Millennium Real Estate Inv., LLC v. Assessor, 49T10–1008–TA–42.

979 N.E.2d 192

MILLENNIUM REAL ESTATE INVESTMENT, LLC, an Indiana Limited Liability Company, Petitioner,

v.ASSESSOR, BENTON COUNTY, Indiana, Respondent.

No. 49T10–1008–TA–42.

Tax Court of Indiana.

Nov. 5, 2012.

Jerome L. Withered, Withered Burns & Persin, LLP, Lafayette, IN, Attorney for Petitioner.

Marilyn S. Meighen, Meighen & Associates, P.C., Carmel, IN, Attorney for Respondent.

FISHER, Senior Judge.

Millennium Real Estate Investment, LLC appeals the final determination of the Indiana Board of Tax Review upholding the assessments of its real property for the 2008 tax year. The Court affirms.

FACTS AND PROCEDURAL HISTORY

Millennium owns three parcels of land in Boswell, Indiana, consisting of approximately twenty-one and a half acres and containing an industrial building and three Quonset storage buildings. For the 2008 tax year, the Benton County Assessor assigned Millennium's property a total assessed value of $639,800 ($230,800 for land and $409,000 for improvements).

Millennium believed the assessments were too high and, therefore, sought review first with the Benton County Property Tax Assessment Board of Appeals and then with the Indiana Board. On April 7, 2010, the Indiana Board held a hearing during which Millennium offered the testimony of its managing partner, Gene McGowen, and an appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP). Millennium's Appraisal estimated the value of its property at $325,000 as of March 1, 2008, and stated that the property was sold in December 2003 for $182,000. Millennium also presented an Asset Purchase Agreement, which provided that it purchased its property for $193,817 on June 30, 2008. In contrast, the Assessor presented an appraisal, also completed in conformance with USPAP, which valued the property at $640,000 as of January 10, 2007.^{1 ,2} On July 6, 2010, the Indiana Board issued its final determination upholding Millennium's assessments.

On August 16, 2010, Millennium initiated this original tax appeal. The Court heard oral argument on February 18, 2011. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn an Indiana Board final determination bears the burden of demonstrating its invalidity. Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 313 (Ind. Tax Ct.2010) (citation omitted). Consequently, Millennium must demonstrate to the Court that the Indiana Board's final determination is, for example, arbitrary, capricious, or unsupported by substantial evidence. See IND.CODE § 33–26–6–6(e)(1), (5) (2012).

ANALYSIS

On appeal, Millennium asserts that the Indiana Board's final determination is incorrect for two main reasons. First, Millennium claims that the Indiana Board simply ignored its December 2003 sales evidence and improperly discounted its June 2008 sales evidence. Millennium also claims that the Indiana Board erred in assigning greater weight to the Assessor's Appraisal. The Court will address these claims in turn.

I.

Millennium asserts that the Indiana Board erred in ignoring its December 2003 sales evidence and in discounting its June 2008 sales evidence because that evidence showed that its parcels were recently sold, in two separate arm's length transactions, for well below their collective assessed values. (See Pet'r Br. at 9–11.) Therefore, explains Millennium, the sales evidence indicated that its assessments were incorrect. The Court disagrees.

When a taxpayer offers probative evidence to support its case during an Indiana Board hearing, the Indiana Board must deal with that evidence in some meaningful manner. See Clark v. State Bd. of Tax Comm'rs, 694 N.E.2d 1230, 1235 (Ind. Tax Ct.1998). Probative evidence is "evidence sufficient to establish a given fact that, if not contradicted, will remain sufficient." Meadowbrook N. Apts. v. Conner, 854 N.E.2d 950, 953 (Ind. Tax Ct.2005) (citation omitted). The December 2003 sales evidence, which was contained within the Assessor's Appraisal, stated:

The [parcels] ha[ve] been under the ownership of Richard Robinson or related entities since 1996. In December 2003, title to the [parcels] was transferred from Ralph Richard Robinson, an undivided 90/100th interest and James B. Freeland, an undivided 10/100th interest to the current owner, Robinson Family Enterprises, LLC. At that time, the undivided 10 percent interest of James B. Freeland was acquired in both the subject [parcels] and another 38,688 square foot industrial property located at 5174 East Main Street (County Road 894 South) in Foresman, Indiana. The price for the acquisition of this interest in both properties is reported by Dick Robinson to be $182,000.00.

(Cert. Admin. R. at 237 (emphasis added).) This evidence simply is not probative in demonstrating that Millennium's 2008 assessments are incorrect for several reasons.

First, this evidence establishes that the subject parcels and another property sold for $182,000, providing no indication of the individual value of either property. Next, there is no explanation as to how the December 2003 sales price relates to the effective valuation date for a 2008 assessment (i.e., January 1, 2007). See 50 IND. ADMIN. CODE 21–3–3(a)–(b) (2008) (see http://www.in.gov/legislative/iac/) (repealed 2010); see also, e.g., Big Foot Stores LLC v. Franklin Twp. Assessor, 919 N.E.2d 621, 625–26 (Ind. Tax Ct.2009). Furthermore, the arm's length nature of the sale is questionable because at least two of the parties to the transaction appear to be related. See, e.g., Austin v. Indiana Family & Soc. Srvs. Admin., 947 N.E.2d 979, 985 (Ind.Ct.App.2011) (stating an arm's length transaction "refers to dealings between two parties who are not related and not in a confidential relationship, and who are presumed to have roughly equal bargaining power") (citation omitted). Accordingly, the Court finds that Millennium has not shown that the Indiana Board erred with respect to its December 2003 sales evidence claim.

Similarly, Millennium's June 2008 sales evidence does not probatively demonstrate that its 2008 assessments are incorrect. Indeed, during the administrative hearing, McGowen repeatedly testified that the seller, an acquaintance, was experiencing financial difficulties, that he had not been able to sell or refinance the property for over two years, and that his lender was threatening foreclosure. (See Cert. Admin. R. at 329–32, 337–55.) McGowen also testified that he perceived the $193,817 purchase price to be "a deal," and that he considered the transaction to be at arm's length despite the fact that he indicated otherwise on the sales disclosure form. (Cf. Cert. Admin. R. at 300–03 (indicating that the sale was a "compulsory transaction as a result of foreclosure or express threat of foreclosure, divorce, court order, judgment, condemnation, or probate") with 354–62.) In turn, the record evidence did not indicate that foreclosures or similar sales were the norm for this type of property. See, e.g., Lake Cnty. Assessor v. U.S. Steel Corp., 901 N.E.2d 85, 91–92 (Ind. Tax Ct.2009) (explaining when bankruptcy sales can be indicative of a property's assessed value), review denied. Moreover, Millennium's Appraisal, which valued the parcels at $325,000, even stated that the June 2008 sale "appear[ed] to be at below market rates[.]" (Cert. Admin. R. at 157, 160.) Therefore, the Indiana Board's conclusion that the June 2008 sales evidence lacked probative value was not arbitrary, capricious, or unsupported by substantial evidence.

II.

The next issue before the Court is whether the Indiana Board erred in assigning greater weight to the Assessor's Appraisal. The Court will address Millennium's specific claims in turn.

A.

First, Millennium asserts that the Indiana Board erred in assigning more weight to the Assessor's Appraisal because it used the "wrong" standard in estimating the value of the subject property. (See Pet'r Br. 11–12.) Millennium explains that in Indiana, the assessed value of real property is based on its value in-use, not its fair market value. (See Oral Argument Tr. at 3 – 9, 25 – 28.) Consequently, Millennium maintains that the Indiana Board should have completely rejected the Assessor's Appraisal, given its fair market value estimation.

The Court, however, must disagree.

While Indiana assesses real property on the basis of its market value-in-use, this does not mean that a subject property's assessed value and its market value³ will never coincide. See IND.CODE § 6–1.1–31–6(c) (2008) ; 2002 Real Property Assessment Manual (2004 Reprint) (Manual) (incorporated by reference at 50 IND. ADMIN. CODE 2.3–1–2 (2002 Supp.)) at 2 (footnote added). For instance, when a property's current use is consistent with its highest and best use, and there are regular exchanges within its market so that ask and offer prices converge, a property's market value-in-use will equal its market value because the sales price fully captures the property's utility. See Manual at 2. On the other hand, when a property's current use is inconsistent with its highest and best use, then market value-in-use will not equal market value because the sales price will not reflect the property's utility. See id.

Here, both Appraisals provide that the current industrial use of Millennium's property is consistent with its highest and best use as improved. (Cert. Admin. R. at 160, 260–62.) Consequently, without anything more, the Court cannot say that the Assessor's Appraisal utilized an improper assessment standard in estimating the value of Millennium's property. Accordingly, the Court concludes that the Indiana Board did not err in assigning greater weight to the Assessor's Appraisal with respect to this claim.

B.

Next, Millennium argues that because the Assessor's Appraisal "was procured so that the owners could obtain financing[,]" its estimate of value probably was overstated. (See Pet'r Reply Br. at 2, 4; Pet'r Br. at 12.) Millennium therefore argues...