Baker, Special Judge.

Evansville Courier Company, Inc. (Evansville Courier), seeks judicial review of the decision of the Indiana Board of Tax Review (the Board) denying Evansville Courier's claimed tax deductions for the abnormal obsolescence of a printing press and related equipment. The Court finds that the Board improperly admitted an untimely-disclosed exhibit offered by the Vanderburgh County Assessor (the County) and that the Board did not err by finding that Evansville Courier did not make a prima facie case of abnormal obsolescence. We find that the Board erred by admitting the untimely exhibit. We also find, however, that the Board did not err by denying Evansville Courier's petition, and affirm the Board's judgment.

Facts1

Evansville Courier is a daily newspaper publisher located in Evansville. Its primary paper, the Evansville Courier & Press, is published seven days per week. Over the last decade or so, Evansville Courier has experienced the downturn of the newspaper industry. In 2004, it employed approximately 500 people; currently, it employs approximately 215 people. In 2011, on average, it sold 49,126 newspapers from Monday through Saturday, with an average Sunday circulation of 70,864 newspapers. By 2014, the average circulation decreased to 39,999 newspapers during the week and to 57,111 on Sundays. It has experienced an overall decline of nearly 60% in circulation since the 1990s. Evansville Courier anticipates that it will soon reduce the number of publication days for the Evansville Courier & Press and that at some point in the next ten years, it will stop printing newspapers altogether.

In 1989, Evansville Courier purchased a new 12-position flexographic printer (the Printing Press). At that time, the flexographic method of printing was expected to become the predominant method of printing newspapers, but within a few years, it became apparent that the industry preferred using an offset press rather than a flexographic press. At one time, there were as many as thirty newspaper companies nationwide using flexographic press printers, but now only twelve remain in use. The flexographic method of printing is more expensive than the alternative offset method. Additionally, Evansville Courier can no longer buy parts for the Printing Press from the manufacturer, meaning that it must have parts specially manufactured or purchase used parts from newspaper companies that once operated similar presses.

In July 2011, Evansville Courier filed its 2011 tax return. The 2011 Return included a separate schedule applying an abnormal obsolescence deduction to the Printing Press and related equipment. Evansville Courier filed similar returns for each of the 2013 and 2014 tax years. In sum, Evansville Courier requested the following approximate abnormal obsolescence adjustments: $649,398 for 2011; $3.5 million for 2013; and $5.1 million for 2014. The abnormal obsolescence adjustments were disallowed by Vanderburgh County for each of the three years.

The parties went through the required administrative process for each of the three tax returns.

On January 26, 2016, the Board held a combined evidentiary hearing on each of Evansville Courier's three pending petitions.

At the hearing, Evansville Courier submitted appraisals prepared by Brad Venisnik, an Accredited Senior Appraiser, in support of its claim for an abnormal obsolescence deduction for the Printing Press and related equipment for the years of 2011, 2013, and 2014. The appraisals were prepared in accordance with the Uniform Standards of Professional Appraisal Practice. Venisnik considered the cost, income, and market approaches to value. He relied most heavily on the market approach because that approach "most accurately quantifies all forms of depreciation and obsolescence." Id. at 505. Venisnik researched the market by talking with the original equipment manufacturer, used equipment dealers, and other operators of two presses that are similar to the Printing Press.

Venisnik's research indicated that (a) the original equipment manufacturer would attach a value of $865,000 to the Printing Press for the 2011 tax year; (b) no used equipment dealer had any interest in purchasing the Printing Press or any indications of recent comparable sales; and (c) other newspaper companies have discontinued operations of their flexographic presses and have sold the component parts for their scrap value. Venisnik concluded that it would be impractical to use the Printing Press for anything other than printing newspapers and that it lacks functionality for its best use because of an inherent inability to print color copy on both sides of the page. He therefore determined that it is not possible to cure the causes of the Printing Press's obsolescence.

Based on his research, Venisnik placed a value on the Printing Press and related equipment for 2011 of $1.2 million. He calculated abnormal obsolescence by using a mathematical computation equal to the difference between the reportable value of the Printing Press and its equipment and the appraised value. For 2011, the amount of abnormal obsolescence was approximately $4.3 million. For 2013 and 2014, the appraised value of the Printing Press and related equipment was $820,000 and $632,000, respectively. Thus, the amount of abnormal obsolescence for each of these years was approximately $4.44 million for 2013 and $4.47 million for 2014.

As part of its case-in-chief, Vanderburgh County called Bill Fluty, the County assessor, to testify. During Fluty's testimony, the County offered into evidence an evaluation of Venisnik's market value appraisal of the property in 2014. Evansville Courier objected to this exhibit because it had not been provided to Evansville Courier five days before the hearing as required by the Indiana Administrative Code and because it was hearsay evidence. The County responded that the exhibit was rebuttal testimony and therefore did not have to comply with the five-day timeline. The Board took the issue under advisement and completed the hearing.

On September 19, 2016, the Board issued its final determination, which denied Evansville Courier's petitions. In relevant part, the Board found and held as follows:

Appellant's App. p. 86-108 (some internal citations omitted). Evansville Courier now seeks judicial review of the Board's decision.

Discussion and Decision

I. Standard of Review

The Court gives great deference to decisions made by the Board when it acts within its authority. Hamilton Cty. Assessor v. Duke, 69 N.E.3d 567, 569 (Ind. Tax Ct. 2017). Accordingly, the Court will reverse only if the Board's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, privilege, or immunity; in excess or short of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; or unsupported by substantial or reliable evidence. Ind. Code § 33-26-6-6(e). The party challenging the Board's decision bears the burden of demonstrating its invalidity. Hamilton Cty., 69 N.E.3d at 569.

The Court defers to the Board's factual findings, but only if they are supported by substantial evidence. 6787 Steelworkers Hall, Inc. v. Scott, 933 N.E.2d 591, 595 (Ind. Tax Ct. 2010). Evidence is substantial "`if it is more than a scintilla and less than a preponderance or if it would be accepted as adequate to support a conclusion by a reasonable mind.'" Id. at 595 n.7 (quoting French Lick Twp. Tr. Assessor v. Kimball Int'l, Inc., 865 N.E.2d 732, 739-40 n.14 (Ind. Tax Ct. 2007)). The Court applies a de novo standard of review to the Board's legal conclusions. 6787 Steelworkers, 933 N.E.2d at 595. In conducting the review, the Court will neither reweigh evidence nor assess witness credibility. Id.

II. Untimely Submission of Exhibit

Evansville Courier first argues that the Board erred by admitting into evidence a document submitted by the County that was not provided to Evansville Courier according to the requisite timeline.

The Indiana Administrative Code mandates that a party to an administrative appeal before the Board "must provide" copies of documentary evidence to all other parties at least five business days before the hearing. 52 Ind. Admin. Code 2-7-1(b)(1) (emphasis added). Failure to comply with this rule "may serve as grounds to exclude the evidence[.]" 52 I.A.C. 2-7-1(b)(f). This Court has explained as a general matter that the purpose of the discovery rules is "to allow a free exchange of fact information and to permit each party to prepare its case for trial without concerns about trial by surprise or ambush." Brandenburg Indus. Serv. Co. v. Ind. Dep't of State Revenue, 26 N.E.3d 147, 152 (Ind. Tax Ct. 2015). And indeed, our Supreme Court has unequivocally and "consistently rejected a `gaming view' of the litigation process." Outback Steakhouse of Fl., Inc. v. Markley, 856 N.E.2d 65, 75 (Ind. 2006).

It is undisputed that the County failed to provide a copy of its exhibit criticizing Venisnik's appraisal at least five business days before the hearing. The County argued, and the Board ultimately held, that because the evidence was rebuttal evidence, its disclosure was not required.

The Court disagrees. It is well established that "the nondisclosure of a rebuttal witness is excused only when that witness was unknown and unanticipated; known and anticipated witnesses, even if presented in rebuttal, must be identified pursuant to a court order, such as a pre-trial order, or to a proper discovery request." McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 179 (Ind. 1993) (emphasis added). Here, the County was well aware of the nature of Venisnik's testimony and arrived at the hearing armed with evidence to rebut that testimony. The exhibit in question was dated January 20, 2016, and the hearing occurred on January 26, 2016, meaning that this exhibit was known, anticipated, and actually available to be disclosed to Evansville Courier within the requisite timeline. Appellant's App. p. 774-90. The County's failure to do so constitutes precisely the type of "gotcha" litigation that Indiana courts abhor. Under these circumstances, the admission of this exhibit was erroneous.

III. Abnormal Obsolescence

A. General Principles

Generally, all property located in the State of Indiana is required to be taxed as either personal or real property. 50 Ind. Admin. Code 4.2-1-3. With respect to personal property, a tax return must be filed in each taxing district where property has a tax situs subject to certain qualifications. 50 I.A.C. 4.2-4-2(a).

Taxpayers must record the cost of depreciable property, both real and personal, and use that cost in determining the value of the depreciable personal property subject to assessment. Id. Ordinary depreciation of personal property is calculated pursuant to a set schedule contained in the Indiana Administrative Code. This schedule automatically reflects all adjustments for Indiana property tax purposes except for abnormal obsolescence. 50 I.A.C. 4.2-4-8. Consequently, Indiana taxpayers are not allowed adjustments to personal property assessments for normal obsolescence.

50 I.A.C. 4.2-9-2

Indiana taxpayers are, however, allowed adjustments to personal property assessments for abnormal obsolescence.

50 I.A.C. 4.2-9-3 (emphases added). Abnormal obsolescence "includes the impairment of desirability and usefulness brought about by new inventions and improved processes for production, or the impairment of functional capacity or efficiency if the inadequacy or overadequacy causes a loss in value and has made the property incapable of continued use for a prolonged period during the assessment year." 50 I.A.C. 4.2-4-8(a). The term "abnormal obsolescence" must be strictly construed and "limited to a situation where unforeseen changes in market values, exceptional technological obsolescence, or destruction by catastrophe occurs, providing that such events have a direct effect upon the valuation of the depreciable personal property of the taxpayer...." 50 I.A.C. 4.2-4-8(c).

Abnormal obsolescence "should be recognized to the extent that the property qualifies for the adjustment and the taxpayer is able to substantiate the facts, circumstances, and amount of the claim in order to properly determine the true tax value of the subject property." 50 I.A.C. 4.2-9-4. If a taxpayer substantiates a claim for abnormal obsolescence, an adjustment "will be allowed." 50 I.A.C. 4.2-9-6.

B. The Printing Press

Evansville Courier contends that the Board erred by concluding that Evansville Courier failed to establish the abnormal obsolescence of the Printing Press and its related equipment. As noted above, the Board based this conclusion on two primary factors: (1) Evansville Courier "failed to point to a single, specific, non-recurring triggering event," such as 9/11, justifying a determination of abnormal obsolescence; and (2) the Printing Press is still operable and has five years remaining of predicted useful service life. Appellant's App. p. 106.

There are two possible ways in which the Printing Press could qualify for an abnormal obsolescence adjustment: unforeseen changes in market values or exceptional technological obsolescence. Turning first to the latter, the Administrative Code requires that to make a successful claim of exceptional technological obsolescence, the personal property at issue must not be "still capable of performing the function for which it was acquired" and must not still be "producing both on and before the assessment date[.]" 50 I.A.C. 4.2-9-3(c). Here, it is undisputed that the Printing Press was still capable of performing the function for which it was acquired, was still producing output both on and before the assessment dates, and still had at least five years left of continuing functionality. Appellant's App. p. 106 (noting that Venisnik's own testimony established that there were "five years remaining of predicted useful service life" and that the Printing Press "continues to perform the purpose for which it was purchased twenty-five years ago"). Consequently, the plain terms of the Indiana Administrative Code mandate that Evansville Courier is not entitled to an abnormal obsolescence adjustment for the reason of exceptional technological obsolescence, and the Board did not err in so holding.

The other possible way in which Evansville Courier could establish abnormal obsolescence was to show unforeseen changes in market values of the personal property at issue. The example of unforeseen changes in market values provided in the Indiana Administrative Code is the case of a pharmaceutical manufacturer that produces a drug that is suddenly banned in the United States, rendering the company's equipment used to produce that drug abnormally obsolescent. 50 I.A.C. 4.2-9-3(b). The examples provided by the Board in the instant case involved two corporate entities that suffered a substantial decline in business following the 9/11 terrorist attacks. Appellant's App. p. 106.

Evansville Courier directs our attention to the evidence in the record tending to show a dramatic decline in the printed newspaper industry over the past decade. According to Evansville Courier, this precipitous drop in subscribers and circulation is directly linked to new technology and inventions, including smartphones, high speed internet, and social media such as Facebook and Twitter. Additionally, newspapers compete with 24-hour news coverage on cable news networks and also compete for classified advertising dollars with online services such as Craigslist.

As noted above, to qualify as abnormally obsolescent, the obsolescence must be unanticipated, unexpected, unforeseen, and non-recurring. Even if the Court agrees solely for argument's sake that the dramatic change in the newspaper industry over the past decade has been unanticipated, unexpected, and unforeseen, it is far more difficult to conclude that it is "non-recurring." That term is not defined in the Indiana Administrative Code. Merriam-Webster Dictionary defines "nonrecurring" as follows: "nonrecurrent; specifically: unlikely to happen again — used of financial transactions that affect a profit and loss statement abnormally." Merriam-Webster Dictionary, at https://www. merriam-webster.com/dictionary/non-recurring (last visited June 1, 2017). "Nonrecurrent," in turn, is defined as "not recurring," and "recur" is defined in relevant part as "to occur again after an interval: occur time after time." Merriam-Webster Dictionary, at https://www.merriam-webster.com/dictionary/recurring (last visited June 1, 2017). In other words, something that is "non-recurring" is a unique event that is unlikely to occur again.

In our view, an ongoing downward trend of an industry that has been occurring slowly over the course of a decade, and is still happening, cannot logically be defined as "non-recurring." It is more properly called "ongoing," or "currently occurring."

We acknowledge the administrative rule regarding "adjustment for obsolescence," which states that abnormal obsolescence "includes the impairment of desirability and usefulness brought about by new inventions and improved processes for production." 50 I.A.C. 4.2-4-8(a). At first blush, it may seem that this language, which implies a possibility of gradualness, conflicts with the requirement that the obsolescence be non-recurring. On closer examination, however, the language can be reconciled.

Initially, it is important to note that Rule 4-8 refers to the definition of abnormal obsolescence found in Rule 9-3, which includes the "non-recurring" requirement. Id. Furthermore, Rule 4-8 requires that the term "abnormal obsolescence" be strictly construed. Id. at -8(c). Finally, the Court believes that an impairment of desirability and usefulness brought about by new inventions and improved processes can, in fact, result from a non-recurring event and be of a non-recurring nature. The invention of the VHS videocassette system would be such an event from the perspective of companies manufacturing Betamax systems. The invention of MP3 players would be such an event from the perspective of companies manufacturing compact discs and compact disc players. There are undoubtedly countless other examples of industries facing a dramatic drop in the value of personal property because of a single new invention or a single new process development.

Here, unfortunately for Evansville Courier and the other struggling newspapers around the country, a whole host of events, inventions, and developments have taken place to cause the gradual decline of the industry. As noted above, among other things, we can look to high speed internet, smartphones, 24-hour television news, Facebook, Twitter, internet-only news providers such as Buzzfeed, etc. There is no one, non-recurring event on which blame can be placed. Under these circumstances, Evansville Courier has not established that the obsolescence of its property is non-recurring in nature. Therefore, the Board did not err by finding that Evansville Courier has not met its burden of establishing a prima facie case or by denying its petitions.

The judgment of the Board is affirmed.

SO ORDERED this 5th day of June 2017.