The Petitioner failed to make a
prima facie case that all of the “retroactive assessments” were imposed in
violation of Indiana law.
a. The Petitioner is not
contesting the assessed values. Instead, the Petitioner argues that there is a
conflict between two statutes: Ind. Code § 6-1.1-9-4 and Ind. Code § 6-1.1-4-12.
The pertinent statute in this appeal is Ind. Code § 6-1.1-9-4 which provides:
(a) Real property may be
assessed, or its assessed value increased, for a prior year under this chapter
only if the notice required by section 1 of this chapter is given within three
(3) years after the assessment date for that prior year.
Ind. Code § 6-1.1-9-4(a).
Whereas Ind. Code § 6-1.1-4-12(f)
& (g) states that if improvements are added to real property, the
improvements shall be assessed and an assessment or reassessment made is
effective on the next assessment date. Ind. Code § 6-1.1-4-12(f) & (g).
Additionally, Ind. Code §
6-1.1-4-12(i) adds the reassessment may not be done until the next assessment
date following the earliest of (1) the date on which title to the land is
transferred, (2) the date on which construction of a structure begins on the land,
or (3) the date on which a building permit is issued for construction of a building
or structure on the land. Ind. Code § 6-1.1-4-12(i).
b. The Petitioner argues that
Ind. Code § 6-1.1-4-12 should be viewed as the controlling statute in this case
because it is not only more specific, it is much more detailed than Ind. Code §
6-1.1-9-4 and applies specifically to the type of properties involved. The Petitioner’s
argument, however, is flawed. When there is a statute that deals with a subject
in general and comprehensive terms and another statute that deals with a part of
the same subject, the two statutes should be read together and harmonized, if possible.
Sanders v. State, 466 N.E.2d 424 (Ind. 1984); see also Citizens Gas
& Coke Utility v. Sloan, 196 N.E.2d 290 (Ind. App. 1964).5 Here, Ind.
Code § 6-1.1-9-4 and Ind. Code § 6-1.1-4-12 deal, in part, with the same
subject and do not contradict each other. Therefore, the two statutes should be
read together and harmonized.
c. The Aspen Court property added
an improvement in 2003; therefore, a reassessment of the property would be
proper in 2004. When the Assessor noticed the improvements on the property had
been missed, she mailed notice on July 30, 2007, informing the property owner
of record of the new assessments for 2004, 2005, and 2006. This was within her
authority under Ind. Code § 6-1.1-9-4(a) for the 2005 and 2006 assessments on
the Aspen Court property. However, the 2004 assessment falls outside of the
three (3) year window provided by Ind. Code § 6-1.1-9-4(a). Because the
Assessor mailed the notice on July 30, 2007, she could only statutorily go back
to July 30, 2004, and not back to the assessment date of March 1, 2004. Thus,
the Assessor acted within her statutory authority only when she added the new construction
for the 2005 and 2006 assessments.
d. The Eastway Drive property was
improved in 2003, which again would require a reassessment in 2004. In 2006 the
Assessor noticed the missed improvements on this property and mailed notice to
the property owner of record indicating the correct assessments for 2004 and
2005, which she had the authority to do under Ind. Code § 6-1.1-9-4(a). Thus,
the Assessor acted within her statutory authority when she added the new
construction to the assessments within three years.
e. The Petitioner states that it
never received a tax bill on the Aspen Court property for the 2004, 2005, or
2006 assessments years. And the Petitioner states it never received a tax bill
on the Eastway Drive property for the 2004 and 2005 assessment years. Similarly,
and presumably for the same reasons, the Petitioner did not receive the notices
of reassessments. The Board finds it problematic that even though no tax bill was
received by the Petitioner for the years in question, no effort was made by the
Petitioner to determine why a tax bill was not received, which would not have
been an unreasonable burden for the Petitioner.
f. The Petitioner argues further
that even if the requirements were met under Ind. Code § 6-1.1-9-4(a), the
Assessor failed to comply with the notice requirement. Indiana Code § 6-1.1-9-1
sets out what constitutes proper notice, stating “[t]he notice shall contain a
general description of the property and a statement describing the taxpayer's right
to a review with the county property tax assessment board of appeals under Ind.
Code 6-1.1-15-1.” Ind. Code § 6-1.1-9-1. Thus, the purpose of the notice is to inform
the taxpayer of the “right to review.” Id. As to the form of the notice,
the notice must be sent pursuant to Ind. Code § 6-1.1-4-22(e), which further
requires that the “[n]otice of the opportunity to appeal” include:
(1) The procedure that a taxpayer
must follow to appeal the assessment or reassessment.
(2) The forms that must be filed
for an appeal of the assessment or reassessment.
(3) Notice that an appeal of the
assessment or reassessment requires evidence relevant to the true tax value of
the taxpayer’s property as of the assessment date.
Ind. Code § 6-1.1-4-22(e).
g. The Petitioner has not claimed
an error regarding the form of the notice; rather, the Petitioner takes
exception with the fact that the Petitioner did not receive the notice. The
statute states that notice must be “given within three (3) years after
the assessment date for that prior year.” Ind. Code § 6-1.1-9-4(a) (emphasis
added). It is undisputed that the Respondent attempted to give notice.
Indiana Courts have not yet addressed what constitutes proper notice under Ind.
Code § 6-1.1-9-1. The Petitioner has failed to direct the Board to case law or
cogent argument sufficient to conclude the notice was insufficient. But even
were the Petitioner to convince the Board notice was insufficient, the
remedy would be a review of the assessment. The clear purpose of the relevant
statutes is to provide the taxpayer with an opportunity to challenge the amount
of the reassessment. But in this case, the “Petitioner is not challenging the amount
of the assessment.” Pet’r Brief at 7. Because the Petitioner has not
challenged the assessment, the Board cannot grant the relief as to the amount of
the assessment.
h. The Petitioner argues that the
penalties attached to the “retroactive assessments” were incorrectly applied
since the bills were not received. The Board is a creation of the legislature,
and it has only those powers conferred by statute. Matonovich v. State Bd.
of Tax Comm’rs, 705 N.E.2d 1093, 1096 (Ind. Tax Ct. 1999). The relevant statute
is Ind. Code § 6-1.5-4-1, which provides as follows:
(a) The Indiana board shall
conduct an impartial review of all appeals concerning:
(1) the assessed valuation of
tangible property;
(2) property tax deductions;
(3) property tax exemptions;
(4) property tax credits;
that are made from a
determination by an assessing official or county property tax assessment board
of appeals to the Indiana board under any law.
(b) Appeals described in this
section shall be conducted under IC 6-1.1-15.
Ind. Code § 6-1.5-4-1.
The Tax Court has held the Board’s
enabling statute “did not grant any power to the State Board to review
penalties imposed by the County for the late payment of property taxes,”
because it contemplated only a review of assessments, deductions, exemptions,
and credits.6 Whetzel v. Dep’t of Local Gov’t Fin., 761 N.E.2d 904 (Ind.
Tax Ct. 2002). Given the clear language of Whetzel, the Board lacks the
subject matter jurisdiction to afford the Petitioner the relief that it seeks
with regard to the penalties attached to the “retroactive assessments.”
http://www.in.gov/ibtr/files/Property_Development_Company_Four_LLC_27-002-09-1-5-00001_etc.pdf
