Tuesday, May 13, 2014

Board Applies New Burden Shifting Law to Case; Finds Assessor Met Burden to Support Property's Increased Value

Excerpts of the Board's Determination follow:

Indiana Code section 6-1.1-15-17.2(d) “applies to real property for which the gross assessed value of the real property was reduced by the assessing official or reviewing authority in an appeal conducted under IC 6-1.1-15.” Under those circumstances, “if the gross assessed value of real property for an assessment date that follows the latest assessment date that was the subject of an appeal described in this subsection is increased above the gross assessed value of the real property for the latest assessment date covered by the appeal, regardless of the amount of the increase, the county assessor or township assessor (if any) making the assessment has the burden of proving that the assessment is correct.” This change is effective March 25, 2014, and has application to all appeals pending before the Board.

27. For 2011, the subject property was initially assessed $177,600. After an informal hearing through the Board’s Facilitation Program, the Assessor issued a Form 115 reducing the 2011 land assessment to $88,200. The land assessment for 2012 is $173,400. Because the Petitioner successfully appealed the land assessment in 2011, the Assessor has the burden for the 2012 land assessment under section 17.2(d).

c. Here, Deputy Assessor Hawk supported the subject land assessment in multiple ways. First, he presented a GIS map showing five vacant land sales in the subject neighborhood that sold at prices ranging from $20,819 to $23,868 per acre during 2005 to 2011. He also provided the property record card and sales disclosure forms. Respondent Exhibit 4-13, 25. The subject land was assessed at $22,177 per acre for a total assessment of $173,400.

d. Second, Hawk presented a comparable sales analysis. The analysis shows land sales on December 22, 2011, and November 19, 2010, for $23,868 and $20,819 per acre. Respondent Exhibits 3, 4-5, 12-13. According to the DLGF, assessing officials use sales of properties occurring from March 2, 2010, through March 1, 2012, for a 2012 assessment. Therefore, the sale dates on these properties are relevant. The two comparable properties and the subject property are all in the same Shadow Creek neighborhood. Hawk testified that he visually inspected the properties and all three properties have the same or similar topography and view. Hawk testimony. Furthermore, based on the GIS map, the two comparable properties share a property line. There is a slight difference in the shape of the properties that does not affect the market value. Hawk testimony. With respect to the difference in size, the Deputy Assessor adjusted each comparable. Id.; Respondent Exhibit 3.

e. Deputy Assessor Hawk meaningfully explained how the comparable land and the subject land are similar and he accounted for their differences. This evidence supports the land assessment and is probative because it explains how the comparable properties compare to the subject land and how the size differences affect value. Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 471-72 (Ind. Tax. Ct. 2005).

f. Next, Deputy Assessor Hawk introduced four listings in the subject neighborhood. These listings reference the price, location, size, view, topography, and shape. Respondent Exhibit 23-24. After he adjusted each property for any difference in size, the market value for each property is $186,750 whereas the subject land is assessed at $173,400. Hawk testimony; Respondent Exhibit 23-24. The Petitioner objected to this evidence as hearsay and while the Board admitted the evidence over the objection, this evidence may not form the sole basis of the determination, which it does not. Further, to the extent real estate listings, on their own, are generally not probative evidence of market value, in this case, this evidence simply provides further support for the other probative evidence that supports the land assessment.

g. While the Assessor’s evidence is not absolutely compelling, as a whole it is sufficient to make a prima facie case that the 2012 assessment is correct. 

h. In rebuttal, the Petitioners’ evidence included the Appraisal Report for a nearby property located at 3117 McComb Road, a GIS map, and the Form 115 issued for the 2011 assessment reducing the land assessment to $88,200. The Board will start with the 2011 Form 115 issued by the PTABOA.

i. The Petitioner asserts that the 2011 Form 115 reducing her land assessment indicates the Assessor’s acceptance that the appraisal for a neighboring property has the proper value for the subject land for 2012. This argument is without merit. The Board finds that the Form 115 reducing the value of the subject property for 2011 lacks probative value for a 2012 appeal. Each tax year and each assessment year stands alone. Evidence of a property’s assessment for one year does not necessarily show its true tax value for a different assessment year. Fleet Supply, Inc. v. State Board of Tax Commissioners, 747 N.E.2d 645, 650 (Ind. Tax Ct. 2001) (citing Glass Wholesalers, Inc. v. State Board of Tax Commissioners, 568 N.E.2d 1116, 1124 (Ind. Tax Ct. 1991). Therefore, the 2011 Form 115 reducing the land assessment has no probative value for the 2012 land assessment.

j. Next, the Board turns to the 2011 Appraisal for 3117 McComb Road. This Appraisal is not credible evidence of the land value for the subject property for assessment year 2012. Using the cost approach, the Appraisal arrived at a land value of $62,240. There is no indication in the Appraisal, other than a reference to the 2007 sale price, how the appraiser arrived at this value. Petitioner Exhibit 3, pgs. 2-3. The “sale” referenced in the Appraisal was between Carol Cooper and Gregory Cooper for $62,240. But the sales disclosure statement for this transaction reveals it was a quitclaim deed and that “no money changed hands.” Respondent Exhibit 2.

k. The 2011 Real Property Assessment Manual defines market value as the “most probable price, as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms, for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress.” REAL PROPERTY ASSESSMENT MANUAL at 5-6. The terms of this transaction revealed in the sales disclosure form indicate that no cash or equivalent was exchanged for the property. Further, a quitclaim change of ownership from mother to son where no money changed hands is not indicative of a price that 3117 McComb Road would sell for after exposure in a competitive market. Therefore, the Appraisal’s value based on the cost approach that relies on this 2007 transaction is highly conclusory and appears to be based on a non arms-length transaction between Carol Cooper and Gregory Cooper. Such a transaction is not a reliable indicator of value.

l. The Appraisal is also hearsay. Specifically, the 2011 Appraisal Report and Star Bank’s letter are hearsay, to which the Assessor properly objected. Although the Assessor’s hearsay objection was overruled, if hearsay “is properly objected to and does not fall within a recognized exception to the hearsay rule, the resulting determination may not be based solely upon the hearsay.” 52 IAC 2-7-3. The 2011 Appraisal Report and Star Bank’s letter cannot form the sole basis of the Board’s decision. Given that the Petitioner offered no other probative evidence of the land’s market value-in-use, the Board finds that the Petitioner failed to rebut the evidence put forth by the Assessor supporting the 2012 assessment.