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ATTORNEYS FOR PETITIONER: BRIAN J. CLARK LARRY J. STROBLE BARNES & THORNBURG Elkhart, IN Indianapolis, IN

ATTORNEYS FOR RESPONDENTS: STEVE CARTER ATTORNEY GENERAL OF INDIANA ANDREW W. SWAIN SPECIAL COUNSEL, TAX SECTION ALLEN MORFORD DEPUTY ATTORNEY GENERAL Indianapolis, IN

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IN THE INDIANA TAX COURT
WILL'S FAR-GO COACH SALES, ) ) Petitioner, ) ) v. ) Cause No. 71T10-0412-TA-59 ) GORDON NUSBAUM as MIDDLEBURY ) TOWNSHIP ASSESSOR, GENE INBODY ) as ELKHART COUNTY ASSESSOR, and ) ELKHART COUNTY PROPERTY TAX ) BOARD OF APPEALS, ) ) Respondents. ) ) ______________________________________________________________________ ON APPEAL FROM A FINAL DETERMINATION OF THE INDIANA BOARD OF TAX REVIEW FOR PUBLICATION May 25, 2006 FISHER, J. Will's Far-Go Coach Sales (Will's Far-Go) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) upholding the assessment of Will's FarGo's business personal property for the 1995-1996 tax years (years at issue). The Court AFFIRMS the Indiana Board's final determination.

FACTS AND PROCEDURAL HISTORY Will's Far-Go sells recreational vehicles in Veedersburg, Fountain County, Indiana. Will's Far-Go purchases many of these vehicles from Jayco, Inc. (Jayco), a manufacturer located in Middlebury, Elkhart County, Indiana. To avoid inclement

weather conditions, Will's Far-Go would occasionally delay transporting the vehicles from Jayco's Middlebury property to Veedersburg. Consequently, as of the March 1st assessment dates for the years at issue, some of Will's Far-Go's vehicles were located on Jayco's lot (trailers at issue). When Jayco filed its personal property tax returns with the Middlebury Township Assessor (Assessor) for the years at issue, it indicated that the trailers at issue were the property of Will's Far-Go. The Assessor subsequently provided Will's Far-Go with

Business Tangible Personal Property Returns (Forms 103 and 104) and a Return of Owned Personal Property Not in Possession of Owner (Form 103-O) so that Will's FarGo could report the trailers for assessment in Middlebury Township. In response, Mary Freeman, an employee of Will's Far-Go, informed the Assessor that Will's Far-Go had reported the trailers on returns it filed with the Fountain County assessing officials. Ms. Freeman also told the Assessor that the Fountain County Assessor had informed her that Will's Far-Go was not required to file returns in Elkhart County. While the Assessor expressed disagreement with the Fountain County Assessor's advice, Will's Far-Go did not return the forms or any other documentation to the Assessor. On June 30, 1995 and June 19, 1996, the Assessor sent Will's Far-Go Notices of Assessment (Forms 113) stating that the trailers had been assessed in Elkhart County.

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Will's Far-Go never paid the assessed taxes and, as a result, the delinquent taxes were certified by the Elkhart Circuit Court on October 1, 1997 and October 1, 1998. 1 On October 16, 2000, Will's Far-Go filed two Petitions for Correction of Error (Forms 133) for the years at issue with the Elkhart County Property Tax Assessment Board of Appeals (PTABOA). Because Will's Far-Go did not pay the assessed taxes in Elkhart County, it did not file claims for refund in connection with its Forms 133. On its Forms 133, Will's Far-Go argued that the assessments were illegal because the Assessor did not have jurisdiction to assess the trailers. On November 17, 2000, the PTABOA denied the request for relief. Will's Far-Go appealed the decision to the Indiana Board. 2 On November 12, 2004, after conducting a hearing on the matter, the Indiana Board issued a final determination, denying the appeal. The Indiana Board found that: (1) it did not have authority to set aside taxes certified by a circuit court; 3 (2) Will's Far-Go's Forms 133 were not timely filed; and (3) the underlying legality of the assessments was moot.

In 2001, Will's Far-Go requested that the Elkhart Circuit Court set aside the certifications of the delinquent taxes. The Elkhart Circuit Court, however, has stayed the proceedings in that case. Will's Far-Go initially appealed to the State Board of Tax Commissioners (State Board) on December 5, 2000. On December 31, 2001, however, while the case was still pending with the State Board, the legislature abolished the State Board and created the Indiana Board of Tax Review (Indiana Board) as its "successor". IND. CODE ANN.

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