The opinion
ATTORNEYS FOR PETITIONERS: ATTORNEYS FOR RESPONDENT:
MARK E. GIAQUINTA JEFFREY T. BENNETT
MELANIE L. FARR BRADLEY D. HASLER
SARAH L. SCHREIBER MARGARET M. CHRISTENSEN
HALLER & COLVIN, P.C. BINGHAM GREENEBAUM DOLL LLP
Fort Wayne, IN Indianapolis, IN
ATTORNEYS FOR AMICUS CURIAE:
MARILYN S. MEIGHEN
ATTORNEY AT LAW
Carmel, IN
Oct 30 2015, 3:09 pm
JOHN S. DULL
BOARD OF COMMISSIONERS OF
LAKE COUNTY
Crown Point, IN
_____________________________________________________________________
IN THE
INDIANA TAX COURT
_____________________________________________________________________
WASHINGTON TOWNSHIP ASSESSOR, )
ALLEN COUNTY ASSESSOR, )
and ALLEN COUNTY PROPERTY TAX )
ASSESSMENT BOARD OF APPEALS, )
)
Petitioners, )
)
v. ) Cause No. 49T10-1102-TA-00013
)
VERIZON DATA SERVICES, INC., )
)
Respondent. )
______________________________________________________________________
ON APPEAL FROM THE FINAL DETERMINATION
OF THE INDIANA BOARD OF TAX REVIEW
FOR PUBLICATION
October 30, 2015
WENTWORTH, J.
The Washington Township Assessor, the Allen County Assessor, and the Allen
County Property Tax Assessment Board of Appeals (collectively Allen County) claim
that the Indiana Board of Tax Review erred in granting summary judgment to Verizon
Data Services, Inc. because the Allen County Property Tax Assessment Board of
Appeals (PTABOA) failed to issue its final determination within the statutorily prescribed
period. Upon review, the Court finds that the Indiana Board did not err. 1
FACTS AND PROCEDURAL HISTORY
On May 15, 2005, Verizon filed its Business Tangible Personal Property Return
with the Washington Township Assessor, reporting the assessed value of its personal
property at $21 million for the 2005 tax year. On September 15, 2005, the Township
Assessor issued a Notice of Assessment/Change (Form 113/PP) to Verizon that
increased the 2005 personal property assessment to nearly $58 million.
On October 28, 2005, Verizon informed the Township Assessor that it was
seeking review of the Form 113/PP with the PTABOA pursuant to Indiana Code § 6-1.1-
15-1 and that the Township Assessor should contact its attorneys to schedule a
preliminary conference. When the Township Assessor contacted one of Verizon’s
attorneys, he requested that the conference be scheduled at a time that allowed
Verizon’s representatives to appear in person. The Township Assessor and Verizon
ultimately held the preliminary conference on July 12, 2006. When the two parties were
unable to reach an agreement, one of Verizon’s attorneys requested that the PTABOA
hearing not be held until certain matters could be discussed with his client.
On October 26, 2006, the PTABOA held a hearing. On May 7, 2007, the
1
In a decision issued concurrently with this decision, the Court has affirmed the Indiana
Board’s final determination that reduced Verizon’s 2007 personal property assessment from
$50,261,538 to $16,200,000. See Allen Cnty. Assessor v. Verizon Data Servs., Inc. (Verizon II),
No. 49T10-1408-TA-00053 (Ind. Tax Ct. Oct. 30, 2015).
2
PTABOA issued a Notification of Final Assessment Determination (Form 115) that
reduced Verizon’s personal property assessment to $50,777,790 for the 2005 tax year.
On June 11, 2007, Verizon appealed to the Indiana Board, asserting that certain
statutory and constitutional valuation provisions required its personal property
assessment to be further reduced. (See, e.g., Cert. Admin. R. at 3-29.) On January 29,
2009, Verizon moved for summary judgment on the sole issue that the PTABOA’s Form
115 was untimely because it should have been issued by October 30, 2005, pursuant to
Indiana Code §§ 6-1.1-16-1 to -4 (Chapter 16). (See Cert. Admin. R. at 185-89, 407-
08.) On April 13, 2009, Allen County filed a cross-motion for summary judgment,
asserting that the PTABOA’s Form 115 was timely because Indiana Code § 6-1.1-15-1’s
(Section 15-1) deadlines applied, not Chapter 16’s deadlines. (See, e.g., Cert. Admin.
R. at 225-34, 355-62.) Alternatively, Allen County argued that the doctrines of waiver
and estoppel prevented the Chapter 16 deadlines from being invoked. (See, e.g., Cert.
Admin. R. at 233-34.) On December 28, 2010, after conducting a hearing, the Indiana
Board issued its final determination granting summary judgment in favor of Verizon and
against Allen County.
On February 9, 2011, Allen County initiated this original tax appeal. The Court
heard oral argument on February 5, 2014. Additional facts will be supplied if 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). The Court will reverse a final determination if
it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
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law; contrary to constitutional right, power, privilege, or immunity; in excess of or short
of statutory jurisdiction, authority, or limitations; without observance of the procedure
required by law; or unsupported by substantial or reliable evidence. IND. CODE § 33-26-
6-6(e)(1)-(5) (2015).
DISCUSSION
On appeal, Allen County claims that the Indiana Board erred in determining that
as a matter of law the Chapter 16 deadlines rather than the Section 15-1 deadlines
applied to the PTABOA’s appeals process. Alternatively, Allen County claims that the
Indiana Board erred in determining there was no genuine issue of material fact whether
Verizon waived or was estopped from asserting that the Chapter 16 deadlines applied.
I. Section 15-1 and Chapter 16
During the 2005 tax year, Section 15-1 provided that when a taxpayer appealed
an assessment of tangible property by a township official, the county property tax
assessment board of appeals must hold a hearing “not later than one hundred eighty
(180) days” after the taxpayer filed a written request for, and attended, a preliminary
conference with the township official. See IND. CODE § 6-1.1-15-1(a), (b), (f), (k) (2005)
(amended 2006). After the hearing, Section 15-1 required the county property tax
assessment board of appeals to prepare a written decision “not later than one hundred
twenty (120) days after the hearing.” See I.C. § 6-1.1-15-1(k).
Chapter 16 provided the time period within which “an assessing official, county
assessor, or county property tax assessment board of appeals may [] change the
assessed value claimed by a taxpayer on a personal personal property return[.]” IND.
CODE § 6-1.1-16-1(a)(1) (2005) (amended 2006). Moreover, Chapter 16 further
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provided that:
[a] county assessor or county property tax assessment board of
appeals must make a change in the assessed value [claimed by a
taxpayer on a personal property return], including the final
determination by the board of an assessment changed by a
township or county assessing official, or county property tax
assessment board of appeals, and give the notice of the change [as
required by Indiana Code § 6-1.1-3-20] on or before the latter of:
(A) October 30 of the year for which the assessment is
made; or
(B) five (5) months from the date the personal property
return is filed if the return is filed after May 15 of the
year for which the assessment is made.
I.C. § 6-1.1-16-1(a)(2) (emphasis added).2
Allen County contends that the deadlines provided in Section 15-1 applied to the
PTABOA’s issuance of the Form 115 because Section 15-1 generally governs all
appeals and the PTABOA was acting as a quasi-adjudicator under Section 15-1 when it
reduced Verizon’s personal property assessment in 2007. (See Pet’rs’ Br. Supp. V. Pet.
Judicial Review Final Determination [Indiana Board] (“Pet’rs’ Br.”) at 8-11.)
Furthermore, Allen County explains that Chapter 16 governs its actions not in the
context of an appeal, but only when it acts in its role as an assessing official.3 (See
Pet’rs’ Br. at 9-13.)
Chapter 16 applies and its deadlines are triggered when, as here, an assessor,
the county property tax assessment board of appeals, or the Department of Local
2
Although the 2006 amendments to Section 15-1 and Chapter 16 do not materially affect the
disposition of this case, the Court refers to the version of the statutes that were in effect at the
time that Verizon appealed the Form 113/PP to the PTABOA.
3
Similarly, Amicus Curiae argues that the absence of the word “appeal” and the term “petition
for review” in Indiana Code § 6-1.1-16-1(a) signals that the Legislature intended Chapter 16
deadlines to apply solely to the assessment process. (See Amicus Curiae Br. Lake Cnty.
Assessor (“Amicus Br.”) at 11-19.)
5
Government Finance (DLGF) changes the assessed value claimed by a taxpayer on its
personal property return.4 See I.C. § 6-1-1-16-1(a)(1)-(3). Nonetheless, the plain
language of Chapter 16 does not indicate that it applies solely to the assessment
process as Allen County urges. Instead, Chapter 16 specifically states certain
deadlines not only apply to when an assessor or county property tax assessment board
of appeals must make a change to a personal property assessment, but also apply to
when the county property tax assessment board of appeals must issue its “final
determination . . . of an assessment changed by a township or county assessing
official.” See I.C. § 6-1.1-16-1(a)(2) (emphasis added).
Allen County maintains that the term “final determination” as used in Indiana
Code § 6-1.1-16-1(a)(2) refers to the end of the assessment process, i.e., when an
assessor or county property tax assessment board of appeals notifies a taxpayer that its
personal property assessment has changed.5 (See Pet’rs’ Br. at 20-21; Oral Arg. Tr. at
16-17, 21-23.) While the term “final determination” is not defined under Chapter 16,
Indiana courts have explained that a final determination is “an order that determines the
rights of, or imposes obligations on, the parties as a consummation of the administrative
process.” See, e.g., State Bd. of Tax Comm’rs v. Ispat Inland, Inc., 784 N.E.2d 477,
481 (Ind. 2003) (emphases added) (citation omitted). See also Mills v. State Bd. of Tax
Comm’rs, 639 N.E.2d 698, 701 (Ind. Tax Ct. 1994) (indicating that a county property tax
4
The Chapter 16 deadlines do not apply if a taxpayer files either a fraudulent return or one that
does not substantially comply with the relevant statutes and regulations. See IND. CODE § 6-
1.1-16-1(d) (2005) (amended 2006). Allen County has not claimed that Verizon acted
fraudulently or that its 2005 personal property return did not substantially comply with the
applicable statutes and regulations. (See, e.g., Cert. Admin. R. at 64 n.3.)
5
In contrast, Amicus Curiae contends that Chapter 16’s assessment process ends when a
county property tax assessment board of appeals approves or disapproves of an assessor’s
preliminary valuation change. (See Amicus Br. at 11, 13-15.)
6
assessment board of appeals issued a “final determination” after it held a hearing on the
taxpayer’s appeal). Thus, Allen County’s contention that the term “final determination”
in Chapter 16 refers solely to the end of the assessment process conflicts with its
common meaning that refers to the culmination of the administrative appeals process.
Furthermore, the view that Chapter 16 applies just to the assessment process is
dashed by the provisions of Chapter 16 that specifically provide appeal procedures.
See Board of Comm’rs of Jasper Cnty. v. Vincent, 988 N.E.2d 1280, 1282 (Ind. Tax Ct.
2013) (stating that a statute and its related provisions must be read as a whole, not
piecemeal). For example, Indiana Code § 6-1.1-16-2 provides an appeal procedure for
use by a township or county assessor in the event a county property tax assessment
board of appeals fails to act within the statutorily prescribed periods. See IND. CODE §
6-1.1-16-2 (2005) (amended 2007). In addition, Indiana Code § 6-1.1-16-1(e) provides
a procedure for a taxpayer to appeal the DLGF’s preliminary change in assessed value.
See I.C. § 6-1.1-16-1(e). It follows, therefore, that the Legislature intended the
PTABOA to adhere to the Chapter 16 deadlines both when acting in its role as an
assessor and when serving as a quasi-adjudicator regarding personal property
assessments.
Nevertheless, Allen County argues that applying the Chapter 16 deadlines to the
administrative appeals process would produce absurd results by nullifying or
7
impermissibly shortening certain appeals procedures set forth in Section 15-1.6 (See
Pet’rs’ Br. at 13-17.) More specifically, Allen County explains that if a county assessor
changed a taxpayer’s personal property return on October 30, the county property tax
assessment board of appeals could not review that change because the review must be
completed on the same day instead of several months later. (See Pet’rs’ Br. at 21-22.)
Compare also I.C. § 6-1.1-16-1(a)(2)(A) with I.C. § 6-1.1-15-1(k). Allen County further
explains that applying the Chapter 16 deadlines would eviscerate Section 15-1’s
preliminary conference requirement and the county assessor would have to file an
appeal with the Indiana Board pursuant to Indiana Code § 6-1.1-16-2 before it even
knew whether the taxpayer intended to appeal the assessment change. (See Pet’rs’ Br.
at 21-22.)
When statutes concern the same subject matter, as in this case, they are in pari
materia. See Lake Cnty. Assessor v. Amoco Sulfur Recovery Corp., 930 N.E.2d 1248,
1254-55 (Ind. Tax Ct. 2010), review denied. Thus, absent a clearly expressed
legislative intent to the contrary, the Court will regard the statutes as effective,
harmonize them, and accord full application to each unless they are irreconcilable and
in hopeless conflict. Hamilton Cnty. Assessor v. Allisonville Road Dev., LLC, 988
N.E.2d 820, 824 n.8 (Ind. Tax Ct. 2013), review denied. When the statutes are in
hopeless conflict, the specific provisions take priority over the general provisions. See
6
In addition, Amicus Curiae argues that “[t]he Court has already determined that the
assessment process is separate and apart from the appeals process, and that [the] time
limitations contained in one process do not regulate the other.” (Amicus Br. at 5 (citing Joyce
Sportswear Co. v. State Bd. of Tax Comm’rs, 684 N.E.2d 1189, 1191-92 (Ind. Tax Ct. 1997),
appeal dismissed).) In Joyce Sportswear, however, the Court determined that the express
terms of Indiana Code § 6-1.1-9-4 provided that it did not apply to Chapter 15. See Joyce
Sportswear, 684 N.E.2d at 1192. The Court, therefore, did not hold that the statutory framework
for assessments and appeals were mutually exclusive in all instances.
8
Componx, Inc. v. Indiana State Bd. of Tax Comm’rs, 741 N.E.2d 442, 446 (Ind. Tax Ct.
2000).
While Allen County’s bright-line distinction that Section 15-1 applies to the
PTABOA’s appeals process and Chapter 16 applies to the PTABOA’s assessment
process would allow an assessing official to make full use of the deadlines in each, this
distinction contravenes the distinct purposes of Section 15-1 and Chapter 16.
Specifically, Section 15-1, by its own provisions, generally governs appeals of both real
and personal property assessments. See I.C. § 6-1.1-15-1. In turn, the provisions of
Chapter 16 specifically apply to an assessing official’s change to a personal property
assessment or an appeal of that change. See, e.g., I.C. § 6-1.1-16-1(a). The
Legislature has explained that:
[t]he provisions of [Chapter 16] do not extend the period within
which an assessment or a change in an assessment may be made.
[Thus, i]f a shorter period for action and notice is provided
elsewhere in [Article 1.1], that provision controls. However, if any
other conflict exists between the provisions of [Chapter 16] and the
other provisions of [Article 1.1], the provisions of [Chapter 16]
control with respect to [personal property] assessment adjustments.
IND. CODE § 6-1.1-16-4 (2005) (emphasis added). The deadlines within which a change
in assessment may be made are not longer under Chapter 16 than under Section 15-1.
Compare I.C. § 6-1.1-15-1 with I.C. § 6-1.1-16-1. Thus, to the extent the deadlines
under Section 15-1 and Chapter 16 conflict, Chapter 16 governs because it applies
specifically to appeals of an assessing official’s change to a personal property
assessment; whereas, Section 15-1 applies generally to appeals concerning real and
9
personal property assessments.7 See Componx, 741 N.E.2d at 446. This conclusion
gives effect to the importance that the Legislature has placed on assessing officials’
compliance with Chapter 16’s statutory deadlines. See I.C. §§ 6-1.1-16-1(b), -2
(providing that when assessing officials fail to act within the statutorily prescribed
periods, the assessed value reported on a taxpayer’s personal property return
prevails).8 Accordingly, the Chapter 16 deadlines applied to require the PTABOA to
issue its final determination by October 30, 2005, which it did not.
II. The Doctrines of Waiver and Estoppel
Allen County alternatively requests that the Court remand this matter to the
Indiana Board, claiming that the record evidence does not support its determination that
7
Allen County complains that applying Chapter 16 deadlines to a county property tax
assessment board of appeals’ appeals process will leave assessing officials without recourse
when, like here, a “taxpayer wait[s] until the day before the [Chapter 16] deadline to file its
appeal.” (See Pet’rs’ Reply Supp. V. Pet. Judicial Review Final Determination [Indiana Bd.]
(“Pet’rs’ Reply Br.”) at 9-10.) Nonetheless, Allen County has conceded that assessing officials
can avoid that situation by completing their duties in an “expedited fashion[.]” (See Pet’rs’ Reply
Br. at 9-10.) Thus, to the extent Allen County’s assessing officials desire a longer period to
complete their duties, they may lobby the legislature for a statutory change.
8
Nonetheless, Amicus Curiae contends that Indiana Code 6-1.1-15-1(o) provided Verizon with
only one remedy: file an appeal with the Indiana Board. (See Amicus Br. at 5-6.) Moreover,
Allen County contends that a regulation, which provides that the “time limitations [under Chapter
16] apply to the review function of the county property tax assessment board of appeals, but not
the appeal function under IC 6-1.1-15[,]” demonstrates that the Section 15-1 rather than Chapter
16 deadlines applied. (See Pet’rs’ Br. at 12-13 (citing 50 IND. ADMIN. CODE 4.2-3.1-7 (2015)
(see http://www.in.gov/legislative/iac/)).) These contentions are unpersuasive for three reasons.
First, Indiana Code § 6-1.1-15-1(o) did not exist in 2005 and the Legislature did not
provide any indication that it was to be effective retroactively. See Orange Cnty. Assessor v.
Stout, 996 N.E.2d 871, 874 (Ind. Tax Ct. 2014). Second, the DLGF adopted the regulation upon
which Allen County has relied in 2010; therefore, it too did not apply in 2005. See Indianapolis
Convention & Visitors Ass’n v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 215 (Ind. 1991)
(providing that absent strong and compelling reasons, regulations are to be given prospective
effect only). Finally, even if the regulation had applied, its validity is doubtful because it is
inconsistent with the plain language of Chapter 16, and is therefore, contrary to the legislative
purpose. See LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000).
10
no genuine issues of material fact existed on the issues of waiver and estoppel.9 (See
Pet’rs’ Br. at 24-26.) Allen County explains the doctrines should have applied because
Verizon initiated its administrative appeal on a Friday, just two days before the deadline
for PTABOA action, it subsequently requested a delay in the preliminary conference and
PTABOA hearing, and then it did not object that the PTABOA’s decision was untimely
until three years later. (See Pet’rs’ Reply Br. Supp. V. Pet. Judicial Review Final
Determination [Indiana Bd.] at 1-2.) Allen County argues that the Indiana Board’s
weighing of those facts was improper because they created a genuine issue of material
fact as to whether Verizon waived, or should be estopped from, invoking the Chapter 16
deadlines. (See Oral Arg. Tr. at 35-40.)
“Waiver is the intentional relinquishment of a known right; an election by one to
forego some advantage he might have insisted upon.” Lafayette Car Wash, Inc. v.
Boes, 282 N.E.2d 837, 839 (Ind. 1972) (citations omitted). While the doctrines of waiver
and estoppel are similar, the two are not identical. See id. at 839-40. Indeed, “‘[a]
person who is in a position to assert a right or insist upon an advantage may by his own
words or conduct, and without reference to any act or conduct of the other party
affected thereby, waive such right[.]’” Id. at 839 (citation omitted). An estoppel, unlike a
waiver, does not arise from the words or conduct of a single party. Id. at 840. “‘To
create an estoppel, the words or conduct of the party estopped must be calculated to
mislead the other party, and such other party must be misled thereby and induced to act
in such a way as to place him at a disadvantage.’” Id. at 840 (citation omitted).
9
In making this claim, Allen County explains that “[w]hile there is no Indiana case law
discussing whether or not the October 30 date in I.C. § 6-1.1-16-1(a)(2) is waiveable, there are
other statutory hearing deadlines[, such as the “speedy trial rule”], that Indiana’s courts have
found can be waived.” (See Pet’rs’ Br. at 24-25.) The Court, however, need not determine
whether the deadlines under Chapter 16 are subject to waiver to resolve this issue.
11
In its final determination, the Indiana Board explained that the doctrines of waiver
and estoppel were inapplicable because the undisputed material facts, when viewed in
the light most favorable to Allen County, showed that: 1) “Verizon simply filed its notice
of review within the statutory deadline and [then] attempted to follow [Section 15-1’s]
procedures[;]” 2) Verizon was under no obligation to notify Allen County of its statutory
deadlines; 3) the Township Assessor failed to file an appeal under Indiana Code § 6-
1.1-16-2; 4) “Verizon did not represent either explicitly or implicitly that it would forego
its rights under [Chapter 16;]”; and 5) “Allen County offered nothing to support a
reasonable inference that it detrimentally relied on Verizon’s actions.” (See Cert.
Admin. R. at 78-81.) The Indiana Board, therefore, did not weigh the facts that Allen
County points to on appeal because they were not in dispute before the Indiana Board.
Upon reviewing the administrative record, the Court finds that the Indiana Board’s final
determination is supported by facts in the record, and therefore, declines the apparent
request to reweigh the evidence regarding the inapplicability of the doctrines of waiver
and estoppel. See Cedar Lake Conference Ass’n v. Lake Cnty. Prop. Tax Assessment
Bd. of Appeals, 887 N.E.2d 205, 207 (Ind. Tax Ct. 2008) (providing that the Court defers
to the Indiana Board’s factual findings that are supported by substantial evidence and
reviews any questions of law that arise from those factual findings de novo), review
denied. See also Ind. Trial Rule 56(C) (providing that summary judgment is proper
when the designated evidence demonstrates that no genuine issues of material fact
exist and the moving party is entitled to judgment as a matter of law). Accordingly, the
Court finds that the Indiana Board did not err in granting summary judgment to Verizon.
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CONCLUSION
For the foregoing reasons, the final determination of the Indiana Board is
AFFIRMED.
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