During the 2006 and 2007 tax years (the years at issue), Kooshtard owned two acres of land in Shelbyville, Indiana on which a convenience store and gas station were located. In valuing those two acres, the assessing officials applied a positive influence factor of 100% that increased their value from a base rate of $200,000 per acre to $400,000 per acre.
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During the Indiana Board hearing, Kooshtard claimed that the application of the positive influence factor of 100% to its land was erroneous because adjacent properties did not have the factor and uniformity requires that it be applied to all similar land. (See Cert. Admin. R. at 64, 141-46.) Kooshtard also claimed that sales data from similar properties indicated that its land was overassessed. (See Cert. Admin. R. at 2, 149-50.)4 On appeal, Kooshtard restates its uniformity argument.
The Indiana Board determined that Kooshtard’s argument that its land was not uniformly assessed because comparable land was not assessed in the same manner was insufficient to raise a prima facie case. (See Cert. Admin. R. at 35-36.) To establish a prima facie case, a petitioner must present “evidence that is ‘sufficient to establish a given fact and which if not contradicted will remain sufficient [to establish that fact].’” Inland Steel Co. v. State Bd. of Tax Comm’rs, 739 N.E.2d 201, 211 (Ind. Tax Ct. 2000) (citation omitted) (emphasis added), review denied. Consequently, Kooshtard needed to present to the Indiana Board some type of relevant market based evidence to support its claim. See, e.g., Lake Cnty. Assessor v. U.S. Steel Corp., 901 N.E.2d 85, 93-94 (Ind. Tax Ct. 2009) (explaining that market based evidence may be used to quantify the impact of a negative influence factor), review denied.
Kooshtard did not present any market-based evidence to support its claim; instead, Kooshtard merely concluded that because the Assessor did not apply the same positive influence factor of 100% to a nearby office building, automotive sales/service center, and fast-food restaurant, the factor should be removed from its assessment. (See Cert. Admin. R. at 64, 73-82, 141-46, 155, 200-01, 206.) Conclusory statements are insufficient to make a prima facie case because they are not probative evidence (i.e., “evidence that ‘tends to prove or disprove a point in issue’”). See, e.g., Inland Steel, 739 N.E.2d at 211-12 (citations omitted). Accordingly, Kooshtard has not persuaded the Court that the Indiana Board’s final determination is erroneous on this basis.
Kooshtard also presented new arguments for the first time on appeal. One argument is that its assessments are invalid because the Assessor’s claim that sales data supports the assessments is an impermissible post hoc rationalization that lacks any evidentiary support and implies that the use of selective reappraisal is proper when it is not. (See Pet’r Br. at 15-17, 27-29 (footnote added).) A second argument is that the Indiana Board’s final determination ignores the “rule of law” because the Assessor was not required to show compliance with Indiana’s assessment guidelines in applying the positive influence factor of 100% to its land.7 (See Oral Argument Tr. at 29-30; Pet’r Reply Br. at 12-14; Pet’r Br. at 11-27 (footnote added).)
It is well-settled that this Court generally cannot review an issue or argument raised for the first time on appeal because there would be no written findings in the record for the Court to review. See, e.g., Scheid v. State Bd. of Tax Comm’rs, 560 N.E.2d 1283, 1284-86 (Ind. Tax Ct. 1990); IND. CODE § 33-26-6-3(b) (2013) (limiting the Court’s review to the issues raised by the litigants during the Indiana Board proceedings or the issues discussed by the Indiana Board in its final determination). The record in this case establishes that Kooshtard’s new arguments were not presented to the Indiana Board. Consequently, the Court finds that Kooshtard has waived these arguments because it could have, but failed to, present them to the Indiana Board.
