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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             BLAINE A. WENDTLAND, Defendant/Appellant.

                             No. 1 CA-TX 18-0004
                               FILED 6-13-2019


                   Appeal from the Arizona Tax Court
                          No. TX2017-000299
               The Honorable Christopher T. Whitten, Judge

                                  AFFIRMED


                               APPEARANCES

Blaine A. Wendtland, Portage, WI
Defendant/Appellant

Arizona Attorney General’s Office, Phoenix
By Lindsay M. Hughes
Counsel for Plaintiff/Appellee
                     STATE/ADOR v. WENDTLAND
                         Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.


C A M P B E L L, Judge:

¶1             Blaine A. Wendtland appeals from the tax court’s grant of
summary judgment in favor of the Arizona Department of Revenue (the
“Department”) determining that he owes $28,627.99 in income tax, plus
penalties and interest. He also appeals from the denial of his motion for new
trial, reconsideration, and/or to vacate judgment (“Motion for New Trial”).
Because Wendtland failed to file a timely protest or pay the outstanding
taxes and seek a refund, he is not entitled to the requested tax relief. We
affirm.

                             BACKGROUND

¶2             In tax year 2004, Wendtland earned federal adjusted gross
income of $596,745. He did not file an Arizona state income tax return that
year. After the Department learned of his income from the Internal Revenue
Service, it notified Wendtland that he would be audited. See Ariz. Rev. Stat.
(“A.R.S.”) § 42-1108(A) (authorizing the Department to audit a taxpayer
who fails to file a return). Wendtland acknowledged receipt of the notice.

¶3             Once the audit was complete, the Department mailed
Wendtland a Notice of Proposed Assessment (“Notice”) stating that he
owed $28,627.99 in unpaid taxes, plus penalties and interest. The Notice
was dated July 29, 2015, and reflected a protest due date of October 27, 2015,
90 days later. See A.R.S. § 42-1251(A) (providing that an individual taxpayer
has 90 days to petition the Department for a hearing, correction, or
redetermination). Wendtland did not timely protest the assessment, and it
became final on October 28, 2015. See A.R.S. § 42-1108(B) (providing that a
deficiency notice becomes final 90 days after mailing).

¶4           Thereafter, the Department sued Wendtland to recover the
balance owed. After Wendtland answered, the Department moved for
summary judgment arguing that the assessment was final because
Wendtland failed to file a timely protest. See A.R.S. § 42-1251(D) (providing
that a taxpayer who fails to timely protest waives the right to question the




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                     STATE/ADOR v. WENDTLAND
                         Decision of the Court

deficiency amount).1 Wendtland did not respond, and the tax court granted
summary judgment in favor of the Department.

¶5            After entry of final judgment, Wendtland filed his Motion for
New Trial. The court denied his motion, and Wendtland appealed. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and (A)(5).

                               DISCUSSION

I.     Grant of Summary Judgment

¶6              On appeal, Wendtland challenges the tax court’s grant of
summary judgment. Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We review the grant of
summary judgment de novo. See Wilderness World, Inc. v. Dep’t of Revenue
State of Ariz., 182 Ariz. 196, 198 (1995).

¶7            Under A.R.S. § 42-1108 (A) and (B), the Department has the
authority to audit a taxpayer and to issue a deficiency assessment if a
taxpayer fails to file a return. In response to a notice of proposed
assessment, the taxpayer has 90 days to apply to the Department for a
hearing, correction, or redetermination. See A.R.S. § 42-1251(A). The
Department, in turn, must “consider the petition and grant a hearing, if
requested.” Id. Section 42-1251(D) provides that if a taxpayer fails to protest
within the statutory 90 days then “the amount determined to be due
becomes final,” and

       The taxpayer is deemed to have waived and abandoned the
       right to question the amount determined to be due, unless the
       taxpayer pays the total deficiency assessment, including
       interest and penalties. The taxpayer may then file a claim for
       refund pursuant to § 42-1118 within six months after payment
       of the deficiency assessment or within the time limits
       prescribed by § 42-1106, whichever period expires later.

¶8            Courts must interpret statutes to give effect to the legislature’s
intent. See Kent K. v. Bobby M., 210 Ariz. 279, 283, ¶ 14 (2005). When the
language of a statute is clear and unambiguous, we apply its plain language
and “need not engage in any other means of statutory interpretation.” Id.

1 The former version of A.R.S. § 42-1251 in effect during the Assessment
Period was A.R.S. § 42-1251(B). While the current wording is slightly
revised, that revision is not relevant to the issues presented here.


                                       3
                     STATE/ADOR v. WENDTLAND
                         Decision of the Court

Here, the language of § 42-1251(D) is clear and unambiguous. If a taxpayer
fails to petition the Department within 90 days after receiving a notice of
proposed assessment, the amount of the assessment becomes final. See
A.R.S. § 42-1251(D). After that time, a taxpayer may challenge the amount
of the assessment only by paying the amount due and filing a refund claim.
See id.

¶9            The Department audited Wendtland and determined that he
owed income tax for tax year 2004. In its Notice, the Department clearly
informed Wendtland that he had 90 days to apply to the Department for a
hearing, correction or redetermination. See A.R.S. § 42-1251(A). He did not
do so, however, and the assessment amount became final. See A.R.S.
§§ 42-1108(B), -1251(D). At that point, Wendtland could still have
challenged the assessment by paying the total amount due and filing a
refund claim pursuant to § 42-1118, see A.R.S. § 42-1251(D), but he did not
do that either.

¶10            Thus, when the Department moved for summary judgment
in tax court, it only had to establish that it mailed Wendtland the Notice
and he did not timely protest. The Department’s motion for summary
judgment attaches the Notice, which includes the protest due date. It also
attaches an affidavit from the Department’s audit manager, Jim Walsh,
establishing that the Notice was mailed and no timely protest was received.
The Walsh affidavit provided sufficient evidence that the assessment had
become final, contrary to Wendtland’s assertion.

¶11           On appeal, Wendtland admits that he did not file an
administrative appeal and acknowledges that he could have done so. At the
same time, he argues that the “administrative process featured no hearing
commensurate with any notion of procedural due process.” This claim fails
to recognize that the Department is required to provide a hearing upon
request. See A.R.S. § 42-1251(A). In other words, Wendtland did not have a
hearing because he did not request one. See Rosenberg v. Ariz. Bd. of Regents,
118 Ariz. 489, 492 (1978) (explaining that “[d]ue process only require[s] that
notice of and an opportunity for a hearing be given”).

¶12            Wendtland also argues that under A.R.S. § 42-1255 the
Department has the burden of proving “by a preponderance of the evidence
. . . any factual issue that is relevant to ascertaining the tax liability of a
taxpayer.” This burden of proof only applies, however, if a preponderance
of the evidence demonstrates that “[t]he taxpayer asserts a reasonable
dispute regarding the issue.” Id. Wendtland did not protest the assessment
administratively and did not respond to the Department’s motion for


                                      4
                     STATE/ADOR v. WENDTLAND
                         Decision of the Court

summary judgment in tax court. Thus, Wendtland did not assert “a
reasonable dispute” regarding any material factual issue and § 42-1255 did
not apply.

¶13           Because there was no disputed issue of fact relevant to the tax
court’s grant of summary judgment, we affirm.

II.    Denial of Motion for New Trial

¶14            Wendtland also alleges the Tax Court abused its discretion by
denying his Motion for New Trial. We will affirm the tax court’s decision
absent a clear abuse of discretion. See Waltner v. JPMorgan Chase Bank, N.A.,
231 Ariz. 484, 490, ¶ 24 (App. 2013) (applying the abuse of discretion
standard to a motion for new trial); City of Phoenix v. Geyler, 144 Ariz. 323,
328 (1985) (applying the abuse of discretion standard to a motion to vacate).
For the first time, Wendtland asserted in the Motion that he was not an
Arizona resident and did not earn income that was taxable in Arizona in
2004. He explained his failure to respond to the Department’s summary
judgment motion by stating that he had not received the Department’s
discovery responses. Wendtland attached the discovery responses to his
Motion for New Trial and argued that the Department’s documents fail to
establish his residency.2

¶15             Again, Wendtland had two alternative ways to challenge the
Department’s proposed assessment by arguing that he was not an Arizona
resident. He could have (1) filed a timely administrative protest or (2) paid
the taxes in full and filed a refund claim. See A.R.S. § 42-1251(A), (D). By the
time the Department moved for summary judgment in tax court,
Wendtland’s opportunity to argue he was not a resident had passed.
Therefore, the evidence attached to his Motion for New Trial could not have
changed the court’s summary judgment ruling because it was not
determinative of the Department’s claims under § 42-1251(A) and (D).




2 As the Department points out, Wendtland could have sought additional
time to respond to the Department’s motion for summary judgment under
Arizona Rule of Civil Procedure 56(d). See Wells Fargo Credit Corp. v. Smith,
166 Ariz. 489, 493 (App. 1990) (“Where parties have had an ample
opportunity to request a continuance until discovery is completed but fail
to make such a request, summary judgment will not be reversed on the
grounds that it was granted prematurely.”).



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                    STATE/ADOR v. WENDTLAND
                        Decision of the Court

¶16         The tax court did not abuse its discretion in denying
Wendtland’s Motion for New Trial. We affirm its ruling.

                              CONCLUSION

¶17          For the foregoing reasons, we affirm the tax court’s decision.
We award costs to the Department upon compliance with Arizona Rule of
Civil Appellate Procedure 21.




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




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