ATTORNEYS FOR PETITIONER:                     ATTORNEYS FOR RESPONDENT:
BRIAN A. CUSIMANO                             RANDAL J. KALTENMARK
JEFFREY D. COLLINS                            ZIA MOLLABASHY
ATTORNEYS AT LAW                              BARNES & THORNBURG LLP
Indianapolis, IN                              Indianapolis, IN

MARILYN S. MEIGHEN
ATTORNEY AT LAW
Carmel, IN
______________________________________________________________________

                             IN THE
                       INDIANA TAX COURT
______________________________________________________________________
                                                         Dec 31 2015, 10:30 am


WELLS COUNTY ASSESSOR,                )
                                      )
     Petitioner,                      )
                                      )
                 v.                   ) Cause No. 49T10-1501-TA-00003
                                      )
ALEXIN, LLC,                          )
                                      )
     Respondent.                      )
______________________________________________________________________

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

                               FOR PUBLICATION
                               December 31, 2015

WENTWORTH, J.

      This case examines the Indiana Board of Tax Review’s final determination that

the Common Council of the City of Bluffton (Council) waived Alexin, LLC’s non-

compliance with certain statutory requirements for its 2013 personal property tax

abatement deduction.   Upon review, the Court finds that the Indiana Board’s final
determination is contrary to law.1

                          FACTS AND PROCEDURAL HISTORY

       Alexin operates an aluminum production/manufacturing business in an area of

Wells County, Indiana that the Council designated as an economic revitalization area.

(See Cert. Admin. R. at 53, 75, 77.) Prior to 2013, the Council granted Alexin a ten-year

abatement of taxes on its personal property. (See Cert. Admin. R. at 75, 77.) To claim

its tax abatement deduction in 2013, Alexin’s CPA prepared, among other things, its

Business Tangible Personal Property Assessment Return, three Compliance With

Statement of Benefits Personal Property forms (Forms CF-1), and a Schedule Of

Deduction From Assessed Valuation Personal Property In Economic Revitalization Area

form (Form 103-ERA). (See Cert. Admin. R. at 56-62, 64-70, 75-76, 79.) Due to an

administrative oversight, however, Alexin did not timely file any of its tax abatement

forms with the Wells County Assessor. (See Cert. Admin. R. at 77, 79.) As a result, the

Assessor issued a Notice of Assessment Change to Alexin that disallowed its 2013 tax

abatement deduction.

       On August 10, 2013, Alexin filed an appeal with the Wells County Property Tax

Assessment Board of Appeals (PTABOA).               While that appeal was pending, Alexin

asked the Council to issue a resolution that waived “the late filing of [its] personal

property [tax] abatement forms.” (See Cert. Admin. R. at 79.) On September 3, 2013,

after holding a public hearing, the Council unanimously adopted Resolution 2013-9

pursuant to Indiana Code § 6-1.1-12.1-9.5 and § 6-1.1-12.1-11.3, which provided that

“Alexin’s former non-compliance with respect to the timing of the filing of the [Forms CF-

1
  Portions of the certified administrative record are confidential; consequently, this opinion will
only provide the information necessary for the reader to understand its disposition of the issues
presented. See generally Ind. Administrative Rule 9.
                                                2
1] . . . is waived and the [Forms CF-1] as filed should be and are hereby approved[.]”

(See Cert. Admin. R. at 78.) On September 27, 2013, the PTABOA issued a final

determination, upholding the Assessor’s disallowance of Alexin’s 2013 tax abatement

deduction.

      On October 15, 2013, Alexin appealed to the Indiana Board. On September 18,

2014, the Indiana Board conducted a hearing on Alexin’s appeal during which Alexin

claimed that its 2013 tax abatement deduction should be reinstated because the

Council had waived the untimeliness of its Forms CF-1 in Resolution 2013-9. (See

Cert. Admin. R. at 135-36, 138-42.) The Assessor, on the other hand, argued that

Alexin was not entitled to the tax abatement deduction because the Council lacked the

statutory authority to waive Alexin’s act of non-compliance. (See Cert. Admin. R. at

143-50.)     The Assessor also claimed that Alexin was not entitled to the deduction

because Resolution 2013-9 only waived Alexin’s non-compliance regarding its Forms

CF-1, not regarding its personal property tax return. (See Cert. Admin. R. at 147-49.)

On December 17, 2014, the Indiana Board issued its final determination reinstating

Alexin’s 2013 tax abatement deduction based on its conclusion that “[t]he Council [had]

acted within its [statutory] authority in passing a resolution waiving [Alexin’s] non-

compliance.” (See Cert. Admin. R. at 23.)

      On January 30, 2015, Alexin initiated this original tax appeal. The Court heard

oral argument on November 20, 2015. Additional facts will be supplied if 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,



                                            3
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).

                                           LAW

       An “economic revitalization area” is:

          an area which is within the corporate limits of a city, town, or county
          which has become undesirable for, or impossible of, normal
          development and occupancy because of a lack of development,
          cessation of growth, deterioration of improvements or character of
          occupancy, age, obsolescence, substandard buildings, or other
          factors which have impaired values or prevent a normal
          development of property or use of property.

IND. CODE § 6-1.1-12.1-1(1) (2015). The term also includes (1) “any area where a

facility or a group of facilities that are technologically, economically, or energy obsolete

are located and where the obsolescence may lead to a decline in employment and tax

revenues; and [2] a residentially distressed area, except as otherwise provided in this

chapter.” I.C. § 6-1.1-12.1-1(1).    Tax abatements are available for certain tangible

personal property within a designated economic revitalization area. See generally IND.

CODE §§ 6-1.1-12.1-0.3 to -17 (2015).

       A person who desires to obtain a tax abatement deduction in a designated

economic revitalization area must, among other things,

          file a certified deduction schedule with the person’s personal
          property return on a form prescribed by the department of local
          government finance [(i.e., a Form 103-ERA)] with the township
          assessor in which the new manufacturing equipment, new research

                                               4
           and development equipment, new logistical distribution equipment,
           or new information technology equipment is located, or with the
           county assessor if there is no township assessor for the township.

See IND. CODE § 6-1.1-12.1-5.4(a) (2013) (amended 2015). (See also e.g., Cert. Admin.

R. at 101-02 (Alexin’s Form 103-ERA).) The person must also file a Form CF-1 with the

county auditor and the designating body that shows whether there has been compliance

with the statement of benefits approved under Indiana Code § 6-1.1-12.1-4.5. See IND.

CODE § 6-1.1-12.1-5.6 (2013); IND. CODE § 6-1.1-12.1-1(7) (2013) (defining a

“designating body”). (See also, e.g., Cert. Admin. R. at 67-68 (Alexin’s Form CF-1).) In

the event one fails to follow these statutory procedures, the designating body may issue

a resolution either before conducting a public hearing under Indiana Code § 6-1.1-12.1-

9.5 (Section 9.5) or after holding a hearing under Indiana Code § 6-1.1-12.1-11.3

(Section 11.3) that waives the person’s non-compliance. See IND. CODE §§ 6-1.1-12.1-

9.5, -11.5 (2013).

                                         ANALYSIS

       The issue before the Court is whether the Indiana Board’s final determination that

the Council waived Alexin’s non-compliance with certain statutory requirements for its

2013 personal property tax abatement deduction is contrary to law. The parties’ written

briefs and oral arguments indicate that the resolution of this issue depends on the

answers to the following two questions:         (1) whether the Council had the statutory

authority to waive Alexin’s untimely filed personal property tax return under Section 9.5;2

and, if so, (2) whether the Council actually waived Alexin’s untimely filed personal


2
   The Assessor also claims that Section 11.3 did not authorize the Council to waive Alexin’s
untimely filed personal property tax return because that statute provides for the waiver of
deduction applications only. (See, e.g., Pet’r Br. at 3-9.) The Court, however, need not resolve
this issue to dispose of the case.
                                               5
property tax return in Resolution 2013-9.3

                                              (1)

       The Assessor contends that Section 9.5 did not provide the Council with the

authority to waive Alexin’s untimely filed personal property tax return because Indiana

Code § 6-1.1-3 (Chapter 3) governs the filing of personal property tax returns, not

Indiana Code § 6-1.1-12.1 (Chapter 12.1). (See Oral Arg. Tr. at 42-45.) During the

2013 tax year, Section 9.5 provided in relevant part that a

           designating body may by resolution waive noncompliance with the
           following requirements in [Chapter 12.1] with respect to a particular
           deduction under [Chapter 12.1]: [] a filing deadline applicable to an
           application, a statement of benefits, or another document that is
           required to be filed under [Chapter 12.1] . . . if the taxpayer
           otherwise qualifies for the deduction and the document is filed or
           the clerical error is corrected before the resolution is adopted.

I.C. § 6-1.1-12.1-9.5(b)(1) (emphasis added).

       The plain language of Section 9.5 authorized the Council to issue a resolution

that waived Alexin’s failure to comply with the filing deadlines for any documents that

were required to be filed under Chapter 12.1. See I.C. § 6-1.1-12.1-9.5(b)(1). See City

of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007) (providing that when a statute is

clear and unambiguous, the Court need only require that its words and phrases be

taken in their plain, ordinary, and usual sense). In turn, Indiana Code § 6-1.1-12.1-5.4

required Alexin to file both a personal property tax return and a Form 103-ERA annually

to obtain its 2013 tax abatement deduction.            See I.C. § 6-1.1-12.1-5.4(a)(1), (e)


3
   Alexin claims that the Court cannot consider this second issue because the Assessor did not
present the argument to the Indiana Board. (See Oral Arg. Tr. at 31-33.) 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. The certified administrative record reveals, however, that
this argument was presented to the Indiana Board. (See Cert. Admin. R. at 20 ¶ 16, 147-49.)
                                               6
(explaining that unless the township or county assessor denies or alters the tax

abatement deduction, it “is [to be] applied in the amount claimed in [the] certified

schedule [(i.e., the Form 103-ERA)] that [the] person files with: (1) a timely personal

property [tax] return under IC 6-1.1-3-7(a) or IC 6-1.1-3-7(b)” (emphasis added)).

Accordingly, the fact that Chapter 3 governs the general filing requirements for personal

property tax returns does not alter the fact that Chapter 12.1 requires a person to file a

personal property tax return to be eligible for a tax abatement deduction. The Council,

therefore, had the authority to waive the untimeliness of Alexin’s personal property tax

return under Section 9.5 to ensure that it received the tax abatement deduction, and the

Indiana Board’s final determination is not contrary to law on this basis.

                                             (2)

       The Assessor further contends that the plain language of Resolution 2013-9

indicates that the Council waived Alexin’s failure to timely file its Forms CF-1, but not its

personal property tax return. (See Pet’r Reply Br. at 3.) Alexin, on the other hand,

contends that the Council’s reference to the Forms CF-1 in Resolution 2013-9 was most

likely just a mistake and that it intended to waive the untimeliness of each of Alexin’s

2013 tax abatement forms. (See Oral Arg. Tr. at 33-40.) Resolution 2013-9 states:

          WHEREAS, I.C. 6-1.1-12.1-1 et seq[.] provides a mechanism for
          an applicant, upon submission of a completed Form SB-1, to
          request and be granted an abatement in property taxes for certain
          improvements made in areas designated as Economic
          Revitalization Areas; and

          WHEREAS, the [Council] . . . previously designated the area in
          which [Alexin] . . . is located as an Economic Revitalization Area;
          and

          WHEREAS, on or about November 13, 2007, the Council
          approved [the Form SB-1s] submitted by Alexin in connection with

                                             7
improvements to real estate and the installation [of] manufacturing
equipment at Alexin’s facilities in the city of Bluffton, Harrison
Township, Wells County, Indiana (hereinafter “the Project”); and

WHEREAS, the Council has been informed by Alexin that due to
an administrative oversight Alexin did not comply with statutory
procedures, specifically, Alexin failed to file a Compliance with
Statement of Benefits, Real Estate Improvements and a
Compliance with Statement of Benefits for Personal Property
(hereinafter “[the Forms CF-1]”) in time for them to timely file their
Application for Deduction with their 2013 real and personal
property tax returns with respect to the [P]roject and as such are
being denied a tax abatement for taxes imposed in 2013; and

WHEREAS, I.C. 6-1.1-12.1-9.5 and 6-1.1-12.1-11.3 allow a
designating body to waive certain acts of non-compliance by
resolution after a public hearing;

   NOW, THEREFORE BE IT RESOLVED THAT:

1. After proper public notice, a public hearing on Alexin’s
   requested waiver was held on September 3, 2013, at 7:30 PM
   at the city council chambers located at 128 East Market Street,
   Bluffton, Indiana.

2. At said public hearing, the Council reviewed Alexin’s
   completed [Forms CF-1], questioned representatives of Alexin
   and now affirmatively makes the following findings:

       a. Except for the timing of the filing, [the Forms CF-1]
          filed by Alexin on or about May 21, 2013, is in
          compliance with Indiana Law.

       b. The estimate of the number of individuals whom
          will be employed or whose employment will be
          retained can be reasonably expected to result
          from the [P]roject.

       c. The estimate of the annual salaries for those
          individuals who will be employed or whose
          employment will be retained can be reasonably
          expected to result from the Project.

       d. The totality of the benefits is sufficient to justify the
          abatement.



                                    8
          3. Alexin’s former non-compliance with respect to the timing of
             the filing of [the Forms CF-1] dated May 21, 2013, is waived
             and [the Forms CF-1] as filed should be and are hereby
             approved as requested in the [Form SB-1] originally approved
             on November 13, 2007.

(Cert. Admin. R. at 77-78.)

       In interpreting Resolution 2013-9, the Court’s goal is to ascertain and give effect

to the Council’s intent in promulgating it. See Johnson Cnty. Farm Bureau Coop. Ass’n

v. Indiana Dep’t of State Revenue, 568 N.E.2d 578, 580 (Ind. Tax Ct. 1991), aff’d by

585 N.E.2d 1336 (Ind. 1992); see also Coverdale v. Edwards, 58 N.E. 495, 498 (Ind.

1900); Payne v. Town of Austin, 523 N.E.2d 245, 248 (Ind. Ct. App. 1988), trans. denied

(both indicating that the rules of statutory construction apply to resolutions).

Accordingly, the Court must first examine the Resolution’s language because it typically

is the best evidence of that intent. See Charwood LLC v. Bartholomew Cnty. Assessor,

906 N.E.2d 946, 949 (Ind. Tax Ct. 2009); Johnson Cnty., 568 N.E.2d at 581. When, as

here, that language is clear and unambiguous, the Court may not expand or contract its

meaning by reading additional language into it to correct supposed omissions. See

SAC Fin., Inc. v. Indiana Dep’t of State Revenue, 24 N.E.3d 541, 546-47 (Ind. Tax Ct.

2014), review denied.

       Upon review of Resolution 2013-9, the Court finds it never refers to Alexin’s

personal property tax return, but specifically waives only the untimeliness of Alexin’s

Forms CF-1. (See Cert. Admin. R. at 77-78.) This conclusion is further supported by

the Council’s hearing notice, which provides that the public hearing would concern

Alexin’s request to “the [Council] to waive [Alexin’s] failure to timely file [the Forms CF-1]

in a timely manner so to make [it] available for property tax [abatement] deductions for



                                              9
2013[.]” (Cert. Admin. R. at 126 (emphasis added).)

       The parties do not dispute that Alexin’s personal property tax return, its Forms

CF-1, and its Form 103-ERA are separate and distinct documents. (See, e.g., Cert.

Admin. R. at 56-70, 75-76.) Furthermore, each document must be timely filed to obtain

a personal property tax abatement deduction. See I.C. §§ 6-1.1-12.1-5.4, -5.6. While

the Court is sympathetic to Alexin’s misfortune, the record evidence, the parties’

arguments, and the applicable rules of construction require the Court to find that the

Council’s Resolution 2013-9 did not waive the non-compliance of Alexin’s personal

property tax return.    The Council’s Resolution waived only the non-compliance of

Alexin’s Forms CF-1 and, therefore, the Indiana Board’s final determination is contrary

to law on this basis.

                                    CONCLUSION

       For the above-stated reasons, the Court REVERSES the final determination of

the Indiana Board.




                                          10
