                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


STATE OF ARIZONA, ex rel., ARIZONA DEPARTMENT OF REVENUE,
                        Plaintiff/Appellee,

                                        v.

                  DAVID R. BOSCH, Defendant/Appellant.

                             No. 1 CA-TX 16-0015
                               FILED 6-13-2017


                   Appeal from the Arizona Tax Court
                          No. TX2015-000848
               The Honorable Christopher T. Whitten, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Shyla R. Freestone
Counsel for Plaintiff/Appellee

David R. Bosch, Phoenix
Defendant/Appellant



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
                        STATE/ADOR v. BOSCH
                          Decision of the Court

J O N E S, Judge:

¶1           David Bosch appeals from the tax court’s grant of summary
judgment in favor of the Arizona Department of Revenue (ADOR) holding
Bosch responsible for unpaid income taxes, interest, and penalties. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             After ADOR determined Bosch failed to file state income tax
returns for tax years 2000 and 2001, it issued notices of its proposed
assessment for those years. The assessments were based upon information
ADOR received from the Internal Revenue Service (IRS). See I.R.C.
§ 6103(d)(1)1 (authorizing disclosure of federal income tax returns and
return information to state agencies). ADOR later issued modified
proposed assessments. Bosch disagreed with the assessments and
requested an administrative hearing. ADOR noticed the requested hearing
but Bosch failed to appear. The hearing proceeded in his absence, and, after
reviewing the evidence, the hearing officer affirmed the assessments.

¶3            Thereafter, ADOR filed a complaint in tax court seeking
judgment against Bosch for the unpaid tax, interest, and penalties.2 After
Bosch answered the complaint, ADOR moved for summary judgment,
attaching the affidavit of ADOR’s custodian of records, Steve M. Wilkins,
Sr. Attached to Wilkins’ affidavit were: (1) the proposed assessments,
(2) Bosch’s response to the assessments, (3) the modified proposed
assessments, (4) Bosch’s response to the modified assessments, (5) the
notice of hearing, and (6) the decision of the hearing officer. Although
Bosch responded to ADOR’s motion, he did not file a controverting
statement of facts pursuant to Arizona Rule of Civil Procedure 56(c)(3) or
submit an affidavit of his own pursuant to Rule 56(c)(5).

¶4            Following oral argument, the tax court granted ADOR’s
motion and entered judgment against Bosch in the amount of $4,012.52 in
taxes, $6,954.56 in interest, and $3,977.29 in penalties. Bosch timely


1     Absent material changes from the relevant date, we cite a statute’s
current version.

2     The complaint also named Bosch’s wife as a defendant. ADOR later
obtained a default judgment against her, and she is not a party to this
appeal.



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                          STATE/ADOR v. BOSCH
                            Decision of the Court

appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) §§ 12-120.21(A)(1) and -170(C).

                                DISCUSSION

I.     Evidentiary Objections

¶5            Bosch argues the tax court erred in considering the
documents attached to Wilkins’ affidavit because, he contends, they were
not properly authenticated in accordance with Arizona Rules of Evidence
901, 902, and 1005. Bosch did not, however, object to Wilkins’ affidavit on
these grounds within the tax court. Had he done so, ADOR would have
had an opportunity to cure any alleged defects relating to authentication.
See Ancell v. Union Station Assocs., 166 Ariz. 457, 460 (App. 1990) (holding
that timely objections to supporting documentation are necessary to allow
the offering party a chance to cure alleged defects) (citing Johnson ex rel.
Johnson v. Svidergol, 157 Ariz. 333, 335 (App. 1988)). Because he did not, his
objection on this basis is waived. See A. Uberti & C. v. Leonardo, 181 Ariz.
565, 568 (1995) (deeming waived evidentiary objections not raised in
summary judgment proceedings) (citing Ancell, 166 Ariz. at 460, and then
Barone v. Rich Bros. Interstate Display Fireworks, 25 F.3d 610, 611 n.2 (8th Cir.
1994)); Mohave Elec. Coop., Inc. v. Byers, 189 Ariz. 292, 301 (App. 1997)
(rejecting a challenge to the foundation of documents not raised below)
(citations omitted).

¶6            Accordingly, Bosch presents no basis to exclude Wilkins’
affidavit, and the tax court did not err in considering it.3

II.    Summary Judgment

¶7            Bosch also argues, by implication, that the tax court erred in
granting summary judgment in favor of ADOR. We review the tax court’s
grant of summary judgment de novo. Sundevil Power Holdings, L.L.C. v.
ADOR, 240 Ariz. 339, 343, ¶ 12 (App. 2016) (citing Scottsdale/101 Assocs.,
L.L.C. v. Maricopa Cty., 238 Ariz. 291, 292, ¶ 7 (App. 2015)).

¶8            Summary judgment should be granted when there is no
genuine dispute as to any material fact such that the moving party is
entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). The party
moving for summary judgment “must come forward with evidence it

3     Bosch also appears to argue that ADOR failed to produce certain
documents he had requested from them. This claim is not supported by the
record, which contains neither discovery requests nor a motion to compel.


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                          STATE/ADOR v. BOSCH
                            Decision of the Court

believes demonstrates the absence of a genuine issue of material fact” and
“explain why summary judgment should be entered in its favor.” Nat’l
Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14 (citing Orme Sch. v. Reeves,
166 Ariz. 301, 310 (1990), and United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195
(App. 1990)). If the moving party meets this initial burden of production,
the burden shifts to the non-moving party to “call the court’s attention to
evidence overlooked or ignored by the moving party” or to “explain why
the motion should otherwise be denied.” Id. at 119, ¶ 26. In reviewing a
motion for summary judgment, a court “must view the evidence in a light
most favorable to the non-moving party and draw all justifiable inferences
in its favor.” Id. at 116, ¶ 17 (citing Sanchez v. City of Tucson, 191 Ariz. 128,
130, ¶ 7 (1998), and Orme Sch., 166 Ariz. at 309-10).

¶9            Here, ADOR met its initial burden of production. ADOR
supported its motion for summary judgment with proposed assessments
for tax years 2000 and 2001 that were based upon information ADOR
received from the IRS. ADOR also attached the decision of the hearing
officer, who concluded ADOR had searched its records and determined
Bosch had failed to file state income tax returns for the relevant years. The
hearing officer also concluded Bosch had “produced no evidence” to show
ADOR’s assessments were incorrect or that ADOR “improperly relied on
information from the IRS.”            Thus, ADOR submitted evidence
demonstrating the absence of a genuine issue of material fact and its motion
explained why summary judgment should be entered in its favor.

¶10             Bosch opposed ADOR’s motion for summary judgment by
arguing there was no evidence he “failed to file state income tax returns for
tax years 2000 and 2001.” But, “when the moving party presents sworn
proof of specific facts negating the adverse party’s pleadings, the adverse
party must respond with proof of specific facts showing a genuine issue of
fact for trial.” Portonova v. Wilkinson, 128 Ariz. 501, 502 (1981) (citing Gibbons
v. Globe Dev., Nev., Inc., 113 Ariz. 324, 325 (1976), and Gomez v. Great Am.
Ins., 26 Ariz. App. 394, 396 (1976)). Bosch did not attach a controverting
affidavit avowing he had filed returns for 2000 and 2001; nor did he produce
copies of the returns or any other evidence indicating returns had been
filed. He did not identify any evidence that refuted ADOR’s claims or
otherwise explain why ADOR’s motion should be denied. Therefore,
summary judgment was properly granted in ADOR’s favor.4


4       To the extent Bosch introduces additional issues within his reply
brief, those arguments have been waived and we do not address them. This



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                          STATE/ADOR v. BOSCH
                            Decision of the Court

                               CONCLUSION

¶11          For the foregoing reasons, we affirm the tax court’s entry of
judgment in favor of ADOR. We also award ADOR its costs incurred on
appeal upon compliance with ARCAP 21(b).




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




Court will not consider issues raised for the first time in a reply. See Best v.
Edwards, 217 Ariz. 497, 504 n.7, ¶ 28 (App. 2008) (citing Menendez v. Paddock
Pool Constr. Co., 172 Ariz. 258, 263 n.5 (App. 1991)).


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