In answering that call, the Court has repeatedly interpreted the meaning of “current use” broadly, rejecting the contention that with respect to commercial and industrial properties, properties that have been sold to “secondary users” cannot be considered comparable. See, e.g., Marion Cnty. Assessor v. Washington Square Mall, LLC, 46 N.E.3d 1, 9–10 (Ind. Tax Ct.2015) (explaining that for purposes of market value-in-use, a regional mall and a discount mall are similar uses); Shelby Cnty. Assessor v. CVS Pharmacy, Inc. # 6637–02, 994 N.E.2d 350, 354 (Ind. Tax Ct.2013) (observing that it was proper to measure a CVS store's market value-in-use in relation to participants within the commercial/retail market generally, and not solely against other CVS stores); Grant Cnty. Assessor v. Kerasotes Showplace Theatres, LLC, 955 N.E.2d 876, 881 n. 10 (Ind. Tax Ct.2011) (rejecting the claim that in relying on an appraisal that did not use theatre properties that sold in sale-leaseback transactions as comparable properties, the Indiana Board adopted “a value ‘more representative of a market value for a second generation user, not a value[-in-]use’ ” (citation omitted)); Meijer, 926 N.E.2d at 1137 (explaining that pursuant to the sales comparison approach, the market value-in-use of a retail property should be measured against properties with a comparable use as opposed to properties with identical users). Likewise, the Court has also disavowed the contention that vacant properties cannot be comparable to occupied properties.
The Indiana Board gave no weight to the review because it raised arguments that had already been rejected by previous decisions of this Court. (See Cert. Admin. R. at 102-03 ¶¶ 59-63 (citing Marion Cnty. Assessor v. Washington Square Mall, LLC, 46 N.E.3d 1, 9 (Ind. Tax Ct. 2015) ; Shelby Cnty. Assessor v. CVS Pharmacy, Inc. #6637-02, 994 N.E.2d 350, 354 n.5 (Ind. Tax Ct. 2013) ; Grant Cnty. Assessor v. Kerasotes Showplace Theatres, LLC, 955 N.E.2d 876, 881 n. 10 (Ind. Tax Ct. 2011) ; Meijer Stores Ltd. P'ship v. Smith, 926 N.E.2d 1134 (Ind. Tax Ct. 2010) ; Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 497 (Ind. Tax Ct. 2010) ).) The Court does not address the review's arguments because it stands by its previous decisions.
a property's market value and market-value-in use often coincide and thus, when determining a property's market value-in-use, it is improper to reject out-of-hand an appraisal that estimates that property's market value.(See Cert. Admin. R. at 178–80 ¶¶ 79–82 (citing Shelby Cnty. Assessor v. CVS Pharmacy, Inc. # 6637–02, 994 N.E.2d 350, 354 (Ind.Tax Ct.2013) ; Millennium Real Estate Inv., LLC v. Assessor, Benton Cnty., 979 N.E.2d 192 (Ind.Tax Ct.2012), review denied; Meijer Stores Ltd. P'ship v. Smith, 926 N.E.2d 1134 (Ind.Tax Ct.2010) ; Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496 (Ind.Tax Ct.2010) ).) Thus, continued the Indiana Board, the appraisal review's ultimate conclusion—that the CVS Appraisal Report was not probative—was incorrect.
In light of this standard, the Court has repeatedly rejected the contention that the Assessor makes in this case: that a property's market value-in-use can only be measured in relation to other identical users and not in relation to participants within the commercial/retail market generally. See generally Shelby Cnty. Assessor v. CVS Pharmacy, Inc. # 6637–02, 994 N.E.2d 350, 354 (Ind.Tax Ct.2013) (observing that a CVS store's market value-in-use was properly measured in relation to participants in the commercial/retail market generally, and not solely to other CVS stores); Meijer Stores Ltd. P'ship v. Smith, 926 N.E.2d 1134, 1137 (Ind.Tax Ct.2010) (recognizing that the market value-in-use of a property should be measured against properties with a comparable use as opposed to properties with identical users).Korpacz believed that any knowledgeable purchaser would purchase the property not with the intent to continue operating it as a regional mall, but rather with the intent to find a new, more profitable retail purpose for the property, most likely as a discount mall or center.
‘[A]n assessor's task is to value the real estate, not the business concern which may be using the property.’ " Walgreen Co. v. Oshkosh , supra, at *1, quoting Walgreen Co. v. Madison , supra, at 197, 752 N.W.2d 687. The plaintiff also cites to a similar case from Indiana, Shelby County Assessor v. CVS Pharmacy, Inc. , 994 N.E.2d 350 (Ind. Tax 2013). In that case, the Indiana Tax Court concluded that the Indiana Board of Tax Review correctly rejected an assessor's conclusion that the contractual rent of a stand-alone drugstore should be used in the income approach under Indiana law. Because Connecticut law requires the consideration of both market and contract rent for valuations pursuant to § 12-63b (b), we conclude that Oshkosh and Shelby County Assessor are inapplicable to the present case.
To develop an opinion of value under the income approach, the fee simple interest in the property must be determined based on an estimate of market rents. See, e.g., Shelby Cnty. Assessor v. CVS Pharmacy, Inc. #6637-02, 994 N.E.2d 350, 354 (Ind. Tax Ct. 2013) ; Grant Cnty. Assessor v. Kerasotes Showplace Theatres, LLC, 955 N.E.2d 876, 881 (Ind. Tax Ct. 2011) (explaining that " ‘[a]ny potential value increment in excess of a fee simple estate is attributable to the particular lease contract ... [and] constitute[s] contract [rights] rather than real property rights’ ") (citation omitted). See also THE APPRAISAL OF REAL ESTATE at 447, 466 (explaining that in fee simple valuations, income from rentable space is to be estimated using market rent levels).
Thus, while Kerasotes does not specifically prohibit the use of sale-leaseback transactions when valuing property, it does require either the adjustment of the rent to remove any non-taxable property values that are included or the presentation of evidence to show that the rent reflects the market value of the real property alone. See id.; Shelby Cty. Assessor v. CVS Pharmacy, Inc. #6637-02, 994 N.E.2d 350, 354 (Ind. Tax Ct. 2013) (finding that contract rent based on a sale-leaseback transaction valued more than the real property where the lease was used to generate business capital from investors). See also THE APPRAISAL OF REAL ESTATE at 466 ("[s]ince sale-leasebacks are actually financing vehicles, they should not be used in estimating market rent").
Moreover, a taxpayer's opportunity to present evidence to the Indiana Board with respect to his assessment challenge occurs well after the contested assessment date. See, e.g., Marion Cnty. Assessor v. Gateway Arthur, Inc., 45 N.E.3d 876, 878 (Ind. Tax Ct.2015) (indicating that while the taxpayer challenged its 2006 assessment, the Indiana Board did not conduct a hearing on the matter until 2012); Shelby Cnty. Assessor v. CVS Pharmacy, Inc. # 6637–02, 994 N.E.2d 350, 351 (Ind. Tax Ct.2013) (indicating that while the taxpayer challenged its 2007 and 2008 assessments, the Indiana Board did not conduct a hearing on those matters until 2011); Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496, 497 (Ind. Tax Ct.2010) (indicating that while the taxpayer challenged its 2002 assessment, the Indiana Board did not conduct a hearing on the matter until 2006); O'Donnell v. Dep't of Local Gov't Fin., 854 N.E.2d 90, 92 (Ind. Tax Ct.2006) (indicating that while the taxpayer challenged his 2002 assessment, the Indiana Board did not conduct a hearing on the matter until 2004). Given these “time gaps,” this Court has long recognized that in assessment challenges, taxpayers can present evidence of present-day property values as long as they attempt to relate that evidence to the appropriate valuation and assessment dates.
Moreover, the Court will not reweigh any evidence presented or reassess the credibility of any witnesses who testified at the administrative hearing. Shelby Cnty. Assessor v. CVS Pharmacy, Inc. # 6637–02 , 994 N.E.2d 350, 353 (Ind. Tax Ct.2013).LAW AND ANALYSIS