ATTORNEY FOR PETITIONER: ATTORNEY S FOR RESPONDENT :

PAUL M. JONES, JR. CURTI S T. HILL, JR. PAUL JONES LAW , LLC ATTORNEY GENERAL OF INDI ANA Greenwood , IN KELLY S. EARLS ZACHAR Y D. PRICE WINSTON LIN ALEKSANDRINA P. PRATT DEPUTY ATTORNEYS GENERAL Indian apolis, IN

______________________________________________ _______________________ 

# IN THE INDIANA TAX COURT

_____________________________________________________________________ CVS CORPORATION , ) ) Petitioner , ) ) v. ) Cause No. 18 T

- TA

- 000 18 ) CATHY SEARCY, in her official capacit y as ) ELKHART COUNTY ASSESSOR, ) ) Respondent. )

_____________________________________________________________________ _

ON APPEAL FROM A FINAL DETERMINATION OF THE INDIANA BOARD OF TAX REVI EW

FOR PUBLICATION December 9 , 2019 WENTWORTH, J. On May 2 5, 2018 , the Indiana Board of Tax Review issued a final determination valuing a CVS store in Elkhart, Indiana for purposes of the 2 0 12 through 201 5
assessments

. CVS has ch a llenge d that final de termination , but the Court affirms

. FACTS AND PROCEDURAL HISTORY The property at issue in this case is the CVS store located at 104 West Hively2

Avenue in Elkhart , Indiana. ( See Cert. Admin. R. at 1, 63 .) The store , constr u c ted in 2004, i s approximately 1 0,880 square feet and sits on 1. 26 acre s of land. (Cert. Admin.
R. at 75 .)
T he Elkhart Cou nty Property Tax Assessment Board of Appeals ( “ PTABOA ” )
valued the subject property f or the 20 12 through 201 5 assessments a s fo ll ows: $ 1,030, 60 0 ; $ 1,090,700 ; $ 1,118,200 ; and $ 1 ,106,200

. ( See Cert. A d min. R. at 1

- 2, 10

- 11, 28

- 29 .) Believing those values to be too high, CVS timely filed appeals with the Indiana Board

. T he Indiana Board conducted one administrative hearing on all o f CVS ’ s ap pe a ls i n M ay of 2017

. During th e hearing, certified appraisers for both CVS and the Assessor presented Appraisal Report s in conformance with the Uniform Standards of Professional Appraisal Practice ( “ USPAP ” ) that valu ed the subje ct pro perty for ea ch of the as sessment years

. ( See Cert. Admin. R. at 63

- 206 , 255

- 531 .) CVS ’ s appraiser , Sara Coers, employed all three approaches to valu e the pr operty ( i.e., the sales comparison, income, and cost approaches ) , reconciling her results in t o a final va lu e of $800,000 f or 2012 ; $840,000
for 2 013 ; $850,000 for 2014; and $890,000 for 2015. ( See Cert. A d min. R. at 64 , 198

- 99 , 1132

- 33 .) In arriving at these final valu es , Coers gave the most wei ght to her sales comparison and income approach es. ( See Ce rt

. A d m in. R. at 7 5

- 7 7, 199, 1132

- 33.)
The Assessor ’ s appraiser , J. David Hall , also employed all three approaches , reconciling h is results in to a final value of $ 1,790,000 for 2012 ; $ 1,800, 000 for 2 013 ; $ 1,810,000 for 2014; and $ 1,820, 000 for 20 15. ( See Ce rt

. A d min. R. a t 257, 440 , 143 8

- 3 9 .) In arriving at his final value s , Hall gave equal wei ght t o each of the three
app roaches. ( See Ce rt. Admin. R. at 440, 1439 .)3

On Ma y 25, 2018 , the Indiana Board issued its f inal determination in the matter

. I n it s final de te rmination , the Indiana Board found that the sales comparison and income approaches presented i n both A ppraisal Reports contained so many flaws that they

wer e unper suasive, if not comple tely unreliable. ( See , e.g. , Cert. Admin. R. at 1012 ¶
9 6.) The Ind ia na B oard then examined the cost app roaches provided in e ach Appraisal Report , and after finding both probative, it ultimately found Coers ’ s approach more persuasive than Hall ’ s

. ( See Cert. Admin. R. at 988 ¶¶ 18

- 19, 995

- 96 ¶¶ 39

- 42 , 1001 ¶ 56, 1 002

- 03 ¶ 6 2, 100 7

- 08 ¶¶ 75

- 79, 1010 ¶¶ 86

- 87 , 1012 ¶ 97 .) Nonetheless, t he Indiana Board found the portion of her cost approach that accoun ted for the presence of
external obsolesc ence “ en tirely unsupported. ” ( C ompare Cert. Admin. R. at 131

- 40 , 766

- 6 7, 773 (indi ca ting why Coers believed the subject property suff ered from external obs olescen ce and how she quantifi ed it ) with Cert. Admin. R. at 996 ¶ 42 n.6, 10 07 ¶ 78, 10 12 ¶ 98 (indicating why the Indiana Board di d not find h er rationale p ersu asive) .) Co nsequentl y, the Indian a Board modified Coers ’ s cost approach by removing the negative adjustment she made to ac c o unt for the presence of external ob solescence and assign ed the following values to the subject propert y: $ 1, 222,8 05 for 2012 ; $ 1, 226, 743 for 2 013 ; $ 1,2 46 ,096 for 2014 ; and $ 1, 211,040 for 2015

. ( Cert. Admin. R.
at 1 012 ¶ 98 n

. 10. ) CVS initiated an o riginal tax appeal on July 6, 2018 . The Court heard the parties’ oral arguments on May 23 , 201 9 . Addition al facts wil l be supplied as nec essary. STANDARD O F R EVIEW The party seeking to overturn an Indiana Board final determination bears the
burd en of demonstrating its invalidity. Osolo Twp. Assessor v. Elkhart Maple Lane4

Assocs. , 789 N.E.2 d 109, 111 (Ind. Tax Ct. 2003 ). Accordingly, CVS must d em onstrate
to th e Court that the Indiana Board ’s final determination i n this matter is arbitra ry, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutiona l right, power, p rivilege, or immunity; in ex cess of or sh ort of st at uto ry jurisdiction, authority, or limitations; without observance of procedure re quired by law; o r

u nsupp orted by substantial or reliable evidence. See I ND

. C ODE § 33

- 26

- 6

- 6(e)(1)

- (5) (2 0 1 9 ). LAW & ANALYSIS
I. C V S first argues that the Indi an a Board ’ s f inal determination is contrary to law because it is not based on evidence in the administrative record

. S pecifically , CVS explains that pursuant to In dia na Code § 6

- 1.1

- 15

- 4 (j) , the Indiana Board must base it s final determination exclusively on the evi d en ce c ont a ined within the administrative record. ( See , e.g. , Oral Arg

. Tr. at 3, 20

- 21, 28.) See also I ND

. C ODE § 6

- 1.1

- 15

- 4(j) (2018) (stating that the Indiana Board ’ s final determination “ must include separately stated findi ngs of fact . . . [ that are ] b ase d ex clusi vely upon the evidence on th e reco rd in the proceeding and on matters officially not iced in the proceeding ” ). CVS claims that
b ecause neither Coers nor Hall gave primar y weight t o t he ir cost approach es when advocat ing their v alues , t he India na Board could not do so whe n i t assigned a valu e to the property in its final determination

. ( See , e.g. , Oral Arg

. Tr. at 5

- 7 ( stating that

“ evidence from both sides says that the cost approach should not be give n t he s ol e weight or the most weight, and [y et] the [Indiana] Board, on its own, de c ide[d] to do [just ] that ” ) , 11

- 12 ( contending that because the Indiana Board did not mirror the w eight5

given by either of the appr aisers, it acted outside of the eviden ce ) .) ( Bu t s ee Pet ’ r Br. at 15 , 17 ( claiming th at this action by the Indiana Board was also unsupported by the evi dence ).) CVS is correct that the Indiana Board is req uired to adopt a value based exclusively on evidence in the administrative recor d , but in doing so, it is n ot bound to adopt the same w eigh t afforded to the evidence the appraisers did in their Appr aisal Reports. Indeed, to find otherwise would not only make it impossible for the Indiana
Board to c arry out i ts duties a s the trier of fact , b ut also would be co ntrary to its familiar,
ubi qu itous pr actice prescribed by statute. See I

. C

. § 6

- 1.1

- 15

- 4 (p) ( authorizing the Indiana Board “ as trie r of fact, to review the probati ve value of an a pprai sal rep ort ” ). See also Madison Cty. Asse ssor v. Sedd Realt y Co. , 125 N.E.3d 676, 680 ( Ind. Tax Ct

. 2019) ( providing that “ t he Indiana Board is required t o ‘ determine the relevance and weight to be assigned to evidence ’ before it ” ( quoting 52 I ND

. A DMI N

. C O D E 2

- 7

- 2 (c) (2017)) ); Marion Cty. Assessor v. Washingt on Squ are Mall, LLC , 46 N.E.3d 1, 11

- 12 (In d. T ax C t . 2015) ( indicating that when there is an error or a flaw in a n appraisal, the Indiana Board need not find that the entire appraisal is invalid ; rath er , the Indi ana Board

can still rely on the parts of the a pprais al it determines are probative)

. T he Indiana Board di d not act contrary to law when it adopted its valuation of the

su bject property based sole l y on the cost app roach. Accordingly, the Court wi ll not

rev erse the Indiana Board ’s final determinatio n on t his basis.
I I. Next, C V S argues that the Indian a Board ’ s final determination is not supported by substantial or reliable e vidence because there is no evidence in the administrative6

re cord that C oers ’ s cost approach

– with out her ded uctio n for external obsolescence

– p roperly reflects the subject pro perty ’ s market value

- in

- use. Specifically, CVS maintains tha t once the Indiana Board determined that Co ers ’ s cost appro ach was more p ersuasive , it simply could not ignore the substantial unreb ut ted evidence that was part and parcel of her overall cal culation, i.e., adjusting for exte rnal obsolescenc e

. ( See , e.g. , Oral Arg

. Tr. at 12

- 15 ; Pe t ’ r Br. at 15

- 16 .) Under the su bstantial evidence standard, this Court reviews the admin istrative record t o determine whether, when v i ewed as a whole, it provides a reasonably sound basis of evidentiary support for the Indiana Board ’ s decision. Switzerland Cty. Assessor
v. Belterra Res ort Indiana, LLC , 10 1 N.E.3d 895, 904 (Ind. Tax Ct. 2018) , review denied

. See also Starke Cty. Assess o r v. Porter

- Starke Servs., Inc. , 88 N.E.3d 814, 820 (Ind. Tax Ct. 2017) (defining substantial evidence as “more than a scintilla [ ; ] ” it is such relevant ev idence as a reasonabl e mind might accept as adequate to s upport a concl us ion). Because the substantia l evidence standard is a highly deferential one, the Court will uphold the Indiana Board ’ s final determination unless CVS can show that there is not enoug h relevant ev idence in the administrative r ecord to suppo rt the Indiana
B oard ’ s finding

. See Belterra Resort , 101 N.E.3d at 904. During the Indiana Board hearing, Coers testified in vague generalities that the subject property suffered from e xternal obs olescence “ because there is sta gnant population growth, l ower median ho us ehold incomes and oversupply r etail resulting in high avai labilities, weak absorption and a limited amount of new construction. This is overall a softer area of Elkhart with a sof ter ma rket that has less demand for ret ail. ” (Cert. Admin. R. at 1093.) ( S ee also Cert. Admin. R. at 94, 110 3 , 1140

- 41 ( alluding to7

the negative impact of unemployment within the area ’ s RV manufacturing i ndustr y on median household incomes , popu lation growt h, and overall demand for ret ai l space )

. ) In contrast, H all s upport ed hi s opinion t hat the subject property did not suf fer from
external obsoles cence with evidence that the local area actually gr e w in p opulation, employment , and gross domestic produc t dur ing the years at issue

. ( See Cert. Adm in. R. at 2 77

- 86 , 3 61, 368, 375, 3 82 , 1778

- 8 2 .) Furthermore, Hall impeached Coers ’ s credibility on this point by highlighting her contradi ctions: stating the market was in declin e for purposes of justif ying the presen c e of external obsolescence on the one hand wh ile adjust ing the s ales i n her sales compa rison a pp roach upward to account for

“ market conditi ons ” on the other. ( S ee Cert. Admin. R. at 178 4

- 85 .) Given th ese opposin g evidentiary presentations, the Indiana Boar d was required
to w eigh them and determine which one it found more p ers u asive. See I .C. § 6

- 1.1

- 15

- 4 (p) ; Sedd Realty Co. , 125 N.E.3d at 680 . The India na Board did just that and found in favor of Hall. ( See Cert. Admin. R. at 996 ¶ 42 n.6, 10 07 ¶ 78, 10 1 2 ¶ 98 .) A

re asonable mind could do the same. See Porter

- Starke S ervs. , 88 N.E.3d at 820

. In ac tuality , CVS ’ s claim merely asks the Court to reweigh the evidence that was
p resented to the Indiana Board in its favor

. The Court cannot reweigh the evidence absent a showing that the Indiana Board has abused its discreti on. See Stinson v.
Trimas Fasten ers, Inc. , 923 N.E.2d 496, 498

- 99 (Ind. Tax Ct . 2010)

. See also Monr oe Cty. Assessor v. SCP 2002 E19 LLC 6697 , 77 N.E.3d 270 , 273 ( Ind. Tax Ct. 201 7 ) (explaining that the Indiana Board abuses its discretion when it either misinterprets the law or when its final determination is clearly against th e logic and effect of the facts and circumstances before it) , review denied

.8

Here , CVS merely argue s f or the superio rity of Coers ’s evidence, stating that she

“ provided a well

- su pp orted analysis for her position in [her ] Appraisal [Report ] and in her testimony. While Hall differed i n opinion [,] . . . Coers fully and sufficiently exp lained her [s.] ” ( See Pet ’ r Br. at 13, 1 5

- 16 ( asserting that her opinion was valid because once she made the adjustment to account for the external obsolescence , her cost approach valuation was within the ran ge offered by her income and sales comparison approach es to value ).) Accordingly, CV S ’s argument does not iden tify evidence that the Indiana
Board ’s final determination is agai nst the logic and effect of the facts and circumstances of the case, and therefore cannot rise to the level of an abuse of d iscretion. Moreover, b ased on its review o f the evidence in the administrative reco rd, the Court find s that substantial and reliable evidenc e supports the Indiana Board ’ s determination that the subject property did not suffer from exte rnal obsolescence

. 1 T he Court will therefore not reverse the I ndiana Board ’ s final determination on this basis

. I II.
Fin ally, CVS argue s that the Indiana Board ’ s final determination cons titute s an abuse of discretion be ca u se the Indiana Bo ard chose to act as a board of ap p raisers and calculate its own values for the s ubject property rather than rely on the expert
t estim ony and appraisals that were presented to it

. ( See Pet ’ r Br. at 21.) S t ate d differently, “ [t] he Indiana Boa rd ’ s role is [solely] to review the evid ence i n the record an d

1 C VS has also argued t hat by remov ing Coers ’ s external obsolescence adjustment fro m the cost appr oach , the Indiana Board acted contrary to law b ecause it fail ed to value the subject property in accordance with Indiana ’ s market value

- in

- us e standard. ( See Pet ’ r Br. at 10

- 14 ( explaining that Indiana ’ s property tax system is a ma rket

- based system a nd the only m eans of ty ing a value ca lculated under the cost approach to the market is to make an adjustment for external obsolescenc e )

. ) Given t hat t he evidence in the administrative re cord supports the Ind iana Board ’ s conclusion tha t the subject property did not suffer from obsolescence in the first place , the Court need not address this argument.9

de termine which expert is more persuasive and comp el ling, not to step into the sh oes of an appraiser an d develop, or in this case, calcul ate, it s own values. ” (Pet ’ r Br. at 18.) C VS ’ s arg ument is nothing more than a re packaging of it s first t wo claims

. Given
th at t he Cou rt has already found that t he Indiana Board ’ s actions in this case were within its statutory authority and were nei ther c ontrary to law n or unsupported by substan tial evidence, CVS has not demonstrated an a buse of discretion. See SCP , 77
N.E. 3 d at 27 3

. C ONCLUSION CVS has not demonstra ted to the Court tha t t he Indi ana Board’s final
determination is cont rary to la w , unsupported by substantial evidenc e, o r co ns titutes an abuse of disc retion. Accordingly, the Indiana Board’s fi nal d etermi natio n i n this matt er is AFFIRMED.