                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


     LOMA MARIPOSA LIMITED PARTNERSHIP, Plaintiff/Appellee,

                                        v.

              SANTA CRUZ COUNTY, Defendant/Appellant.

                             No. 1 CA-TX 17-0001
                              FILED 12-28-2017


           Appeal from the Superior Court in Maricopa County
                           No. TX2013-000606
             The Honorable Christopher T. Whitten, Judge

                                  AFFIRMED


                                   COUNSEL

Buchalter, PC, Scottsdale
By Douglas S. John, Shaun T. Kuter
Counsel for Plaintiff/Appellee

Helm, Livesay, Worthington, Ltd., Tempe
By Roberta S. Livesay, Joshua W. Carden
Counsel for Defendant/Appellant



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
                    LOMA MARIPOSA v. SANTA CRUZ
                         Decision of the Court

W I N T H R O P, Presiding Judge:

¶1            Santa Cruz County appeals the tax court’s summary
judgment in favor of Loma Mariposa, L.P. (“Taxpayer”) on Taxpayer’s error
correction claim. For the following reasons, we affirm.

             FACTUAL AND PROCEDURAL BACKGROUND

¶2             Taxpayer owns an apartment complex in Nogales, Arizona
(“the Property”) that is operated pursuant to the Federal Low Income
Housing Tax Credit (“LIHTC”) program. See 26 U.S.C. § 42 (providing tax
incentives to low income housing investors).1 Because of its LIHTC status,
the Property is subject to state and federal restrictions that affect its value.

¶3            In 2012, Taxpayer filed a notice of claim (“the Claim”) with
the Santa Cruz County Assessor, asserting the Assessor had failed to
consider those legal restrictions in assessing the Property for tax years 2009
through 2012. See Ariz. Rev. Stat. (“A.R.S.”) § 42-16254(A)(1). Taxpayer’s
attorney, Douglas John, prepared the Claim using a form developed by the
Arizona Department of Revenue (“the Department”) and found on the
County’s website. See A.R.S. § 42-16254(B)(1). He completed the address
portion of the form as follows:

    4A. OWNER’S NAME AND                   4B. MAIL DECISION TO:
    ADDRESS AS SHOWN ON
    TAX ROLL:
    Loma Mariposa LP                       Douglas S. John c/o Frazer Ryan
    c/o First American Com’l RE Service    3101 N. Central Avenue, Suite 1600
    PO Box 167928 Irving TX 75016          Phoenix, Arizona 85012-2615


(Emphasis added.)

¶4             The Claim reflected that Douglas John from the law firm of
Frazer Ryan Goldberg & Arnold (“Frazer Ryan”) completed the form and
signed it as a representative of the Property owner. The Claim attached a
letter detailing the basis of Taxpayer’s claim, written on Frazer Ryan
letterhead and signed by John.

¶5            Pursuant to A.R.S. § 42-16254(C), the Assessor had sixty days
to provide a written response to the Claim, either agreeing with Taxpayer’s

1      We cite the current version of all applicable statutes because no
revisions material to this decision have since occurred.


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                   LOMA MARIPOSA v. SANTA CRUZ
                        Decision of the Court

position—thus providing “consent to the error”—or disputing the alleged
error. Although the Assessor mailed his response within sixty days, he did
not mail it to John at the law firm address indicated in Section 4B of the
Claim. Instead, the Assessor mailed his response to the Irving, Texas
address listed in Section 4A.2 Because Taxpayer no longer used the Irving
address, neither Taxpayer nor its attorney received the Assessor’s response.

¶6            After the Assessor’s statutory time to respond had run,
Taxpayer wrote the Assessor and the County Board of Supervisors,
pointing out “[a] failure to file a written response within sixty days
constitutes consent to the error,” and demanding the Board of Supervisors
direct the County Treasurer to correct the tax roll pursuant to § 42-16254(C).
The Treasurer did not correct the roll; instead, the Assessor provided
Taxpayer’s attorney with a copy of the Assessor’s response denying the
Claim.

¶7           After an unsuccessful administrative appeal, Taxpayer filed a
complaint in tax court pursuant to § 42-16254(G). The parties filed cross-
motions for summary judgment. The tax court granted Taxpayer’s motion
and denied the County’s, concluding the Assessor had consented to the
Claim by mailing his response to the wrong address.

¶8           The County timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-170(C).

                                ANALYSIS

¶9            We review the tax court’s grant of summary judgment de novo.
See Wilderness World, Inc. v. Dep’t of Revenue, 182 Ariz. 196, 198 (1995). We
can affirm the judgment on any basis supported by the record.3 See
Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8 (App. 2006).


2      Taxpayer asserts that at some time before the Assessor mailed his
decision, Taxpayer’s address on the tax roll had been changed to reflect a
Fort Worth, Texas address. The County does not dispute this fact. Both the
Irving and Fort Worth addresses belong to companies that process tax bills
and make tax payments on behalf of lenders.

3      In Loma Mariposa II, L.P. v. Santa Cruz County (“Loma Mariposa II”), 1
CA-TX 15-0007, 2016 WL 6871421 (Ariz. App. Nov. 22, 2016) (mem.
decision), this court addressed a related case involving a different taxpayer.
In that case, the Assessor admitted his response was sent to the wrong



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                   LOMA MARIPOSA v. SANTA CRUZ
                        Decision of the Court

       I.     Consent Under § 42-16254(C)

¶10          The County argues the tax court erred in granting Taxpayer’s
motion for summary judgment because “the evidence on which it is based
creates a genuine issue of material fact.” (Emphasis and capitalization
omitted.)

¶11           We begin with the language of § 42-16254(C), which provides
in relevant part:

               Within sixty days after receiving a notice of claim, the
       tax officer may file a written response to the taxpayer to either
       consent to or dispute the error and to state the grounds for
       disputing the error. A failure to file a written response within
       sixty days constitutes consent to the error . . . .

(Emphasis added.)

¶12            This court has previously held that an administrative
response mailed within the statutory time period but sent to the wrong
address is not timely filed. See Salt River Project Agric. Improvement & Power
Dist. v. Ariz. Dep’t of Econ. Sec. (“SRP”), 156 Ariz. 155, 157 (App. 1988). In
SRP, the plaintiff mailed its petition for review to the wrong address. Id. at
155. This court held that “even though SRP acted within the fifteen-day
appeal period, its actions did not constitute a timely filing.” 4 Id. at 156.
Here, we must decide whether the Assessor mailed his response to the
proper address.

¶13          The County argues the Assessor complied with § 42-16254 by
sending his response to the address provided in Section 4A of the Claim
form, which was Taxpayer’s address on the tax roll from 2009 through part

address, and this court affirmed summary judgment in favor of the
taxpayer. Id. at *2, *4, ¶¶ 11, 18. Although the facts of this case are slightly
different, much of the reasoning from our decision in Loma Mariposa II
applies here.

4      Courts strictly apply filing deadlines in tax cases. See, e.g., Ringier
Am. v. State Dep’t of Revenue, 184 Ariz. 250, 254 (App. 1995) (“We therefore
hold that the tax court correctly held that [the taxpayer’s] failure to timely
pursue the appropriate appellate procedures required dismissal of its
action.”); Pesqueira v. Pima Cty. Assessor, 133 Ariz. 255, 257 (App. 1982) (“The
filing deadline [] is a jurisdictional condition.” (citation omitted)). The
enforcement of deadlines applies to taxpayers and taxing authorities alike.


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                   LOMA MARIPOSA v. SANTA CRUZ
                        Decision of the Court

of 2012. In so arguing, the County would have this court disregard the
explicit direction in Section 4B of the Claim form that Taxpayer provide the
Assessor a “mail decision to” address. The County’s argument is at
irreconcilable odds with the very form that the government created and that
taxpayers are required to use in filing a notice of claim. Simply stated, there
would be no purpose for the “mail decision to” box on the form if that was
not the address to which the Assessor was to mail his decision.

¶14           As noted, § 42-16254(B)(1) requires taxpayers to file their
notice of claim “in a form prescribed by the [D]epartment.” In compliance
with § 42-16254, Taxpayer used the Department’s form, which is available
on the Assessor’s website. That form instructs a taxpayer to provide an
address to which the Assessor can “mail [his] decision.” As directed,
Taxpayer inserted the name and address of its attorney in Section 4B. The
Assessor, however, disregarded both the address in Section 4B and the fact
that Taxpayer was represented by an attorney. Instead, the Assessor mailed
his response to the address provided in Section 4A.5

¶15            Our supreme court has held “that an agency must follow its
own rules and regulations; to do otherwise is unlawful.” Clay v. Ariz.
Interscholastic Ass’n, 161 Ariz. 474, 476 (1989) (citations omitted). That
reasoning applies here. The Department developed a form that taxpayers
must use in filing a notice of claim. See A.R.S. § 42-16254(B)(1). The
Assessor provided this form to taxpayers on his website. Having induced
taxpayers to rely on this form, the Department and the Assessor must abide
by the form’s instructions and mail the response to the address set forth in
Section 4B.

¶16           Here, because the Assessor mailed his response to the wrong
address, neither Taxpayer nor its attorney received the response. Therefore,
although the Assessor mailed his response within the sixty-day period, it
was not timely as a matter of law and, pursuant to § 42-16254(C), the
Assessor consented to the error alleged by Taxpayer. Finding no genuine

5      The tax court concluded that because Taxpayer did not designate
John as its agent pursuant to A.R.S. § 42-16001, the Assessor was not
required to mail his response to John. We respectfully disagree. Under
Arizona law, “a lawyer is the agent of his or her client.” Cahn v. Fisher, 167
Ariz. 219, 221 (App. 1990) (citation omitted). Here, it was apparent from
the Claim form and the attached correspondence that Taxpayer was
represented by an attorney. As such, it was clear that John was acting as
Taxpayer’s agent.



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                   LOMA MARIPOSA v. SANTA CRUZ
                        Decision of the Court

issue of disputed fact, we affirm the tax court’s entry of summary judgment
in favor of Taxpayer.6

       II.    The Merits

¶17          The County raises several contentions relating to the merits of
Taxpayer’s claim; however, our resolution of the statutory consent issue
renders these issues moot. Accordingly, we decline to address them.

                                 CONCLUSION

¶18            For the foregoing reasons, we affirm the entry of summary
judgment. Taxpayer requests attorneys’ fees on appeal pursuant to A.R.S.
§ 12-348, which authorizes an award of fees to a party “that prevails by an
adjudication on the merits in an action brought by the party” against a
county challenging the assessment of taxes. A.R.S. § 12-348(B)(1). In the
exercise of our discretion, we decline to award fees for the same reasons
that the tax court denied Taxpayer’s request for fees.7 We award Taxpayer
its taxable costs upon compliance with Arizona Rule of Civil Appellate
Procedure 21.




                           AMY M. WOOD • Clerk of the Court
                           FILED:    JT


6     If Taxpayer or its attorney had received the Assessor’s response
within the sixty-day period, a different result might ensue.

7      In denying fees to Taxpayer, the tax court explained that the law firm
representing Taxpayer had “represented several taxpayers before the Tax
Court in essentially identical litigation against Santa Cruz County.” The
court explained that “the additional effort required to litigate the later cases
was negligible, amounting to little more than changing the caption on the
pleadings and motions.” The same reasoning applies on appeal. The
answering brief contained many of the same arguments set forth in the
answering brief in Loma Mariposa II, wherein the taxpayer was represented
by the same lawyers. This court awarded fees to the taxpayer in Loma
Mariposa II. See 1 CA-TX 15-0007, 2016 WL 6871421, at *4, ¶ 18.


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