By Erica Irish
TheStatehouseFile.com

INDIANAPOLIS—For years, Elise Nieshalla has served as an at-large council member for Boone County, where she oversees one of the fastest-growing regions in Indiana.

But 2018 ended with a series of challenges, shifting the perspectives of her and fellow county leaders. And it all started with a popular grocery storefront at the heart of Whitestown.

When Boone County assessors priced the real value of the Meijer grocery store at $14 million, the company came back with a new argument, noting that its properties elsewhere in the state — particularly those in economically distressed communities — were valued at a lower price.

Meijer, then, set an ultimatum with Boone County: After the Midwest retail chain received an $11.5 million assessment, the company entered into a lawsuit with the county. A third party appraised the property at $14 million. Meijer then demanded their Whitestown property’s worth by lowered to almost 50 percent less than the appraisal.

Under the original assessment, Boone County taxes the property at $61 per square foot each year. If Meijer succeeds in its appeal, that annual rate would drop to $49 per square foot.

After several hearings in late December 2018, both parties were told it could take up to a year for a final opinion from the Indiana Tax Court, Nieshalla said.

Across the state, county assessors and their communities are facing similar challenges from some of the country’s most popular grocery stores, retail outlets, and pharmacies.

In particular, Meijer’s case with Boone County exemplifies what a growing number of assessors are referring to as a “dark box store tax loophole,” a process by which retailers will insist properties valued at higher rates should be assessed at rates equal to their lowest-valued, or “dark,” establishments.

This argument assumes properties like the Whitestown Meijer should be assessed without considering factors like daily business traffic.

“Our focus is to keep prices as low as possible for our customers,” Meijer officials said in a statement about the Whitestown appeal. “One of the ways to do that is by making sure we pay a fair and equitable amount of property tax.”

The company declined to discuss the appeal further.

For those like Nieshalla, this argument is problematic. She and those against the theory argue it unfairly permits large corporations to pay less in property taxes on their most active establishment, which ultimately yields more profit for the company while leaving other groups — like homeowners and competing businesses — to pay additional property taxes.

Many of the property taxes paid by big-box retailers fund emergency responders, like firefighters and local police, who often respond to retail locations to handle theft reports. In 2017, Nieshalla said, the Whitestown Police Department responded to 158 service calls at the Whitestown Meijer.

“They are not a dark store as far as their use of public dollars,” Nieshalla said.

This trend is nothing new if one considers the long if a recent, history of appeals in Indiana’s Tax Court and similar chambers around the country. The track record includes appeals dating back to 2012 within Indiana with states like Wisconsin and Texas reporting numerous appeals in the last decade.

Appeals proliferated in the state after the Indiana Board of Tax of Review ruled in 2014 that a separate Meijer, located off East 96th Street in Marion County, should have received an assessment at $30 per square foot instead of the $83-per-square-foot rate assigned by the county.

In Indiana alone, there are more than 300 pending appeals that involve big box store retailers. The cases span more than 15 counties, touching all corners of the state.

Nieshalla said Boone County declined Meijer’s offer to settle, fearing the number of appeals with other companies would increase.

“We knew other big box stores would be waiting at our doorstep,” she said about the decision.

Now, leaders in the Association of Indiana Counties say they hope to end the ordeal once and for all this legislative session.

County leaders are seeking a legislative fix that would set a state-level precedent for what constitutes a viable property value comparison, potentially putting a stop to costly county appeals and providing taxpayers with “taxing fairness,” according to a document provided by AIC.

“We maintain that the value of a property to the current user and for the current user is a fair and equitable basis for taxation, rather than skipping to the value of the property to a future buyer purchasing it as a vacant building,” the document reads.

Some lawmakers have already answered the AIC’s call.

In the Senate, Sens. Brian Buchanan, R-Lebanon, and Phillip Boots, R-Crawfordsville, filed a bill to address various property tax matters, including several provisions to solve the concerns voiced by the AIC.

Their bill — Senate Bill 623— would introduce protections for county leaders, empowering them to adopt ordinances that could reimburse assessors’ legal fees in appeals that are “uncommon and infrequent in the normal course of defending appeals.”

Additionally, SB 623 would prevent companies who appeal property assessments from using second-generation properties in sales comparisons. In other words, if the company owns an inactive property — like a vacant grocery store that it rents out to seasonal tenants or holiday retailers — it could not compare that property’s assessed value with active establishments, or first-generation properties.

Buchanan said the bill would only impact new big box store appeals, not the hundreds that are already filed or pending before the state tax board.

“When a commercial retailer chooses to appeal, and that’s their right, the counties are often forced to settle,” Buchanan said. “We’ll protect their right to appeal, but we’re also working hard to find a solution everyone can live with.”

Editor’s note: This story has been updated to reflect a correction in the amount of Meijer’s assessment. It is $11.5 million, not $14 million. The description of Elise Nieshalla’s position has been corrected.

FOOTNOTE: Erica Irish is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.