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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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. 
STATE/ADOR v. BOSCH

Decision of the Court

3

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.
STATE/ADOR v. BOSCH

Decision of the Court

4

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 
STATE/ADOR v. BOSCH

Decision of the Court

5

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).

 

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)).