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ATTORNEYS FOR PETITIONER: BRENT A. AUBERRY STEPHEN H. PAUL BAKER & DANIELS LLP Indianapolis, IN

RICHARD A. NUSSBAUM, II SOPKO, NUSSBAUM & INABNIT South Bend, IN _____________________________________________________________________

ATTORNEYS FOR RESPONDENT: STEVE CARTER ATTORNEY GENERAL OF INDIANA ANDREW W. SWAIN CHIEF COUNSEL, TAX SECTION JOHN D. SNETHEN DEPUTY ATTORNEY GENERAL Indianapolis, IN

IN THE INDIANA TAX COURT
_____________________________________________________________________ ) ) Petitioner, ) ) v. ) Cause No. 49T10-0507-TA-59 ) ST. JOSEPH COUNTY PROPERTY TAX ) ASSESSMENT BOARD OF APPEALS, ) ) Respondent. ) _____________________________________________________________________ ON APPEAL FROM A FINAL DETERMINATION OF THE INDIANA BOARD OF TAX REVIEW FOR PUBLICATION December 19, 2007 FISHER, J. The Petitioner, Brothers of Holy Cross, Inc. (BHC), appeals the Indiana Board of Tax Review's (Indiana Board) final determination denying its application for an exemption on its real property for the 2002 tax year (year at issue). The issue for this Court to decide is whether the Indiana Board erred in determining that BHC's real property did not qualify for a property tax exemption. BROTHERS OF HOLY CROSS, INC.,

FACTS AND PROCEDURAL HISTORY BHC, an Indiana not-for-profit corporation affiliated with the Roman Catholic Church, owns a 38.62 acre parcel of land in Notre Dame, Indiana. The parcel contains BHC's retirement community, the Holy Cross Village (the Village), and BHC's administrative headquarters. 1 The Village is comprised of single-family residences,

duplexes, and a four-unit residence. The Village offers its residents the amenities found in traditional apartment living as well as unique and special services. 2 A resident may purchase a revocable right of occupancy for life within the Village by paying a refundable "entrance fee" which, in 2002, ranged from $129,900 to $239,900. 3 Residents are also required to pay a monthly maintenance fee. 4 On May 15, 2002, BHC filed an application with the St. Joseph County Property Tax Assessment Board of Appeals (PTABOA) seeking a charitable purposes exemption on the real and personal property within its parcel for the 2002 tax year. While the PTABOA granted a 100% exemption on BHC's personal property, it only allowed a 17% exemption on BHC's real property. More specifically, the PTABOA determined that only BHC also owns a nursing home (the Dujarie House), an assisted living facility (Schubert Villa), an apartment building (the Riverside Place), and a chapel (the St. Joseph Chapel). These facilities are not, however, located within the Village nor are they a part of this appeal. For instance, each residence is equipped with safety features (such as bathroom grab bars and skid resistant floors) and is wheelchair accessible. The entrance fee, which may be refunded at an amortized annual rate of 4%, is based upon a residence's square footage and its construction costs. (See Cert. Admin. R. at 743.) The maintenance fee, based upon a residence's square footage, covers the utilities, interior and exterior maintenance, and landscaping (including snow removal). In 2005, the monthly maintenance fee ranged between $415 and $660. (See Cert. Admin. R. at 740.) 2
4 3 2 1

BHC's administrative center and its underlying land were exempt from taxation. BHC subsequently appealed to the Indiana Board. On June 7, 2005, after conducting a hearing, the Indiana Board issued a final determination affirming the PTABOA. On July 20, 2005, BHC filed this original tax appeal. The Court heard the parties' oral arguments on November 30, 2006. Additional facts will be supplied as necessary. STANDARD OF REVIEW This Court gives great deference to final determinations of the Indiana Board when it acts within the scope of its authority. Wittenberg Lutheran Vill. Endowment Corp. v. Lake County Prop. Tax Assessment Bd. of Appeals, 782 N.E.2d 483, 486 (Ind. Tax Ct. 2003), review denied. Consequently, the Court will reverse a final determination of the Indiana Board only if it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations; (4) without observance of procedure required by law; or (5) unsupported by substantial or reliable evidence. See IND. CODE ANN.

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