate a change of use. (See Cert. Admin.

R. at 32-33 ¶ 33.) Consequently, the Indiana Board properly concluded that there was

no evidence demonstrating that the Chavezes took any steps to change the use of the

2.72 acres. (See Cert. Admin. R. at 33 ¶ 34.)

      The guidelines provide several factors to consider when determining whether

land is woodland and is therefore devoted to an agricultural use under Indiana Code §

6-1.1-4-13(a). The Indiana Board did not act contrary to law when it analyzed these

very factors to determine that the Chavezes’ 2.72 acres were devoted to an agricultural

use. Furthermore, the Assessor’s claim that the Indiana Board’s final determination was



                                            6
not supported by substantial or reliable evidence must also fail because the record

contains more than a scintilla of supporting evidence and a reasonable person viewing

the entire record could find enough relevant evidence to support the Indiana Board’s

final determination. See 6787 Steelworkers Hall, Inc. v. Scott, 933 N.E.2d 591, 595 n.7

(Ind. Tax Ct. 2010) (holding that evidence is substantial if it is more than a scintilla and

less than a preponderance); see also Kildsig, 998 N.E.2d at 767 (stating that an Indiana

Board’s final determination is supported by substantial evidence “‘if a reasonable person

could view the record in its entirety and find enough relevant evidence to support the . . .

determination’” (citation omitted)).   To find that the evidence does not support the

Indiana Board’s conclusion would require the Court to reweigh the evidence, which it

cannot do. See Kildsig, 998 N.E.2d at 767 (explaining that the Court may not reweigh

the evidence that was presented to the Indiana Board).

                                       CONCLUSION

       For the above-stated reasons, the final determination of the Indiana Board is

AFFIRMED.




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