Phoenix Cement v. Yavapai ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
PHOENIX CEMENT COMPANY, Plaintiff/Appellant,
v.
YAVAPAI COUNTY, a political subdivision of the State of Arizona,
Defendant/Appellee.
No. 1 CA-TX 14-0010
FILED 10-22-2015
Appeal from the Arizona Tax Court
No. TX2011-000018 and TX2011-000751
(Consolidated)
The Honorable Dean M. Fink, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Lewis Roca Rothgerber, LLP, Phoenix and Tucson
By Susan M. Freeman, Rob Charles, Justin James Henderson
Counsel for Plaintiff/Appellant
Helm, Livesay, & Worthington, LTD, Tempe
By Roberta S. Livesay
Counsel for Defendant/Appellee
Cavanagh Law Firm, Phoenix
By James G. Busby, Jr.
Counsel for Amicus Curiae Arizona Rock Products Association
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Lawrence F. Winthrop joined.
G O U L D, Judge:
¶1 Phoenix Cement Company appeals the tax court’s decision
adopting the Yavapai County Assessor’s valuation of its property for tax
years 2010 and 2011. For the following reasons, we affirm in part, vacate in
part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Phoenix Cement manufactures cement at its plant in
Clarkdale, Arizona. The Assessor values the machinery and equipment at
the plant as personal property. Phoenix Cement timely challenged the
Assessor’s full cash values of its property for tax years 2010 and 2011. After
exhausting its administrative remedies, Phoenix Cement appealed the
value of its property to tax court.1
¶3 The court held a four-day bench trial. Phoenix Cement
supported its proposed reduction in full cash value through the testimony
of its expert appraiser, Dennis Neilson. Neilson testified that he valued the
property using the cost approach to value, which is the same method the
County used. Unlike the County, however, Neilson concluded there was
significant economic obsolescence, resulting from the recession’s impact on
the cement industry, which reduced the value of the property.
1 For tax year 2010, the Assessor assigned a full cash value of
$117,159,730 to Phoenix Cement’s property. Phoenix Cement filed an
administrative appeal and the County Board of Equalization reduced the
value to $111,320,743. Phoenix Cement further appealed the Board’s
decision to tax court. For tax year 2011, the Assessor valued the property
at $118,415,787. Phoenix Cement again filed an administrative appeal, but
this time the Board affirmed the Assessor’s valuation. Thereafter, Phoenix
Cement appealed to tax court, and the two matters were consolidated.
2
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
¶4 After making specific findings of fact and conclusions of law,
the tax court upheld the County’s determinations of full cash value and
rejected Phoenix Cement’s proposed reduction in full cash value based on
economic obsolescence. The tax court also permitted the County to add to
its valuation certain “escaped property” that Phoenix Cement had allegedly
not reported, and assessed penalties and interest relating to the escaped
property.2
¶5 Thereafter, the tax court entered judgment in favor of the
County, and this appeal followed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1)(2015).3
DISCUSSION
¶6 In reviewing a judgment entered after a bench trial, we view
the evidence in the light most favorable to upholding the trial court’s
decision. Double AA Builders, Ltd. v. Grand State Const. L.L.C., 210 Ariz. 503,
506, ¶ 9 (App. 2005). We will not set aside the tax court’s findings of fact
unless they are clearly erroneous or not supported by substantial evidence.
Nordstrom, Inc. v. Maricopa Cnty., 207 Ariz. 553, 558, ¶ 18 (App. 2004). We
review pure questions of law and mixed questions of law and fact de novo.
Eurofresh, Inc. v. Graham Cnty., 218 Ariz. 382, 385, ¶ 14 (App. 2007).
¶7 Taxpayers in Arizona have a duty to self-report personal
property to the county assessor. See A.R.S. § 42-15053. Using the
information reported by the taxpayer, the assessor values the property by
determining the “acquisition cost less any appropriate depreciation as
prescribed by tables adopted by the [Arizona Department of Revenue].”
A.R.S. § 42-13054(A). Pursuant to A.R.S. § 42-13054(A), the taxable value of
personal property determined by the assessor “shall not exceed the market
value.” Id.
¶8 If a taxpayer believes the assessor’s valuation exceeds market
value, the taxpayer has a right to appeal. See A.R.S. §§ 42-16201, -16203, -
16207, -19051, -19052. However, in challenging a taxing authority’s
2 After adding the value of the escaped property, the County
calculated the full cash value of Phoenix Cement’s property to be
$152,541,721 for tax year 2010 and $148,842,874 for tax year 2011.
3 Absent material revisions after the relevant dates, we cite the current
version of a statute unless otherwise indicated.
3
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
valuation of property, the taxpayer has the burden of proving that “the
assessment is excessive” and must present evidence “from which the trial
court can determine the full cash value of the property in question.” Graham
Cnty. v. Graham Cnty. Elec. Co-op., Inc., 109 Ariz. 468, 469-70 (1973).
¶9 In this case, Phoenix Cement reported the cost of its personal
property for tax years 2010 and 2011 to the Assessor who, in turn,
determined the taxable value by calculating acquisition cost less
depreciation. At trial and on appeal, Phoenix Cement challenges the
Assessor’s valuations, asserting that his valuations for 2010 and 2011
exceeded market value. Specifically, Phoenix Cement argues the tax court
erred in:
1. Refusing to adopt Phoenix Cement’s proposed value reduction
based on economic obsolescence;
2. Permitting the County’s tax auditor to testify as an expert;
3. Permitting the County to add “escaped property” to the pending
tax court appeal; and
4. Assessing penalties and interest.
I. Economic Obsolescence
¶10 As the tax court properly noted, “[b]y far, the greatest
difference between the valuations of the two parties’ experts is the existence
or non-existence of economic obsolescence.” Economic obsolescence is
defined as:
[T]he loss in value or usefulness of a property caused by
factors external to the asset. These factors include increased
cost of raw materials, labor, or utilities . . . ; reduced demand
for the product; increased competition, environmental or
other regulations; or similar factors.
American Society of Appraisers, Valuing Machinery and Equipment: The
Fundamentals of Appraising Machinery and Technical Assets 76 (3d ed. 2011)4
(emphasis added). This court similarly has defined economic obsolescence
as “a loss in value caused by forces external to the property and outside the
control of the property owner.” Ariz. Dep’t. of Revenue v. Questar S. Trails
4 Both parties rely on this source as an authoritative treatise.
4
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
Pipeline Co., 215 Ariz. 577, 580, ¶ 12 (App. 2007) (quoting Magna Inv. & Dev.
Corp. v. Pima Cnty., 128 Ariz. 291, 293 (App. 1981)). Additionally, in
Eurofresh, Inc. v. Graham Cnty., 218 Ariz. 382 (App. 2007), we defined the
term as “a temporary or permanent impairment of the utility or salability
of an improvement or property due to negative influences outside the
property.”5 218 Ariz. at 386, ¶ 22 (quoting Appraisal Institute, The Appraisal
of Real Estate 363 (12th ed. 2001)).
¶11 Here, the County’s valuation of the property did not account
for economic obsolescence beyond what may arguably be encompassed in
the ADOR depreciation tables. Conversely, Phoenix Cement’s expert
opined that the economic recession, which resulted in decreased demand
for cement, caused significant economic obsolescence that decreased the
value of the plant. Specifically, in appraising the property, Neilson applied
a 50% “economic obsolescence penalty” to the property’s value for tax year
2010, reducing the value of the property by half, and a 60% penalty for tax
year 2011, reducing the value of the property by more than half.6
¶12 This court addressed the application of economic
obsolescence to property valuation in Eurofresh. We held that for a taxpayer
to establish the existence of economic obsolescence, the taxpayer must offer
probative evidence of (1) the cause of the obsolescence, (2) the quantity of
the obsolescence, and (3) that the asserted cause of the obsolescence actually
affects the subject property. Id. at 390, ¶ 37. In developing this test, we
relied upon a decision from an Indiana court explaining that a taxpayer
must establish “a connection to an actual loss in property value,” which in
cases involving commercial property “usually means a decrease in the
property’s income generating ability.” Id. at 388, ¶ 29 (citing Wal Mart
Stores, Inc. v. Wayne Twp. Assessor, 825 N.E.2d 485, 488 (Ind. T.C. 2005)).
¶13 At trial, Phoenix Cement attempted to satisfy the Eurofresh
test by offering evidence of economic obsolescence. Specifically, Neilson
testified that the plant’s economic obsolescence was caused by “the
5 In their joint pretrial statement, the parties agreed to adopt the
definition of economic obsolescence set forth in Eurofresh.
6 As a result, Neilson opined the full cash value of Phoenix Cement’s
property for tax year 2010 was $86 million without incentives, and $75
million with incentives. Neilson’s valuation of the property for tax year
2011 was $68 million without incentives, and $57.5 million with incentives.
5
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
significant loss in demand for cement” during the recession. In support of
this opinion, Nielson produced evidence showing the impact of the
recession on the cement industry. Thereafter, Neilson attempted to
quantify the obsolescence through application of an inutility penalty
formula.7 Finally, Neilson offered evidence that the recession, the cause of
the economic obsolescence, affected production at the Phoenix Cement
plant.
¶14 After considering Phoenix Cement’s evidence, the tax court
concluded that “Plaintiff’s expert’s opinion of alleged external obsolescence
is not persuasive.” The tax court found that “[t]o the extent Plaintiff’s
expert considered the economic obsolescence to be temporary, he failed to
properly account for the temporary nature in reaching his conclusion.”
¶15 We defer to the tax court’s findings as long as the record
supports them. In re the Gen. Adjudication of All Rights to Use Water in the
Gila River Sys. & Source, 198 Ariz. 330, 337, ¶ 15 (2000); see also Ariz. R. Civ.
P. 52(a) (“Findings of fact, whether based on oral or documentary evidence,
shall not be set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of witnesses.”).
Additionally, the weight accorded expert testimony is within the sole
province of the trial court. Magna Inv. & Dev. Corp. v. Pima Cnty., 128 Ariz.
291, 294 (App. 1981).
¶16 Our review of the record confirms the tax court did not abuse
its discretion in determining that Neilson’s testimony was not persuasive
in establishing the amount of obsolescence proposed. See Flores v. Cooper
Tire & Rubber Co., 218 Ariz. 52, 57, ¶ 20 (App. 2008) (holding that this court
reviews questions hinging on the resolution of conflicting facts or witness
credibility for an abuse of discretion). The tax court’s finding is supported
7 In Valuing Machinery and Equipment, the inutility penalty is
described as follows:
Whenever the operating level of a plant or an asset is
significantly less than its rated or design capability, and the
condition is expected to exist for some time, the asset is less
valuable than it would otherwise be. Such a penalty for
inutility can be a measure of the loss in value for this form of
economic obsolescence.
American Society of Appraisers, Valuing Machinery and Equipment: The
Fundamentals of Appraising Machinery and Technical Assets 97 (2d ed. 2005).
6
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
by the testimony of Phoenix Cement’s vice president of finance, who
testified that the company would not have sold the plant on the valuation
dates for Neilson’s proposed values because the company anticipated that
“the growth is going to come back and that [the] plant has a value that’s
much higher than the current day value that we’re trying to obtain.” The
vice president’s observation suggests that Neilson’s proposed values were
lower than market value and supports the tax court’s conclusion that
Neilson did not account for the temporary nature of the obsolescence in
determining the value of the plant.
¶17 The tax court also found that “Plaintiff’s expert’s choice of
2005 as the year in which to begin his economic obsolescence analysis was
not supported by the evidence, and skewed the economic obsolescence
findings significantly in the taxpayer’s favor.” Again, the record supports
the tax court’s finding. The evidence shows that 2005 was “the very best
year of actual production” for the plant.
¶18 Finally, the record shows Neilson did not explain how the
decrease in cement production affected the cement plant’s income
generating ability; indeed, the record contains no such evidence.
¶19 In sum, the record supports the tax court’s finding that
Phoenix Cement failed to satisfy its burden of proving that the County’s
assessment was “excessive” based on economic obsolescence. Graham
Cnty., 109 Ariz. at 469-70. Accordingly, we affirm the tax court’s conclusion
that Phoenix Cement is not entitled to a reduction in full cash value for tax
years 2010 and 2011.
¶20 However, we note that to the extent the tax court’s ruling
could be interpreted to mean that Arizona law does not support the
application of temporary economic obsolescence, we vacate that portion of
the ruling. We confirm our decision in Eurofresh stating that taxpayers have
the right to establish both temporary and permanent economic
obsolescence by satisfying Eurofresh’s three-part test. Eurofresh, 218 Ariz. at
386, ¶ 22.
II. Admission of Boone’s Expert Testimony
¶21 The County’s expert, Kirk Boone, testified at trial regarding
the “escaped property” that Phoenix Cement allegedly failed to report. He
also testified in support of the County’s calculation of full cash value, which
7
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
involved the application of depreciation tables, prepared by the Arizona
Department of Revenue, to the acquisition cost of the property.8
¶22 Phoenix Cement filed a motion in limine seeking to exclude
Boone’s testimony and reports on the grounds Boone lacked “the
knowledge, skill, experience, training, or education necessary to testify as
to the market value of the cement plant” and because he “failed to rely on
accepted standard appraisal methods and techniques.” The tax court
denied the motion stating: “The Court is not persuaded that Mr. Boone
failed to apply accepted standard appraisal methods. How well he applied
them goes to the weight which the Court as factfinder will place on his
opinions.” On appeal, Phoenix Cement asserts that the tax court “erred by
permitting the County’s auditor to testify as a valuation expert.”9
¶23 “The question of whether any witness, whether or not
designated ‘expert’ is competent to testify on a given subject rests in the
sound discretion of the trial court, and its exercise will not be reviewed but
for abuse.” Bd. of Regents of the Univ. & State Colleges of Ariz. v. Cannon, 86
Ariz. 176, 178 (1959) (affirming the trial court’s decision to permit testimony
by a lay person in a condemnation case); see also Maricopa Cnty. v. Barkley,
168 Ariz. 234, 239 (App. 1990) (“The overarching rule which guides our
review of the trial court’s decision of the qualifications of the witnesses as
experts is that the determination of this matter is left to the discretion of the
trial court.”).
¶24 The tax court reached the following conclusion regarding
Boone’s testimony: “He’s worked for the government doing this sort of
work for many years. From a different perspective obviously. But I believe
that this is within his wheelhouse as an expert and I am going to allow it.”
¶25 We find no abuse of discretion in the tax court’s decision to
permit Boone to testify in support of the County’s calculation of full cash
value. Boone is not an accredited appraiser and he did not perform a
8 Although Boone testified regarding economic obsolescence, there is
no indication in the tax court’s lengthy ruling that it gave any weight to
Boone’s testimony. Rather, the court relied upon its finding that:
“Plaintiff’s expert’s opinion of alleged external obsolescence is not
persuasive.”
9 At trial, counsel for Phoenix Cement renewed its objection to Boone’s
testimony.
8
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
market value appraisal of Phoenix Cement’s property. He does, however,
have eighteen years of experience working with the North Carolina
Department of Revenue, during which time he oversaw the “valuation and
taxation of property by taxing units throughout the state.” Accordingly, we
affirm the tax court’s decision to permit Boone to testify.
III. Escaped Property
¶26 After Phoenix Cement’s administrative appeal was concluded
and the tax court appeal was pending, the County conducted an audit of
Phoenix Cement’s personal property and discovered alleged “escaped
property” that Phoenix Cement did not report.10 Prior to trial, Phoenix
Cement filed a motion in limine asking the court to prohibit the County
from introducing evidence of this escaped property. The tax court denied
Phoenix Cement’s motion. Over Phoenix Cement’s objection, the County’s
expert testified regarding the value of the escaped property at trial.11
¶27 On appeal, Phoenix Cement argues that the County failed to
follow the proper statutory procedure for assessing escaped property. We
review issues of statutory interpretation de novo. Walgreen Ariz. Drug Co.
v. Ariz. Dep’t of Revenue, 209 Ariz. 71, 72, ¶ 6 (App. 2004).
¶28 The county has the authority to audit a taxpayer’s personal
property report. See A.R.S. § 42-15053(F)(2). “On completing an audit or
on discovering property that has not been reported, any property that was
found to have escaped taxation is liable for the amount of taxes due
determined under chapter 16, article 6 of this title.” Id. This statute directs
the County to determine the value of escaped property by following the
procedure set forth in the error correction statutes found in Article 6, which
prescribe a statutory method for correcting property tax errors, defined to
include “misreporting or failing to report property”. A.R.S. § 42-
10 Boone asserted there were eight items of escaped property for tax
year 2010 and seven items for tax year 2011.
11 A significant unreported asset was the blending and sweetening silo,
which Appellant added at a cost of approximately $33 million. Phoenix
Cement’s installation of this silo was substantially complete as of December
2009, but Phoenix Cement did not report it on its 2010 personal property
return. Phoenix Cement brought this omission to the County’s attention in
a supplemental disclosure statement two months prior to trial.
9
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
16251(3)(d). Pursuant to the error correction statutes, if the Assessor detects
an error in the reporting of property, she must send the taxpayer a notice of
proposed correction. A.R.S. § 42-16252(A). Following receipt of the notice,
a taxpayer has the opportunity to resolve the alleged error through an
administrative process. A.R.S. § 42-16252(C)-(F). Thereafter, either party
may appeal to the board of equalization and to court. A.R.S. § 42-16252(G),
(H).
¶29 “Arizona and other states have historically recognized the
importance of requiring strict adherence to taxation statutes.” See Braden v.
Yuma Cnty. Bd. of Supervisors, 161 Ariz. 199, 202 (App. 1989); see also Pima
Cnty. v. Cyprus-Pima Mining Co., 119 Ariz. 111, 113 (1978) (holding that the
County’s right to appeal a tax valuation “is statutory and the method
provided by the Legislature is exclusive.”). The County had the statutory
right to audit Phoenix Cement’s personal property report pursuant to § 42-
15053(F)(2). Upon discovery of the alleged escaped property, however, the
County should have followed the proper statutory procedure and sent a
notice of proposed correction to Phoenix Cement, thereby providing the
taxpayer with the opportunity to resolve the error administratively. It did
not. Instead, the County by-passed the statutory procedure and added the
issue concerning escaped property into Phoenix Cement’s pending tax
court appeal.
¶30 The tax court permitted the County to offer testimony
regarding the “escaped property and concluded that “[p]roperty not
reported by a taxpayer on the Business Property Form 82520 is subject [to]
this tax appeal under A.R.S. § 42-16255(B).” For the tax years at issue in this
case, § 42-16255 provided:
. . . If an administrative or judicial appeal is pending regarding
the subject property, the alleged error shall be adjudicated as
part of the administrative or judicial appeal for the affected
tax year.
A.R.S. § 42-16255(B) (2009). In 2014, the legislature enacted technical and
conforming amendments to the error correction statues, and § 42-16255(B)
as amended now provides:
If an administrative or judicial appeal is pending regarding
the subject property, any alleged error that was already the
subject of a notice of proposed correction under section 42-
16252 or a notice of claim under section 42-16254 shall be
adjudicated as part of the administrative or judicial appeal for
10
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
the affected tax year without requiring the parties to exhaust
their administrative appeal remedies under this article.
A.R.S. § 42-16255(B) (amended by S.B. 1352 (2d Reg. Sess. 2014)) (emphasis
added).
¶31 It is clear from the amended statute that the County must
initiate the error correction procedure before it can adjudicate an alleged
error as part of a pending judicial appeal. “An amendment which, in effect,
construes and clarifies a prior statute will be accepted as the legislative
declaration of the original act.” City of Mesa v. Killingsworth, 96 Ariz. 290,
297 (1964); see also Ariz. State Senate, Fact Sheet for S.B. 1352 (2d Reg. Sess.
2014) (explaining that the purpose of the 2014 amendments were to make
“various technical and conforming changes”). Although the amended
version of § 42-16255(B) does not apply to the case at hand, which involves
tax years 2010 and 2011, the amendment clarifies the legislature’s original
intent and persuades us that in order to adjudicate an alleged error as part
of a pending judicial appeal, the county must first initiate the error
correction procedure. See Police Pension Bd. v. Warren, 97 Ariz. 180, 187
(1965) (holding that although “subsequent legislation clarifying a statute is
not necessarily controlling on a court, it is strongly indicative of the
legislature’s original intent”).
¶32 Accordingly, we vacate that portion of the tax court’s
judgment determining that the County was entitled to include the escaped
property in the full cash value of Phoenix Cement’s property, with one
exception. Phoenix Cement admitted prior to trial that the valuation for tax
year 2010 should include the cost of “blending and sweetening” equipment
that came on-line in 2009, and Neilson prepared revised reports reflecting
this additional cost for 2010, as well as the impact of the addition on the
2011 valuation. At trial, Phoenix Cement’s counsel informed the court that
the parties had stipulated to the inclusion of the blending and sweetening
equipment for tax year 2010.
¶33 “If issues are tried without objection, it amounts to implied
consent and . . . the case will be treated as though the amendments were
made.” Gilliland v. Rodriquez, 77 Ariz. 163, 167 (1954); Starkovich v. Noye, 111
Ariz. 347, 349 (1974) (“It is also the rule that the admission of evidence
without objection will enlarge the pleadings and render it proper for the
trial court to treat the pleadings as though amended so as to conform to the
proof.”). The inclusion of the blending and sweetening equipment for tax
year 2010 was tried without objection. Accordingly, the taxable values of
Phoenix Cement’s property for tax years 2010 and 2011 shall be the values
11
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
determined by the County Board of Equalization adjusted for the addition
of the blending and sweetening equipment for tax year 2010. We remand
to the tax court for purposes of determining the appropriate 2010 and 2011
valuations.12 As to the remainder of the alleged “escaped property”, the
County must follow the proper statutory procedure.13
IV. Penalties and Interest
¶34 After determining the County was entitled to an increase in
the plant’s full cash values for tax years 2010 and 2011 based on the addition
of the escaped property, the tax court applied a ten percent penalty to the
value of the escaped property pursuant to A.R.S. § 42-15055(C).14 That
statutory penalty only applies, however, if a taxpayer fails to deliver a
personal property report as required by § 42-15052. A.R.S. § 42-15055(C).
Here, Phoenix Cement submitted a personal property report for both tax
years pursuant to A.R.S. § 42-15052. As a result, a penalty under § 42-
15055(C) is not warranted by the facts of this case. See Bonn & Jensen
Chartered v. Ariz. Dept. of Revenue, 177 Ariz. 170, 174 (Ariz. Tax Ct. 1993)
12 The addition of the blending and sweetening equipment to the
taxable value for tax year 2010 may have the effect of lowering the
property’s value for tax year 2011 as the blending and sweetening assets,
already included in the Assessor’s valuation for that year, would be valued
as if one year older.
13 The County’s list of “escaped property” included “[c]apitalized
interest booked for equipment expansion from 2002-2007.” Because we
determine that the County could not include the alleged escaped property
in the taxable value without following the proper statutory procedure, we
need not determine whether capitalized interest is a taxable cost for
property tax purposes. See Progressive Specialty Ins. Co. v. Farmers Ins. Co. of
Ariz., 143 Ariz. 547, 548 (App. 1985) (explaining that appellate courts should
not decide issues unless they are “required to do so in order to dispose of
the appeal”).
14 The penalties for tax years 2010 and 2011 were $3,536,566 and
$3,042,395, respectively.
12
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
(explaining that the penalty only applies “when the taxpayer fails to
prepare and deliver a list of property”).15
¶35 The tax court also assessed sixteen percent interest on the
taxes arising from the escaped property pursuant to A.R.S. § 42-18053. This
statute provides that “all taxes bear interest from the time of delinquency
at the rate of sixteen per cent per year simple until paid.” A.R.S. § 42-
18053(A). Interpreting the predecessor to this statute (A.R.S. § 42-342), our
supreme court held that “only after taxes listed on the tax rolls have become
delinquent can the taxpayer be charged 16% interest on delinquent
amounts.” Ariz. Dep’t of Revenue v. Trico Elec. Co-op., Inc., 151 Ariz. 544, 550
(1986). Here, the taxes arising from the escaped property were not listed on
the tax rolls prior to entry of the tax court’s judgment in this case.
Accordingly, those taxes were not delinquent, and the tax court’s
imposition of 16% interest was error. See Waddell ex rel. Ariz. Dep’t of
Revenue v. Mayo Found. for Med. Educ. & Research, 176 Ariz. 178, 180 (Ariz.
Tax Ct. 1993) (holding that “there are no ‘delinquent’ taxes until the rolls
are corrected to reflect this Court’s judgment and the Taxpayers fail to
timely pay those taxes”). We therefore vacate that portion of the tax court’s
judgment assessing penalties and interest against Phoenix Cement.
CONCLUSION
¶36 For the foregoing reasons, we affirm the portion of the tax
court’s judgment finding that Phoenix Cement is not entitled to a reduction
in the full cash value of its property for tax years 2010 and 2011 based on
economic obsolescence. We vacate the portion of the judgment finding the
County is entitled to an increase in the full cash value of the property to
account for the alleged escaped property with the exception of the blending
and sweetening equipment. On remand, the tax court should determine
the 2010 and 2011 taxable values of Phoenix Cement’s property by adjusting
the values determined by the County Board of Equalization to account for
the addition of the blending and sweetening equipment in tax year 2010.
15 On remand, once the error correction procedures have been
completed, the tax court may consider whether to assess a penalty against
the taxable value of the blending and sweetening equipment pursuant to
A.R.S. § 42-15053. That statute authorizes a ten percent penalty against
property that has escaped taxation. A.R.S. § 42-15053(F)(2) (“On
completing an audit or on discovering property that has not been reported,
any property that was found to have escaped taxation is liable for the
amount of taxes due . . . plus a penalty equal to ten per cent of that
amount.”).
13
PHOENIX CEMENT v. YAVAPAI
Decision of the Court
Finally, we also vacate that portion of the judgment assessing penalties and
interest.
:ama
14