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ATTORNEY FOR PETITIONERS: THOMAS C. O'DONNELL ATTORNEY AT LAW Highland, IN

ATTORNEYS FOR RESPONDENT: STEVE CARTER ATTORNEY GENERAL OF INDIANA JENNIFER E. GAUGER DAWN D. CUMMINGS DEPUTY ATTORNEYS GENERAL Indianapolis, IN

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IN THE INDIANA TAX COURT
_____________________________________________________________________ THOMAS C. O'DONNELL and KATHY L. O'DONNELL, ) ) ) Petitioners, ) ) v. ) Cause No. 49T10-0510-TA-79 ) DEPARTMENT OF LOCAL ) GOVERNMENT FINANCE, ) ) Respondent. ) _____________________________________________________________________ ON APPEAL FROM A FINAL DETERMINATION OF THE INDIANA BOARD OF TAX REVIEW FOR PUBLICATION September 21, 2006 FISHER, J. Thomas C. O'Donnell and Kathy L. O'Donnell (the O'Donnells) appeal the final determination of the Indiana Board of Tax Review (Indiana Board) upholding the Department of Local Government Finance's (DLGF) assessment of their residential real property for the 2002 tax year. While the O'Donnells raise several issues on appeal, the Court consolidates and restates them as: whether the O'Donnells made a prima facie case that their assessment is improper.

FACTS AND PROCEDURAL HISTORY The O'Donnells own a house in the Briar Ridge Country Club Subdivision (Briar Ridge) in Lake County, Indiana. Briar Ridge straddles the corporate line between the towns of Dyer and Schererville; thus, some of the lots in Briar Ridge are located in Dyer and others are located in Schererville. The O'Donnells reside on the Dyer side of Briar Ridge. For the 2002 assessment, the DLGF valued the O'Donnells's property at $519,000 ($141,700 for land and $377,300 for improvements). Believing the

assessment to be too high, the O'Donnells filed a Petition for Review with the Indiana Board (Form 139L) on April 29, 2004. In their Form 139L, the O'Donnells asserted that the DLGF improperly valued both their land and their house. The Indiana Board held a hearing on the O'Donnells's Form 139L on October 7, 2004. On August 19, 2005, the Indiana Board issued its final determination in which it denied the O'Donnells's request for relief. The O'Donnells filed an original tax appeal on October 1, 2005. 1 The Court

heard the parties' oral arguments on June 23, 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. In its Answer, the DLGF claimed that this Court lacked jurisdiction to decide the case because the O'Donnells did not timely file their administrative record. (Resp't Answer at 2.) Because the DLGF never discussed this issue in a subsequent motion to dismiss, its brief, or at oral argument, the Court deems the issue waived. 2
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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; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; or unsupported by substantial or reliable evidence.

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(4) (5)

IND. CODE ANN.

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