BURDEN OF PROOF
Here, the Respondent’s counsel argues that Indiana Code §
6-1.1-15-17.2 should not be applied retroactively. ...
The Respondent’s counsel argues that amendments are only
to apply prospectively “absent clear and expressed language to the contrary.” Meighen
argument, citing Indiana Dep't of Revenue v. Estate of Riggs, 735 N.E.2d
340 (Ind. Tax Ct. 2000). But the Tax Court in Estate of Riggs recognized
that “exceptions to the general rule exist” noting that “retroactive
application may be permitted where the new legislation only changes a mode of
procedure… or where a statute is remedial.” 735 N.E.2d at 344. Because the
amendment at issue in the Estate of Riggs case changed the amount of an
exemption, the Court held that, unlike the burden shifting law at issue in this
case, the amendment did not “change a mode of procedure”; nor was there any
indication the amendment was “designed or intended to cure a defect or mischief
existing in a prior statute.” Id. at 345. Thus, the Court concluded in
that case there was no evidence to suggest that the General Assembly intended
to make the amendment retroactive. Id.
The Respondent’s counsel also argues that the assessment
is the “thing affected.” However, Indiana Code § 6-1.1-15-17.2 does not change
the rules or standards for determining whether an assessment is correct. Nor
does the statute make any change to the assessor’s duties in making
assessments. Assessors are tasked with assessing property based on its “true
tax value” which is defined as “the market value-in-use of a property for its
current use, as reflected by the utility received by the owner or a similar
user, from the property.” 2002 REAL PROPERTY ASSESSMENT MANUAL at 2
(incorporated by reference at 50 IAC 2.3-1-2). This definition “sets the
standard upon which assessments may be judged.” Id. Moreover, under the
trending rules, property values are to be adjusted each year to reflect the
change in a property’s market value between general reassessment years. Ind.
Code § 6-1.1-4-4.5. Whether the assessor will have the burden of proof at trial
based on how much that property’s value changes year over year should have no
impact on the assessor’s obligation to value property according to its market
value-in-use. In fact, the Respondent made no claim that it would have assessed
the Petitioner’s properties differently if the burden shifting provision had
been promulgated prior to the time that the assessment was made.
Indiana Code § 6-1.1-15-17.2 places the burden of proof on
an assessor when the assessed value of a property increases by more than five
percent between assessment years. Thus, the “affected thing” would be the
evidentiary hearing wherein the Board evaluates the proof offered by the
parties. If the General Assembly had not intended the law to apply to pending
appeals, it could have inserted language to that effect, stating that the law
only applied to future assessments. This the legislature did not do.
While the Board sympathizes with the county that it no
longer has access to much of the information related to older assessments
because of numerous contractor changes in the past ten years, it notes that the
Respondent was fully aware of the parcels being appealed at the time each
appeal was filed. That the county chose not to retain hard copies of computer
data to aid in its defense is not a reason to ignore the legislative mandate
that has been passed. Moreover, the laws regarding proving a property’s value
by providing probative market value-in-use evidence have been in place since
2002. Even before that time, the Tax Court held that a Respondent could not
defend an assessment merely by contending it assessed the property correctly. See
Canal Square v. State Bd. of Tax Comm'rs, 694 N.E.d2d 801, 808 (Ind. Tax
Ct. 1998) (mere recitation of expertise insufficient to rebut prima facie
case). Thus, assessors could not merely rely on proof that the county’s
assessments were performed in accordance with DLGF guidelines and the county
should have been collecting market value-in-use evidence, separate from any
evidence of a property’s assessment, since long before the burden shifting law
was passed.
...
MOTION FOR INVOLUNTARY DISMISSAL
The Respondent’s counsel argues that the Petitioner’s
representative failed to show a “legitimate” reason for filing the Petitioner’s
appeal with the PTABOA and with the Board. Meighen argument. Because the
Petitioner had no valid basis for filing an appeal, Ms. Meighen argues, the
Board should dismiss his Petition pursuant to Trial Rule 41(B). Id.
Pursuant to Trial Rule 41(B) of the Indiana Rules of Trial
Procedure: “After the plaintiff or party with the burden of proof upon an
issue, in an action tried by the court without a jury, has completed the
presentation of his evidence thereon, the opposing party, without waiving his
right to offer evidence in the event the motion is not granted, may move for a
dismissal on the ground that upon the weight of the evidence and the law there
has been shown no right to relief.”
By the clear language of the rule, Trial Rule 41(B)
applies to dismiss the case of a “plaintiff or party with the burden of
proof upon an issue.” T.R. 41(B) (emphasis added). Here, however, the
Respondent has the burden of proof. Thus, while the taxpayer may have been able
to move for involuntary dismissal of the assessor’s case after the Respondent
had presented its evidence, the Respondent cannot move to involuntarily dismiss
the Petitioner’s appeal in this case. Moreover, Trial Rule 41(B) allows a party
to move for involuntary dismissal after the presentation of evidence. T.R.
41(B) (applies after a party “has completed the presentation of his evidence…”)
At the time Ms. Meighen moved for dismissal, the Petitioner had presented no
evidence.
There is little question that, had the Petitioner had the
burden of proof in this appeal, the case presented by his representative would
have fallen far short of the burden to prove the Petitioner’s property’s
assessment was in error. As discussed above, Indiana Code § 6-1.1-15-17.2
places the burden of proof on an assessor when the assessed value of a property
increases by more than five percent between assessment years. The Respondent
cannot sidestep the requirements of the burden shifting law, by seeking to
dismiss a petition it deems insufficient to make a case. The Board therefore
denies the Respondent’s counsel’s motion for involuntary dismissal under
Indiana Trial Rule 41(B).
