The
Indiana Board’s final determination stated the following rationale for denying
Kellam a homestead deduction on his Fountain County property:
The most
important reason the deduction should have been denied is that [Kellam] and
co-owner Myers both had homesteads in other Indiana counties when the
application was filed.1 Therefore, neither one was eligible for the homestead
standard deduction on the subject property. Contrary to what the [Assessor]
said during the hearing, an individual may have only one homestead standard
deduction per year.2 The subject property needed to be [Kellam’s] principal
residence, as a person cannot have more than one principle [sic] residence.
(Cert.
Admin. R. at 25 ¶ 32 (footnote added).) On appeal, Kellam raises several issues
that the Court restates as whether the Indiana Board’s final determination is
unsupported by substantial or reliable evidence or is contrary to law.
Only an
individual or married couple can obtain a homestead deduction on the individual’s
or married couple’s property. See I.C. § 6-1.1-12-37(e). But see I.C. §
6-1.1-12-37(a)(2)(B)(iii)-(iv), (e)(3)(B), (k) (permitting certain entities to
claim the deduction on an individual’s or married couple’s homestead under
certain circumstances). Moreover, an individual or married couple can generally
have a homestead deduction on just one property – a “principal place of
residence.” See I.C. § 6-1.1-12-37(a)(2); I.C. § 6-1.1-12-37(h)(1)-(2) (denying
the homestead deduction to individuals or married couples who claim the
deduction on more than one property in a given year, with the exception
discussed supra note 2.)
Kellam and
Myers both signed the 2009 homestead deduction application for the Fountain County
property they co-owned. Nonetheless, they were ineligible to claim a homestead
deduction together because they were not a married couple. See I.C.
6-1.1-12-37(e).3 The Indiana Board concluded, however, that neither Kellam nor
Myers was individually eligible for a homestead deduction on the Fountain
County property because “both had homesteads in other Indiana counties.” (Cert.
Admin. R. at 25 ¶ 32.) Myers had a homestead deduction on a property in Grant
County in 2010. (Cert. Admin. R. at 93, 128.) Accordingly, she could not claim
a second homestead deduction on the Fountain County property in 2010. See I.C.
§ 6-1.1-12-37(a)(2), (h)(1)-(2).
Kellam
would also be ineligible for a homestead deduction on the Fountain County
property in 2010 if he continued to receive a homestead deduction on his Wells
County property in 2010. In April 2011, the Assessor’s records showed that
Kellam still had a homestead deduction on his Wells County property in 2010.
(See Cert. Admin. R. at 3, 93, 105.) Nonetheless, Kellam submitted further
evidence indicating that the Wells County Auditor subsequently removed the 2010
homestead deduction, that Kellam paid the additional tax owed as a result of
its removal, and that Kellam notified the Fountain County Assessor of these
events. (See Cert. Admin. R. at 63-64, 71-72, 138-143.)
To
demonstrate that he did not receive a homestead deduction for his Wells County
property in 2010, Kellam presented a document he received from the Fountain
County Assessor containing information about the Wells County property. (Cert.
Admin. R. at 71-72, 138-40.) Kellam pointed out that, although the document
indicated that he received a $29,760 homestead deduction in 2010, it also
showed that he paid $477.08 in property taxes: the total amount of property tax
due if the $29,760 homestead deduction was not applied. (See Cert. Admin. R. at
64, 72, 141-43.) Kellam testified that this document, together with his other
evidence, established that he had paid taxes on his Wells County property in an
amount inconsistent with receiving the benefit of the homestead deduction in
2010. (See Cert. Admin. R. at 140-43.) The Assessor agreed and presented no
contradictory evidence. (See Cert. Admin. R. at 78-85, 100-14, 118, 123-25,
127-31, 133-38, 141-144, 146-147, 156, 158-72, 176-77.) Therefore, a finding
that Kellam did not qualify for a homestead deduction on the 2010 Fountain
County property because he had a 2010 homestead deduction on a Wells County
property is unsupported by substantial or reliable evidence. See Meijer Stores
Ltd. P’ship v. Smith, 926 N.E.2d 1134, 1139 (Ind. Tax Ct. 2010) (reversing the
Indiana Board’s determination in favor of an assessor as not based on
substantial evidence because the assessor “presented no evidence against which
to weigh or discount” the taxpayer’s evidence).
The Indiana Board also appears to have concluded
that the Fountain County property was not Kellam’s “principal place of
residence” because Kellam was not physically residing there. (See Cert. Admin.
R. at 21 ¶21, 25 ¶ 32.) The legal standard for determining an individual’s
principal place of residence, however, depends on the “intention” to return to
the property after an absence, not continuous physical presence at the
property. See 50 I.A.C. 24-2-5. In addition to explaining that he was not
physically residing at the property because he was renovating it, Kellam
testified that he alone intended to seek the homestead deduction for the
Fountain County property. (See Cert. Admin. R. at 91-92, 97-98, 120.) Moreover,
as further evidence of his intent, the certified administrative record reveals that
he used the Fountain County property as his mailing address; as the location of
his voter registration; and as the address on his driver’s license, bank
statements, and tax returns. (See Cert. Admin. R. at 173.) Accordingly, the
Indiana Board’s conclusion that the Fountain County property was not Kellam’s
principal place of residence is contrary to law.
http://www.in.gov/judiciary/opinions/pdf/12101301mbw.pdfThe Board's original determination may be found here:
http://www.in.gov/ibtr/files/Kellam_23-016-10-3-5-00001.pdf
