                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
                ______________________________________________

MALL OF MEMPHIS ASSOCIATES,

              Petitioner-Appellee,
                                                   Shelby Chancery No. 106118-3
Vs.                                                C.A. No. 02A01-9609-CH-00214

TENNESSEE STATE BOARD OF
EQUALIZATION AND RITA C.
CLARK, Assessor of Property
                                                FILED
for Shelby County,
                                                  August 1, 1997
            Respondents-Appellants.
                                       Cecil Crowson, Jr.
____________________________________________________________________________
                                        Appellate C ourt Clerk

               FROM THE SHELBY COUNTY CHANCERY COURT
             THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR


                 Clare Orman Shields, Harry J. Skefos, Ron W. Mcafee,
          Michael A. Brady; Martin, Tate, Morrow & Marston, P.C., of Memphis
                                     For Appellee

                          Ronald Lee Gilman, Steven C. Bramer;
              Farris, Mathews, Gilman, Branan & Hellen, P.L.C. of Memphis
                               For Appellant, Rita C. Clark

                    Charles W. Burson, Attorney General and Reporter
                       Christine Lapps, Assistant Attorney General
                       For Tennessee State Board of Equalization




                             REVERSED AND REMANDED

                                      Opinion filed:




                                                           W. FRANK CRAWFORD,
                                                           PRESIDING JUDGE, W.S.


CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE

       This appeal involves a constitutional challenge by the Mall of Memphis Associates (the

Mall) to an increase in its property value by the Assessor of Property for Shelby County,
Tennessee (the Assessor). The respondents, Tennessee State Board of Equalization (the Board)

and Rita C. Clark,1 the Assessor, appeal the judgment of the chancery court voiding an increase

in the property assessment for the petitioner, the Mall. The chancery court held that the Board’s

reappraisal of the Mall’s property violated the Mall’s Fourteenth Amendment rights of equal

protection under the United States Constitution.

        In April 1989, Oak Court Mall and some adjacent property were purchased for $69.4

million.2 Following the sale, the Shelby County Board of Equalization (SCBOE) reduced the

appraised value of Oak Court Mall from $14.4 million to $8.5 million. In May 1989, upon

learning of the reduction through an article in The Commercial Appeal, the Assessor appointed

a task force to study the manner in which shopping malls had been valued during the 1980

county-wide reappraisal, the most recent reappraisal.3 The Assessor concluded that an error

existed in the base rental rates and gross rent multipliers used to appraise shopping malls in the

1980 county-wide reappraisal.

        The Assessor admitted that there were more than 24,000 parcels of commercial and

industrial property on the tax rolls of Shelby County in 1989 and estimated that there were

approximately 200 shopping malls and shopping centers in Shelby County in 1989.4 Other types

of commercial and industrial property, including shopping centers, were appraised the same way

as shopping malls in the 1980 county-wide reappraisal. However, the Assessor did not

investigate the possibility of similar errors in the other types of properties. Initially, the Assessor

intended to review and adjust the assessments of both shopping malls and shopping centers,

however, the Assessor was unable to allocate staff time before what the Assessor perceived as

the deadline.5


        1
          In 1989, Michael Hooks was the Assessor in Shelby County. At the time the
petition was filed, Harold Sterling was the Assessor. Pursuant to T.R.A.P. 19(c), Rita Clark
was substituted as a defendant when she became the Assessor.
        2
         The adjacent property included an office building and was worth approximately $9
million. Oak Court Mall was therefore sold for approximately $60 million.
        3
         The 1980 county-wide reappraisal did not include some commercial land and rural
acreage. These properties were reappraised in 1982.
        4
         In this opinion, we will refer to enclosed malls as “shopping malls” and strip malls
as “shopping centers.”
        5
         The Assessor has an April deadline to correct an error retroactively, but in 1989, the
Assessor believed incorrectly that the deadline was August.

                                                  2
       After the inputs for base rent were changed, the Assessor increased the appraised value

for twelve shopping malls and fifteen anchor stores in Shelby County on August 31, 1989. The

Assessor increased the Mall’s appraised value from $15,249,100.00 to $41,217,000.00.

       The Mall contested the actions of the Assessor before the SCBOE, but the SCBOE

upheld the increased valuation. The Mall appealed to the Board pursuant to T.C.A. § 67-5-1412

(1994). On September 24, 1993, the Mall filed a motion for summary judgment asserting that

the Assessor was not statutorily authorized to revalue the property in a nonreappraisal year and

that the revaluation in this case was a “spot reappraisal” in violation of Article II, Section 28 of

the Tennessee Constitution and the Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution.

       The Board denied the Mall’s motion for summary judgment because the Board believed

that the Assessor had the statutory authority to adjust property values in nonreappraisal years,

that the Assessor had not violated the requirements of equality and uniformity in Article II,

Section 28 of the Tennessee Constitution, and that the Assessor had not violated the Equal

Protection Clause of the Fourteenth Amendment of the United States Constitution.

        An evidentiary hearing was held by the Board before an administrative judge on October

21, 1994. The administrative judge found no basis for overturning the assessment change. The

Mall appealed to the Board’s Assessment Appeals Commission, which affirmed the decision of

the administrative judge. On June 29, 1995, the Appeals Commission held that the reappraisal

did not violate the Tennessee Constitution’s mandate of “equality and uniformity” and that there

was no proof of arbitrary action by the Assessor and no proof of an equal protection violation

under the Fourteenth Amendment.

        On July 31, 1995, the Mall filed a petition in the Chancery Court of Shelby County for

review of the Appeals Commission’s decision pursuant to T.C.A. § 67-5-1511 (1994). The

petition requested a stay of the administrative proceedings and a finding that the Assessor

subjected the Mall to an unlawful “spot reappraisal” of its property in violation of the Fourteenth

Amendment. On August 30, 1995, the Assessor filed an answer to the petition denying that a

stay was necessary and that the Mall was entitled to any relief.

        The chancery court held hearings on January 12, 1996 and February 21, 1996. On March

18, 1996, the chancery court issued a decree finding that the Assessor initially intended to review


                                                 3
and adjust the assessments of both shopping malls and shopping centers in Shelby County, but

that the Assessor actually reviewed and adjusted only the assessments on shopping malls and

their anchor stores.6 The chancery court held that the Assessor had the statutory authority under

T.C.A. § 67-5-1603(a) (1994) to adjust an assessment in a nonreappraisal year and stated, “Such

adjustments need not be made across an entire constitutional class, but must be applied in a non-

discriminatory manner.” The chancery court voided the Mall’s increased assessment on the basis

that the Assessor had unlawfully discriminated against the Mall in violation of the Mall’s

Fourteenth Amendment rights under the United States Constitution because the court could find

no legitimate distinction between shopping malls and shopping centers.

       The Assessor and the Board appeal the judgment of the chancery court and present two

issues for our review: 1) whether the chancery court erred by applying the wrong legal standard

in an equal protection claim, and 2) whether the chancery court erred in determining that there

is no substantive difference between a shopping mall and a shopping center. The Mall, the

appellee in this appeal, presents three issues: 1) whether the Assessor and the Board have

overcome the presumption of correctness given to the findings by the chancery court; 2) whether

the Assessor and the Board are estopped from arguing that the chancery court erred in using the

wrong legal standard; and 3) whether the chancery court’s ruling is sustainable on other grounds.

       We will first examine the Mall’s second issue as to whether the Assessor and the Board

are estopped from arguing that the chancery court used the wrong legal standard. The Mall

argues that the Assessor and the Board are estopped because they expressly agreed with the

chancellor as to the controlling factual question.

       In a colloquy with the parties’ attorneys, the chancellor asked, “[If] the Court finds that

there is a substantive similarity between these two [shopping malls and shopping centers], then

what is your position with regard to the equality and uniformity?” Counsel for the Assessor

responded, “If Your Honor finds that there is no rational basis for the assessors to distinguish

between shopping malls on one hand and shopping centers on the other, then I think that you

have to find that this was a spot reappraisal.” Counsel for the Board also made similar remarks.

       The chancery court proceeded to find that there was not a substantial difference between


       6
           The decree was made final pursuant to Tenn. R. Civ. P. 54.02 by order entered July
1, 1997.

                                                4
shopping malls and shopping centers and, therefore, that it was a spot reappraisal. The Mall

claims that T.R.A.P. 36(a) estops the Board and the Assessor’s argument about the wrong legal

test. T.R.A.P. 36(a) provides in pertinent part, “Nothing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take whatever

action was reasonably available to prevent or nullify the harmful effect of an error.”

          The Mall argues that the Board and the Assessor failed to take any action to correct the

chancellor’s framing of the issue. We disagree. First, the Board and the Assessor brought the

proper legal standard to the chancellor’s attention during both opening and closing remarks.

Second, the chancellor asked the parties’ counsels’ position concerning “equality and

uniformity.” Equality and uniformity are requirements of Article II, Section 28 of the Tennessee

Constitution, not the Equal Protection Clause of the Fourteenth Amendment. The Board and the

Assessor claim that the chancellor used the wrong legal standard in an equal protection claim

under the Fourteenth Amendment, not in an equality claim under the Tennessee Constitution.

Therefore, we must examine the Board and the Assessor’s first issue: whether the chancery court

erred by using the wrong legal standard in an equal protection claim.

          The Board and the Assessor argue that the chancellor erred in finding a constitutional

violation based solely on his perception of no substantial difference between a shopping mall and

a shopping center because the chancellor was required to find intentional discrimination before

finding a constitutional violation. The rule is “well-established” that “mere errors of judgment

do not support a claim of discrimination, but that there must be something more, --something

which, in effect, amounts to an intentional violation of the essential principle of practical

uniformity.” Sioux City Bridge Co. v. Dakota County, Nebraska, 260 U.S. 441, 447, 43 S. Ct.

190, 67 L. Ed. 340 (1923).

          In another colloquy with the Assessor’s attorney, the chancellor addressed the Assessor’s

issues:

                         MR. GILMAN: Okay, I’ll stop there, Your Honor. Let’s
                 go to point two then that the assessor had only one motive. It
                 wasn’t improper. It was a good faith, nondiscriminatory intent to
                 correct the error. . . .
                         THE COURT: Let me save you some time. You don’t
                 need to argue that one either because, frankly, even though they
                 talk about, through a blow-up of the Commercial Appeal article
                 and the chewing out of an employee, that in and of itself doesn’t
                 show bad motive.


                                                 5
                        It just shows that people are upset and wondering what’s
                going on. And in the absence of something more concrete, more
                smoking gunnish, so to speak, the Court is not going to allow the
                presumption of bad faith to occur when the presumption in the
                law is good faith absent someone carrying a substantial burden of
                proof to show bad faith. So I’m not concerned about that.

        However, the chancellor concluded, “Yes, I do find that it is a discrimination that violates

the equal protection of [the] Fourteenth Amendment of the United States Constitution.” It is

implicit in his statement that the chancellor found intentional discrimination with no rational

basis for the disparate treatment. We will presume that the chancellor used the correct legal

standard from his statement that “it is a discrimination.”

        We perceive that the real issue in this case is the Mall’s first issue: whether the Assessor

and the Board have overcome the presumption of correctness given to the findings by the

chancery court.

        Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the chancery court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

        When determining the merits of equal protection challenges, Tennessee courts have

followed the analytical framework developed by the United States Supreme Court and have

utilized three standards of scrutiny, depending upon the right asserted. Tennessee Small Sch.

Sys. v. McWherter, 851 S.W.2d 139, 153 (Tenn. 1993). Equal protection analysis requires strict

scrutiny of state action only when the state action interferes with the exercise of a “fundamental

right” (e.g., right to vote, right of privacy), or operates to the peculiar disadvantage of a “suspect

class” (e.g., alienage or race). State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994). Because

neither a fundamental right nor a suspect class is present in this case, the proper standard of

scrutiny is the “rational basis” test.

        In Doe v. Norris, 751 S.W.2d 834 (Tenn. 1988), the Tennessee Supreme Court discussed

the “rational basis” test:

                        The concept of equal protection espoused by the federal
                and our state constitutions guarantees that “all persons similarly
                circumstanced shall be treated alike.” Conversely, things which
                are different in fact or opinion are not required by either
                constitution to be treated the same. “The initial discretion to
                determine what is ‘different’ and what is ‘the same’ resides in the


                                                  6
               legislature of the States,” and legislatures are given considerable
               latitude in determining what groups are different and what groups
               are the same. In most instances the judicial inquiry into the
               legislative choice is limited to whether the classifications have a
               reasonable relationship to a legitimate state interest.

751 S.W.2d at 841 (citations omitted). Although the present case does not involve a legislative

choice, the proper test is whether the Assessor’s actions have a reasonable relationship to a

legitimate state interest. The determinative issue is whether the facts show some reasonable

basis for the disparate state action. Tennessee Small Sch. Sys., 851 S.W.2d at 153.

       The chancery court determined that the Assessor did not have a “legitimate basis” for

making a distinction between shopping malls and shopping centers. However, implicit in this

ruling was a showing of disparate state action, which is a necessary element of a claim of

violation of equal protection rights. Tennessee Dept. of Human Services v. Hinton, 660 S.W.2d

506, 510 (Tenn. App. 1983). The element that the taxpayer must always prove is that he or she

has been a victim of “intentional and arbitrary discrimination whether occasioned by express

terms of a statute or by its improper execution through duly constituted agents.” Southland

Mall, Inc. v. Garner, 455 F.2d 887, 889 (6th Cir. 1972) (quoting Sunday Lake Iron Co. v.

Township of Wakefield, 247 U.S. 350, 352, 38 S. Ct. 495, 62 L. Ed. 1154 (1918)).

       The purpose of the Equal Protection Clause of the Fourteenth Amendment is to secure

every person within the state’s jurisdiction against intentional and arbitrary discrimination.

Sioux City Bridge Co., 260 U.S. at 445. Unless the taxpayer can show intentional and arbitrary

discrimination, the state does not have to meet the “rational basis” test. The burden of

establishing intentional discrimination rests upon the taxpayer challenging the official action.

Southland Mall, 455 F.2d at 889.

       In Southland Mall, the Sixth Circuit discussed discrimination in a taxpayer’s equal

protection claim:

                      While taxpayers have normally prevailed only when they
               were able to demonstrate a systematic pattern of discrimination,
               such a systematic pattern does not appear to be an essential
               element of the claim. Thus clear proof that a tax was
               discriminatorily aimed at a single taxpayer has been held to
               support an equal protection claim.
                      It is obvious, however that proof of intentional
               discrimination is likely to be difficult where the taxpayer cannot
               show a systematic pattern of discrimination or direct evidence of
               improper intention. The court is then asked to infer improper
               motive from isolated actions of an assessing board or other tax


                                               7
               officials. Understandably such efforts have rarely succeeded in
               the federal courts, since there is a natural reluctance to infer
               official misconduct from ambiguous circumstances alone.

Southland Mall, 455 F.2d at 889-90 (citations omitted).

       In this case, the Assessor claimed that the decision to reappraise only the shopping malls

was an allocation of staff and resources problem and that there was not an improper motive, and

the chancellor found that the Assessor did not have an improper motive. We believe that this

finding is correct. The Assessor was acting to correct an error, not to improperly discriminate

against the Mall.

       The Mall argues that the chancery court properly inferred that the Assessor intentionally

discriminated against the Mall because of a memorandum written by Richard Ward, the Director

of Valuation Standards and Computer Assisted Mass Appraisal at the Assessor’s office. In a

memorandum dated July 11, 1989, Ward noted to the Assessor, “It is deemed by R. Ward unwise

to proceed with this effort until all malls, shopping centers, and strip shopping can be handled

together (for 1990). The distinction between ‘mall,’ ‘shopping center,’ or any other intensive

retail location is at best indistinct and at worst entirely arbitrary.” However, the Assessor

presented a letter dated May 31, 1989 from the Assessor to the SCBOE that stated, “As the new

Assessor, I am desirous of correcting all errors to assure equity in taxation. This should not be

seen as an attempt to penalize undervalued properties or to update appraisals to current market

value, but rather as a correction to a sensible value for the base year of 1980.”

       We do not believe that the Assessor’s actions, even in light of Ward’s memorandum,

show an improper motive or intentional discrimination. It may have been “unwise” for the

Assessor to proceed, but the Assessor’s actions were nothing more than a possible error in

judgment. Relief cannot be predicated upon mere errors of judgment committed by tax officials.

Southland Mall, 455 F.2d at 889.

       We also believe that the Mall has not shown a “systematic pattern” of discrimination.

The only tax-year at issue is 1990. The Mall was not taxed out of proportion with other

members of its class in any year before or after 1990.7 In 1991, the Assessor conducted a new

county-wide reappraisal that equalized the taxes on every member of the commercial and


       7
          The Assessor tried to change the value of the Mall’s property for 1988 and 1989,
but the increase was not allowed because the change was not timely.

                                                8
industrial class.

        Finally, the Mall has not proven that the increased assessment was a tax aimed at a single

taxpayer. The Assessor increased the appraisals of eleven other malls in addition to the anchor

stores. The Assessor believed that the “subclass” of shopping malls was a proper place to start

the correction of a possible error and was not acting to single out the Mall.

        The Mall claims that the increased assessment is a “spot reappraisal” because the

Assessor reappraised twelve shopping malls and their fifteen anchor stores, but did not

reappraise or investigate the entire commercial and industrial class. Basically, the Mall is

arguing that the Assessor cannot constitutionally make any changes to a member of a class

without changing or investigating every member of the class in the same year. We do not

believe that the constitutional requirements of the Fourteenth Amendment were intended to force

the Assessor, acting with limited resources and staff, to so tighten his or her operations.

        The Mall relies on Allegheny Pittsburgh Coal Co. v. County Commission of Webster

County, West Virginia, 488 U.S. 336, 109 S. Ct. 633, 102 L. Ed. 2d 688 (1989). In Allegheny

Pittsburgh, the Supreme Court stated,

                The Webster County tax assessor valued petitioners’ real property
                on the basis of its recent purchase price, but made only minor
                modifications in the assessments of land which had not been
                recently sold. This practice resulted in gross disparities in the
                assessed value of generally comparable property, and we hold that
                it denied petitioners the equal protection of the laws guaranteed
                to them by the Fourteenth Amendment.

488 U.S. at 338, 109 S. Ct. at 635. The Mall argues that the Assessor’s action in this case was

a conscious and arbitrary decision that resulted in the Mall being assessed at a much higher value

than similarly situated property in the same class. The Mall believes that this case demands the

same result the United States Supreme Court reached in Allegheny Pittsburgh. We disagree

because the facts of Allegheny Pittsburgh are substantially different from the facts in this case.

        In Allegheny Pittsburgh, the Supreme Court stated the important facts that “[p]etitioners’

property has been assessed at roughly 8 to 35 times more than comparable neighboring property,

and these discrepancies have continued for more than 10 years with little change.” Id. at 344,

109 S. Ct. at 638. The Court went on to conclude, “The relative undervaluation of comparable

property in Webster County over time therefore denies petitioners the equal protection of the

law.” Id. at 346, 109 S. Ct. at 639 (emphasis added).


                                                9
       In this case, the inequality suffered by the Mall occurred only during the 1990 tax year.

The Assessor was in the process of correcting an error and delayed the investigation of the

possibility of errors in other properties by only one year. In Allegheny Pittsburgh, the Supreme

Court made a distinguishing statement about the facts in that case: “But the present action is not

an example of transitional delay in adjustment of assessed value resulting in inequalities in

assessments of comparable property.” Id. at 344, 109 S. Ct. at 638. We believe that the facts

in the case before us present such an example of a “transitional delay.”

       In Allegheny Pittsburgh, the Supreme Court stated,

               The use of a general adjustment as a transitional substitute for an
               individual reappraisal violates no constitutional command. As
               long as general adjustments are accurate enough over a short
               period of time to equalize the differences in proportion between
               the assessments of a class of property holders, the Equal
               Protection Clause is satisfied. Just as that Clause tolerates
               occasional errors of state law or mistakes in judgment when
               valuing property for tax purposes, it does not require immediate
               general adjustment on the basis of the latest market
               developments. In each case, the constitutional requirement is the
               seasonable attainment of a rough equality in tax treatment of
               similarly situated property owners.

Id. at 343, 109 S. Ct. at 638 (citations omitted).

       The Equal Protection Clause protects the individual from state action that selects him or

her out for discriminatory treatment by subjecting him or her to taxes not imposed on others of

the same class. Hillsborough Township v. Cromwell, 326 U.S. 620, 623, 66 S. Ct. 445, 448,

90 L. Ed. 358 (1946). The right is the right to equal treatment. Id. The taxpayer cannot

complain if equality is achieved by increasing the same taxes of other members of the class to

the level of his or her own. Id.

       In this case, the Assessor achieved equality within one year of the Mall’s increased

assessment by increasing the same taxes of other members of the commercial and industrial class

in the 1991 county-wide reappraisal. In 1989, the Assessor was acting to correct a past inequity.

The Assessor was not trying to reappraise the Mall’s property to the 1990 fair market value. We

cannot find that the Mall was unfairly discriminated against or singled out in violation of the

Equal Protection Clause of the Fourteenth Amendment. The evidence preponderates against the

chancery court’s findings that the Assessor discriminated against the Mall.

        Because we find that there was no intentional discrimination, the state is not required to



                                                10
meet the rational basis test. Thus, the difference between a shopping mall and a shopping center

is irrelevant. The Board and the Assessor’s second issue is pretermitted.

        The Mall’s third issue for review is whether the chancery court’s ruling is sustainable on

other grounds. The Mall argues that the 1989 increased assessment violated Article II, Section

28 of the Tennessee Constitution, which mandates equality and uniformity in taxation throughout

the state:

               The ratio of assessment to value of property in each class or
               subclass shall be equal and uniform throughout the State, the
               value and definition of property in each class or subclass to be
               ascertained in such manner as the Legislature shall direct. Each
               respective taxing authority shall apply the same tax rate to all
               property within its jurisdiction.

Tenn. Const. art. II, § 28. The Tennessee Constitution creates three classes of property and

further classifies real property. See id. The Constitution states, “Real Property shall be

classified into four (4) subclassifications and assessed as follows . . . (b) Industrial and

Commercial Property, to be assessed at forty (40%) percent of its value.” Id.

        All property in the industrial and commercial subclass must be treated the same, and the

Mall argues that the Assessor’s actions, both in timing and effect, violate the requirement of

equality and uniformity. The equality and uniformity requirement of Article II, Section 28

applies across the classes and subclasses created by the Constitution. Marion County v. State

Bd. of Equalization, 710 S.W.2d 521, 523 (Tenn. App. 1986).

        The primary constitutional mandates governing property taxation in Tennessee are that

all property shall be taxed, according to its value, and that taxes shall be equal and uniform.

Metropolitan Gov’t of Nashville v. Hillsboro Land Co., 436 S.W.2d 850, 855 (Tenn. 1968).

The Court continued,

               Undoubtedly these fundamental principles of taxation are
               intended to apply to the time at which such taxes are assessed, so
               that the property taxed shall be so taxed at this value at the time
               at which the tax is imposed; and also the equality and uniformity
               of taxation required, are equality and uniformity with taxes on
               property of like character imposed at or about the same time.

Id. (quoting State v. Butler, 79 Tenn. 410, 413 (1883)).

        We agree with the Mall that the timing of reappraisals must be equal and uniform.

However, it is clear from the record that the Assessor did not reappraise the Mall’s property to

1989 or 1990 fair market values. Instead, the Assessor corrected a past error using the fair


                                               11
market value from the 1980 county-wide reappraisal.8

        The Mall cites a decision by an administrative judge from a hearing before the Board in

support of its position, In re Barnes, Davidson County (Tenn. Bd. of Equalization Oct. 16,

1987). The administrative judge found that the assessor in that case reappraised the land in

question to reflect the increase in land values since the last county-wide reappraisal, and the

judge voided the increase. Id. at 1-2. The administrative judge stated, “It should be stressed that

this case involves reappraisal of a small area of the county . . . in order to reflect the increase in

land values since 1984. This does not mean that the assessor cannot correct errors pursuant to

T.C.A. § 67-5-509 or increase appraisals in accordance with the periodic reappraisal

requirements of T.C.A. § 67-5-1601.” Id. at 2.

        We believe that the Assessor’s actions do not violate the equality and uniformity mandate

of the Tennessee Constitution. We may have reached a different result if the Assessor

reappraised the Mall’s value using the 1990 fair market value. However, the Assessor merely

adjusted the Mall’s previous assessment by correcting an error and equalized the Mall back to

the 1980 county-wide reappraisal. The Mall’s assessment was calculated using the same time

and base year as the rest of the commercial and industrial property.

        The Mall also argues that the Assessor lacked the statutory authority to reappraise the

Mall’s property in a nonreappraisal year. The Mall claims that the Assessor’s powers are

severely limited in nonreappraisal years. The Mall points out that the error correction statute,

T.C.A. § 67-5-509 (1994), does not allow the Assessor to change an assessment except those

with errors that do not involve the discretion or judgment of the Assessor. T.C.A. § 67-5-509(f)

(1994) provides,

                Errors or omissions correctable under this section include only
                obvious clerical mistakes, involving no judgment of or discretion
                by the assessor, apparent from the face of the official tax and
                assessment records, such as the name or address of an owner, the
                location or physical description of property, misplacement of a
                decimal point or mathematical miscalculation, errors of
                classification, and duplicate assessment. Errors or omissions
                correctable hereunder do not include clerical mistakes in tax
                reports or schedules filed by a taxpayer with the assessor.

        We agree with the Mall that the Assessor did not have the authority to change the


        8
         Because the Mall was constructed in 1983, the Mall’s assessed value in 1983 was
equalized back to the 1980 county-wide reappraisal.

                                                 12
assessment pursuant to T.C.A. § 67-5-509. The error in the formula in this case was more than

a clerical error or a mathematical miscalculation.

         The Assessor claims that she is authorized to change assessments pursuant to T.C.A. §

67-5-1603(a)(2), which provides: “The local assessor of property and county boards of

equalization may adjust individual assessments in accordance with other facts and information

relevant to the proper assessment of the property.” T.C.A. § 67-5-1603(a)(2) (1994). We believe

that this section allows the Assessor to make changes to individual assessments in nonreappraisal

years.

         T.C.A. § 67-5-1603(a)(3) (1994) provides, “No such changed assessments for individual

taxpayers shall result in inequality or destroy the uniformity of assessment intended to be

achieved by the reappraisal program.”

         We believe that the Assessor’s adjustment to the Mall’s assessment does not result in an

inequity or destroy uniformity because the Assessor equalized the Mall’s assessment using the

1980 county-wide reappraisal.

         Accordingly, the order of the chancery court is reversed. This case is remanded to the

Board for whatever proceedings may be necessary. Costs of this appeal are assessed against the

appellee.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
DAVID R. FARMER, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




                                               13
