Monday, December 23, 2013

Board Finds Selection of Schedule a Subjective Error that May Not be Challenged on Form 133

Excerpts of the Board's Determination follow:

20. Taxpayers have two methods to appeal an assessment: a Petition for Review of Assessment (Form 131) authorized by Indiana Code section 6-1.1-15-1, or a Petition for Correction of Error (Form 133) authorized by Indiana Code section 6-1.1-15-12. “A taxpayer that challenges a property assessment bears the responsibility of using the appropriate method.” Franchise Realty Corp. v. Indiana Bd. of Tax Comm’rs, 682 N.E. 2d 832, 833 (Ind. Tax Ct. 1997) (citing Bender v. State Bd. of Tax Comm’rs, 676 N.E.2d 1113, 1114 (Ind. Tax Ct. 1997)).

21. A taxpayer can file a Form 131 challenging any element of an assessment, but the appeal must be initiated within 45 days receiving notice of the assessment, or by May 10 of the assessment year, whichever is later. Ind. Code § 6-1.1-15-1(b).

22. The time for filing a Form 133 is longer.1 The issues that can be raised with a Form 133, however, are limited. A taxpayer may file a 133 Petition to correct only objective errors in an assessment. It is not for changes that require subjective judgment. Ind. Code § 6-1-15-12; O’Neal Steel v. Vanderburgh Co. Property Tax Assessment Board of Appeals, 791 N.E.2d 857, 860 (Ind. Tax Ct. 2003); Bender, 676 N.E.2d at 1114. Section 12 provides an avenue for correcting objective mistakes in an assessment, not errors in subjective judgment. Ind. Code § 6-1-15-12.

23. A determination is objective if it hinges on a simple, true or false finding of fact. See Bender, 676 N.E.2d at 1115. “[W]here a simple finding of fact does not dictate the result and discretion plays role, [the] decision is considered subjective and may not be challenged through a Form 133 filing.” Id.

24. The Petitioner did not allege an error delineated in Ind. Code § 6-1.1-15-12. The Petitioner did allege that the Assessor erred in arriving at the schedule selection used to assess the property. Specifically, the Petitioner claimed that “[t]he improvement at this property is not a single family – but a garage.” See Form 133 Petitions. In essence, the Petitioner is challenging the schedule selection by the Assessor to arrive at the assessment.

25. Unlike an objective error that is clear on its face, a schedule selection involves subjective judgment by the assessor based on characteristics of the property. A Form 133 petition is not the appropriate petition in which to challenge such an error. A simple finding of fact does not dictate the result in determining schedule and discretion plays a role, as the Respondent’s testimony illustrates. Schedule selection is subjective and may not be challenged through a Form 133 filing. The determination of which schedule to use does not fall into any of the categories in Ind. Code § 6-1-15-12. In Bender, 676 N.E. 2d at 1116, the Tax Court explained:

Clearly, the assessor must use his judgment in determining which schedule to use. It is not a decision automatically mandated by a straightforward finding of fact. The assessor must consider the property in question, including its physical attributes and predominant use, and make a judgment as to which schedule is most appropriate. Just as the assessor must use subjective judgment to determine which base price model to employ within these schedules, so too the assessor must exercise his or her discretion to determine which schedule to use. In some cases, this decision will be a closer call than in others, but regardless of the closeness of the judgment, it remains a judgment committed to the discretion of the assessor. (Citations omitted).