# FILED

Au gust 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ MALL OF MEMPHIS ASSOCIATES,

Petitioner-Appellee, Shelby Chancery No. 106118-3 Vs. C.A. No. 02A01-9609-CH-00214 TENNESSEE STATE B OARD OF EQUALIZATION AND RITA C. CLARK, Assessor of Property for Shelby County,

Responde nts-Appe llants.

______________________ _____________________________________________________ _ FROM THE SHE

LBY COUNTY CHANCERY COURT THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR Clare Orman Shields, Harry J. Skefos, Ron W. Mcafee, Michael A. Brady; Martin, T ate, Mor row & Mar ston, P.C., o f Memphis For Appellee Ronald Lee Gilman, Steven C. Bramer; Farris, M athews, Gilman, Br anan & He

llen, P.L. C. of Memph

is For Appellant, Rita C. Clark Charles W. Burson, Attorney General and Reporter Christine Lapps, Assistant Attorney General For Tennessee State Board of Equalization

REVERSED AND REM ANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE HOLLY KIRBY L ILLARD, JU DGE This appeal i nvolves a

constituti onal cha

llenge by the Mall of Memphis Associates (the Mall) to an increase in its property value by the Assessor of Property f or Shelby County,1 In 1989, Michael Hooks was the Assessor in Shelby County. At the time the

petition was filed, Harold Sterling was the Assessor. Pursuant to T.R.A.P. 19(c), Rita Clark was substituted as a defendant when she became the Assessor.

2 The adjacent property included an office building and was worth approximately $9 million. Oak Court Mall was therefore sold for approximately $60 million.

3 The 1980 county-wide reappraisal did not include some commerc ial land and rural acreage. These properties w ere reappraised in 1982.

4 In this opin

ion, we wi ll refer

to enclos ed malls a s “shoppin g malls” a nd strip ma

lls as “shopping centers.”

5 The Assessor has an April deadline to correct an error retroactively, but in 1989, the Assessor believe d incorr

ectly tha t the dea dline wasAugust. 2 Tennessee (the Assessor). The respondents, Tennessee State Boar d of Equalization (the Board) and Rita C. Clark, 1 the Assessor, appeal the judgment of the chancery c ourt voiding an increa se in the property assessment for the petitioner, the Mall. The chanc ery court held that the Board’s reappraisal of the Mal l’ s property violated the Mall’s Fourteenth Amendment rights of equal protection under the United States Constitution. In April 19 89, Oak Court Mall and some adjacent property were purc hased for $69.4 million. 2 Following the sale, the Shelby County Board of Equalization (SCBOE) reduced the appraised value of Oak Court

Mall from

$14.4 millio n to $8.5 mill ion. In May 1989, upon learning of the reduction through an article in The Commercial Appeal , the Assessor appointed

a tas k force

to study the manner in which shopping malls had been valued during the 1980 county-wide reappr

aisal, the most rece

nt reapp raisal. 3 The Assessor co ncluded that an error existed in the bas e renta

l rates a nd gross rent multipliers used to appraise shopping malls in the 1980 county-wide reappraisal. The As sessor a

dmitted tha

t there w ere mor

e than 24, 000 parc els of co mmercia l an d industrial property on the tax rolls of Shelby C ounty in 1989 and estimated that there were approximately200 shopping malls and shopping centers in Shelby County in 1989. 4 Other types of commerc ial and in dustrial p roperty , includin g shopping center s, were

apprais ed the sa

me way

as shopping malls in the 1980 county-wide reappr a isal. However, the Assessor did not investiga te the possib ility of similar errors in the other types of properties. Initially, the Assessor intended to re view and

adjust the

assessme nts of both

shopping ma

lls and sho

pping cen ters, however, the Assessor was unable to allocate staff time before what the Assessor perceived a s the deadline. 53 After the inputs for base rent were changed, the Assessor

increased the appraised value for twelve shopping malls and fifteenanchor s tores in Shelby Count y on August 31, 1989. The Assessor increased the Mall’s appraised value from $15,249,100.00 to $41,217,000.00. The Mall contested the actions of t he Assessor before the SCBOE, but the SCBOE upheld the increased valuation. The Mall appealed to the Board pursuant to T.C.A. § 67-5-1412 (1994). On September 24, 1993, the Mall filed a motion for summary judgment asserting that the Assessor was not statutorily authorized to revalue the property in a nonre appraisal year and that the revalua

tion in this case was a “spot reappraisal” in violation of Article I I, Section 28 of the T ennessee Constitution and the Equal Protection Clause of the Fourteenth Amendment o f the United States Constitution. The Board denied the Mall’s motion for summary judgment because the Board believed that the Asses sor had th

e statutor y authority to adjust pr

operty values in nonreap praisal y ears, that the Assessor had not violat e d the requirements of equality and uniformity in Article II, Section 28 of the Tennessee Constitution, and that the Asses sor had not violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. An evidentiary hearing was held by the Board before an

administrative judge on October 21, 1994. The administrative judge found no basis for overturning the assessment change. The Mall appealed to the Board’s Assessment Appeals Commission, which affirmed the decision of the administrative judge. On June 29 , 1995, the Appeals Commission held that the reappraisal didnot violate the Tennessee Constitution’s mandate of “equality and uniformity” and that there

was no proof of arbitrary action by the Assessor and no proof of an equ al protection violation under the Fourteen th Amendme

nt. On July 31, 1995, the Mall filed a petition in the Chancery Court of Shelby County for review of the App eals Commi ssion’s decision pursuant to T.C.A. § 67-5-1511 (1994). The petition requested a stay of the administrative proceedings and a finding that the Assessor subjectedthe Mall to

an unlaw ful “spot

reappr aisal” o f its prope

rty in viola

tion of the Fourteen th Amendmen

t. On August 3 0, 1995, th e Assesso r filed a n answer to the petition denying that a stay was necessary and that the Mall was entitled to any re lief. The chancery court

held hearings on January 12, 1996 and February 21, 1996. On March 18, 1996, the chancery court issued a decre e finding that the Assessor initially intended to review6 The dec ree wa s made fin al pursua nt to Tenn. R. Civ. P. 54. 02 by orde r enter ed July 1, 1997. 4 and adjust

the assessments of both shopping malls and shopping centers in Shelby County, but that the Ass essor actually reviewed and adjusted only the assessments on shopping malls and their anchor s tores. 6 The cha

ncery c ourt held

that the Assessor had the statutory authority under T.C.A. § 67-5-1603(a) (1994) to adjust an assessment in a nonreappr aisal year and stated, “Such adjustmen

ts need not be made ac

ross an e ntire co nstitutiona

l class, b ut must

be applied in a nondiscrimina tory manner.” The cha ncery c ourt voide d the Mall’ s increa sed asse ssment on th e basis that the Assessor had unlawfu l ly discriminated against the Mall in violation of the Mall’s Fourteen th Amendment rights under the United States Constitution because the court could find no legitima

te distinc tion between shopping malls and shopping c enters. The Assessor and the Board appeal the judgment of

the chancery court and present two issues for our review: 1) whether the cha ncery court

erred by applying the wrong legal standard in an equa

l protec tion claim , and 2) w hether t he chancery co

urt erred in determining that there is no substantive difference between a shopping mall and a shopping center. The Mall, the appellee i n this appeal, presents three issues: 1) whether the Assessor a nd the Board hav e

overcom e the presumption of correctness given to the findings by the chancer y court; 2) whether the Assessor

and the Board are estopped from arguing that the chancery court er red in using the wrong legal standard; and 3) whether the chancery co

urt’s rul ing is susta

inable on other gr ounds. We will first examine the Mall’s second issue as to whether the Assessor and the Board

are estopped from arguing that the chancery cou rt used the w rong lega

l standar d. The Ma

ll argues that the Assessor and the Board are estopped beca use they expressly agreed with the chancellor as to the controlling factual question. In a colloqu

y with the parties’ attorneys, the chancellor asked, “ [If] the Court finds that there is a substantive similarity betwee n these tw o [shoppin g malls and shopping centers], then what is your pos ition with r

egard to the equa lity and un

iformity? ” Counsel

f or the Ass ess or responded, “If Your Hon or finds th at there is no ratio nal basis for the a ssessors to distingui sh between shopping malls on one hand and shopping centers on the other, then I think that you have to find that this was a spot reappraisal.” Counsel for the Board als o made simi lar rema rks. The chancery court proceede d to find that there was not a substantial difference

between5

shopping malls and sh opping ce nters an d, therefore, th at it was a spot rea ppraisa l. The Mall claims that T.R.A.P. 36(a) estops the Board and the Assessor’s argument about the wrong le gal test. T.R.A.P. 3 6(a) provides in pertinent part, “Nothing in this rule shall be construed as requiring relief be granted to a party re sponsible for an error or who failed to take wha tever action was reasonably available to prevent or nullify the ha rmful effect of an error.” The Mall argues that the Board and the Assessor failed to take any action to correct the chancellor’s framing of the issue. We disagree. First, the Board and the Assessor brought the proper legal standard to the cha ncellor ’s attent

ion during

both open

ing and cl osing rem arks. Second, the chancellor asked the parties’ counse ls’ position concer nin g “equality and uniformity.” Equality and uniformity are requirements of Article II, Section 28 of the Tennessee Constitution, notthe Equal Protection Clause of the Fourteenth Amendment. The Board and the Assessor claim tha t the cha ncellor used the w

rong lega l standar d in an equ al p rotectio n claim

un der the Fourteenth Amendment, not in an equa

lity claim u

nder the Tenness ee Consti tution

. Therefore, we must

examine the Board and the Assessor’s first issue: whether the chancery court erred b y using the

wrong le gal stand ard in an equal pr otection claim. The Board and the Assessor argu e that the chancellor erred in finding a constitutional violation based sol ely on his perception of no substantial difference between a shopping mall and

a shopping center because the chance llor was required to find intentional discrimination before finding a constitutional violation. The rule is “well-established” that “mere errors of judgment do not suppor

t a claim o f discrim

ination, b ut that the

re must be something more, --something which, in effe ct, amoun

ts to an inte

ntional violati on of the essential principle of practical uniformity.” Sioux City Bridge Co. v. Dakota County, Nebraska , 260 U.S. 441, 447, 43 S. Ct. 190, 67 L. Ed. 340 (1923). In another colloquy with the Ass ess or’s attorney, the chancellor addressed the Assessor’ s issues: MR. GILMAN: Okay, I’ll stop there, Your Honor. Let’s go to point two then that the asses sor had only one motive. It wasn’t improper. It

was a good faith, nondiscriminatory intent to correct the error. . . . THE COURT: Let me save yo u some time. You don’t needto argue that one either because, fr ankly, even though they talk about, through a blow-up of the Commercial Appeal article and the chewing out of anemployee , that in and of itself doesn’t show bad motive.6 It just shows that people are upset and wondering what’s going on. And in the absence of something more concrete, more smoking gunnish, so to speak, the Court is not going to allow the presumption of bad faith to occur when the pr esu mption in the law is good fait

h absent someone carrying a substantial burden of proof to s how bad f

aith. So I’ m not conc erned a bout that. However, the chancellor

concluded, “Yes, I do find that it is a discrimination that violates the equal pr

otection of [the] Fourteen

th Ame ndment o f the Unit ed States Constitution .” It is implicit in his state

ment that t

he chancellor found intentional discrimination with no rational basis for the dispar ate treatment. We will presume that the chance llor used the correct legal standard from his statement that “it is a discrimination.” We perceive that the real issue in this case is the Mall’s first issue: whether the Assessor and the Board have overcome the presumption of corr ectness given to the findi ng s by the chancery court. Since this case

was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the chancery court. Unless the evidence preponderates aga inst the findings, we mus t affirm, absent error of law. T.R.A.P. 13(d). When determining the merits of equal protection challenges, Tennessee courts have followed the analytical framework developed by the United Stat es Sup reme Court and have utilized three standards of scrutiny, depending upon the right asserted. Tennessee Small Sch. Sys. v. McWherter , 851 S.W.2d 139, 153 (Tenn. 1993). Equal protection analysis requires strict scrutiny of state action only whenthe state action interferes with the exercise of a “ fundamental right” (e.g., right to vote, right of privacy), or operates to the peculiar

disadvantage of a “suspect class” (e.g., alienage or race). State v. Tester , 879 S.W.2 d 823, 828 (Tenn. 199 4). Beca use neither a fundam

ental r ight nor a suspect class is present in this case, the proper standard of scrutiny is the “rational basis” test. In Doe v. Norris , 751 S.W.2d 834 (Tenn. 1988), the Tennessee Supreme Court discussed the “ra tional ba sis” test:

The concept of equal protection espoused b y the federal and our state constitutions guarantees that “all persons s imilarly circumstanced

shall be treated alike.” Conversely, things which are differe

nt i n fact or opinion are not required by either constitution to be treated the s ame. “ The initia l discret ion to determine what is ‘different’ and what is ‘the same’ resides in the7 legislature of the States,” and legislatu res are given con siderab le latitude in determining what groups are different and what groups are the sam e. In most instances the judicial inquiry into the legislative choice is limited to whether the classifications have a reasona ble rela tionship to a

legitimate

state inte rest. 751 S.W.2d at

841 (citations omitted). Although the present case does not involve a legislative choice, the proper t est is whe ther the Assessor’s actions have a reasona ble relationship to a legitimate state interest. The determinative issue is whether the f acts sho w some re asonable basis for the disparate state action. Tennesse e Small Sch. Sy s. , 851 S.W.2d at 153. The chancery co urt determined that the Assessor did not have a “legitimate basis” for making a distinction between shopping malls and shopping centers. However, implicit in t his ruling was a showing of disparate state action, which is a necessary e lement of a claim of violation of

equal protection rights. Tennessee Dept. of Human Services v. Hinton , 660 S.W.2d 506, 510 (Ten

n. App. 19 83). The

element t hat the ta xpayer m ust always prove is that he or she has been a victim of “intentional and arbitrary discrimination whether oc casion ed by expr ess terms of a statute or by its improper execu tion through duly constituted agents.” Southland Mall, Inc. v. Garner , 455 F.2d 887, 8 89 (6th Cir. 1972) (quoting Sunday Lake Iron Co. v. Township of W

akefiel d , 247 U.S. 350, 352, 38 S. Ct. 495, 62 L. Ed. 1154 (1918)). The purp ose of the

Equal Pro tection Cl ause of t he Fourte enth

Amendmen

t is to secure every person w ithin the st a te’ s jurisdiction against intentional and arbitrary discrimination. Sioux City Bridge Co. , 260 U.S. at 445. Unless the taxpayer can showintentional and arbitrary discrimination, the state does not have to meet the “rational basis” test. Th e burden of establishing intentional discrimina tio n rests upon the taxpayer challenging the official action. Southland Mall , 455 F.2d at 889. In Southland Mall , t he Six th Circuit discussed discrimination in a taxpayer’s equal protect ion claim: While

taxpayers have nor

mally prevailed only when they were able to demonstrate a systematic pattern of discrimination, such a system atic pattern does not appear to be an essential element of the cl aim. Thus clear proof that a tax was d iscrimina

torily aimed at a single taxpayer has been held t o support a n equal pr

otection claim. It is obvious, however that proof of intentional discrimination is likely to be difficult where the taxpayer cannot show a systematic pattern of discrimination or direct evidence of impr oper intention. The court is then asked to infer improp e r motive from isolated actions of an assessin g board or other tax7 The Assessor tried to change the value of the Mall’s prope rty for 1988 and 1989, but the increase was not allowed because the change was not timely. 8 officia ls. Understa

ndably suc

h effor ts have r arely su cceeded in the fede ral co urts, since there is a natural reluctance to infe r official misconduct from ambiguous circumstances alone. Southland Mall , 455 F.2d at 889-90 (citations omitted). In this case, th

e Assesso r claime d that the

decision to reapp raise only the shopping malls

was an allocation of

staff and resources problem and that there was not an improper motive, and the chance

llor foun d that the

Assessor did not hav e an impr

oper moti ve. We b elieve th at this finding is c orrect . The Asse ssor was a cting to c orrect

an erro r, not to imp

roperly discrimin ate against th e Mall. The Mall argues that

the chancery court properly infer red that the Assessor

intentiona

lly discriminated against

the Mall because of a memorandum written by Richard Ward, the Director of Valuation Standards and Computer Assisted Mass Appraisal at the Assessor’s office . In a memorandum

dated July 11, 1989, Ward noted to the Assessor, “It is dee med by R. W ard unwi se to proceed with this effort until all malls, shopping center s, and strip shopping can be handled together (for 1990). The distinction between ‘mall,’ ‘shopping center,’ or a ny ot her intensive retail location is at best indistinct and at worst entirely arbitrary.” Howe ver, the A ssessor presented a letter dated

May 31, 1989 from the Assessor to the SCBOE that stated, “As the new Assessor, I am desiro

us of cor recting all erro rs to assu re equit y in taxat ion. This should

not be

seen as an attempt to penalize undervalued properties or to update appraisals to current marke t value, but rather as a correction to a se nsible value for the base year of 1980.” We do not believe that the Assessor’s actions, even in light of Ward ’s memora ndum, show an improper motive or intentional discri minatio n. It may have been “unwise” for the Assessor to proceed, but the Assessor ’s action s were n othing mor e than a p ossible e

rror in judgment. Relief cannot be predicated upon mere e rrors of judgment committed by tax officia ls. Southland Mall , 455 F.2d at 889. We also believe that the Mall has not shown a “systematic pattern” of d iscrimination

. The only tax-year at issue is 1990. The Mall was not taxe d out of proportion with other members of its cla ss in any year before or after 1990. 7 In 1991, the Assessor conducted a new

c ounty-w ide reappraisal that equalized the taxes on eve ry member of the commercial and9

industrial class. Finally, the Mall has not proven that the increased assessment was a tax aimed at a single taxpayer. The Assessor increased the appraisals of eleven

other malls in addition to the anchor stores. The Assessor believed that the “subclass” of shopping malls was a

proper place to start the correction of a possible error and wa s not acting to single out the Mall. The Mall cl aims that the increased assessment is a “spot reappra isal” because the Assessor reappr aised twe lve shopping mall s and thei r fifteen anchor stores, but did not reappr aiseor investigate the entire commercial and industrial class. Basicall y, the Mall is arguing that the Assessor cannot constitutionally make any changes to a member of a c la ss witho ut c hanging or investigating every member of the class in the same yea r. We do not believe that the constitutional requirem ents of the Fourteenth Amendment were intended to force the Assessor, acting with limited resources and staff, to so tighten his or her opera tions. The Mall relies on Allegheny Pittsburgh Coal Co. v. County Commiss ion of Webster County, West Virginia , 488 U.S. 336, 109 S. Ct. 633, 102 L. Ed. 2d 688 (1989). In Allegheny Pittsburgh , the Supreme Court stated,

The Webster County tax assessor val ued petiti oners’ r eal prop erty on the basis of its rec ent purchase pri ce, but ma de only mino r modifications in the assessments of lan d which had not been recent ly sold. This practice resulted in gross di sparitie s in the assessed value of genera lly compa rable pr operty, a nd we hold

th at it denied petitioners the equal protection of the laws guaranteed to them by the Fourteenth Amendment. 488 U.S. at 338, 109 S. Ct. at 635. The Mall argues that the Assessor’s action in this case was

a conscious and arbitrary decision that resu lted in the Mall being assessed at a much higher value than similarly s ituated p

roperty in the same

class. Th e Mall believes tha

t this case demands the

sameresult the United States Supreme Court reached in Allegheny Pit tsburgh

. We disagree because the fac ts of Allegheny Pittsburgh are substantially different from the facts in this case. In Alleghen

y Pittsburgh , the Supreme Court stated the important

facts tha t “[p]e titioners ’ propert y has been assessed at roughly 8 to 35 times more than compara ble neighboring property, and these discrepancies have continued for more than 10 years with little change.” Id. at 344, 109 S. Ct. at 638. The Court went on to conclude , “The r elative u nderval uation of compara ble propert y in Webster County over time therefore denies pe titioners the equal protection of the law.” Id . at 346, 109 S. Ct. at 639 (emphasis added).10 In this case, the inequality suffered by the Mall occurr

ed only during the 1990 tax year. The Asses sor was in the process of correcting an er ror and delayed the investigation of the possibility

of errors in other properties by only one year. In Allegheny Pittsburgh , the Supre me Courtmade a

distinguish

ing statem

ent about the fac ts in that c ase: “But the present action is not

an example

of trans i tional delay in a djustment o f assess ed value resulting in inequa

lities in

assessme nts of comparable property.” Id . at 344, 1 09 S. Ct. at 638. We b elieve th at the fa cts in the case before us present such an e xample of a “transitional delay.” In Allegheny Pittsburgh , the Supreme Court stated, The use of

a general adjustment as a transitional substitute for an individual reappr

aisal viol ate s no constitutional command. As long as general adjustments are accura te enough over a short period of time

to equalize the differences in proportion between the assessments of a class of pr operty holders, the Equal Pr ot ection Clause is satisfied. Just as that Clause tolerates occasional errors of state law or mistakes in jud gmen t when valuing propert

y for tax purposes, it does not require immediate general adj ustment on the basis of the latest market developm ents. In each case, the constitutional requirement is the seasona ble attainment of a rough equality in tax tre atm ent of similarly situated property owners. Id. at 343, 109 S. Ct. at 638 (citations omitted). The Equal Protection Clause protects the individual from state action that selects him or her out for discriminatory treatment by subjecting him or her to taxes not imposed on others of the same class. Hil

lsbor ough Township v

. Cromwell , 326 U.S. 620, 623, 66 S. Ct. 445, 448, 90 L. Ed. 358 (1 946). The right is the right to equal treatment. Id. The taxpayer cannot complain if equality is achieved by increasing the same taxes of othe r members of the class to the level of his or her own. Id. In this case, the Assessor achieved equality within one year of the Mall’s incr eased assessment

by increasing the same taxes of other me mbers of the comme

rcial and industria

l class in the 1991 county-wide reappraisal. In 1989, the Assessor was acting to correct a past inequity. The Assessor

was not trying to reappraise the Mall’s property to the 1990 fair market value. We cannot find that the Mall was unfairly discriminated agai nst o r singled out in violation of the Equal Protection Clause of the Fourteenth Amendment. The evidence preponde rates against the chance ry court ’s finding s that the A ssessor d iscrimina ted against the Ma

ll. Because we findthat there was no inte ntional dis criminat

ion, the st ate is not r

equired to11

meet the ratio nal basis test. Thus, the difference between a shopping mall and a shopping center is irrelevant. The Board and the Assessor’s second issue is pre termitted. The Mall’s third issue for review is whether the chancery court’s ruling is sustainable on other grounds. The Mall argues that the 1989 increased assessment violated Article II, Section 28 of the Tennessee Constitution, which mandates equality and uniformit y in taxation throu ghout the state: The ratio of a ssessment to value of property in each class or

subclass shall be equal and u niform thr

oughout the

State , the va lue and definition of property in each class or subclas s to b e ascertained

in such manner as the Legislature shall direct. Each respective taxing au

thority sha

ll a pply the same tax

rate to a ll property within its jurisdiction. Tenn. C onst. art. II, § 28. The Tennessee Constitution creates three c lasses of property and further classifies real property. See id . The Constitution states, “Real Property shall be classifiedinto four

(4) subc lassific ations an d assess ed as follows . . . (b) Industrial and Commercial Property, to be assessed at forty (40%) perc ent of its value.” Id

. All property in the industrial and commercial subclass must be treated the same, a nd the Mall a rg ues that the Assessor’s actions, both in timing and effect, violate the requirement of equality and uniformity. The equal ity and uniformity requirement of Article II, Section 28 applies across the classes and subclasses created by the Constitution. Marion County v. State Bd. of Equalization , 710 S.W.2d 521, 523 (Tenn. App. 1986). The primary constitutional mandates governing property taxation in Tennessee are that all property shall be taxed, according to its value, and that taxes shall be e qual and uni form. Metropolitan Gov’t of Nashville v. Hillsboro Land Co. , 4 36 S.W.2 d 850, 855 (Tenn. 1968). The Court continued,

Undoubte dly these fu

ndamenta l principles of taxation are intended to apply to

the time at which suc

h taxes a re asse ssed, so that the prope

rty taxe d shall

be so taxed at this value at the time at which the tax is imposed; and also the equality and unifo rmity of taxation require d, are e quality a

nd unifor mity wit h taxes on property of like character imposed at or a bout the same time. Id. (quoting State v. Butler , 79 Tenn. 410, 413 (1883)). We agree with the Mall that the t iming of re apprais als m

u st be equa

l and unif

orm. However, it is clear

from the r

ecord th at the Ass essor did not reapprais e the Mall’ s proper ty to 1989 or 199 0 fair ma

rket val ues. Inst ead, the Assessor corrected a pas t error u sing the f air8 Because the Mall was constructed in 1983, the Mall’s assessed value in 1983 was equaliz ed back

to the 1980

county-wide rea

ppraisa l. 12 market v alue fr

om the 1980

county-wide rea

ppraisa l. 8 The Mall cites a decision by anadministrative judge from a hearing before the Board in support of its position, In re Barnes , Davidson County (Tenn. Bd. of Equalization O ct. 16 , 1987). The admin

istrative judge fou

nd that the

assessor in that c ase rea

ppraise d the land

in question to reflect the increase in land values since the las t county-wide reappraisal, and the judge voided the increase. Id . at 1-2. The administrative judge stated, “It should be stressed that this case involves reappraisal of a small are a of the count y . . . in ord

er to re flect the

increa se in land values since 1984. This does not mean that the a ssessor c annot cor rect er rors pur suant to T.C.A. § 67-5-50 9 or in cr ease appraisals in accordance with the periodic reappraisal requirements of T.C.A. § 67-5-1601.” Id. at 2. We believe that the Assesso r’s acti ons do not violate the equality and unifo rmity mand ate of the Tennessee Constitution. We may ha ve reached a different result if the Assessor reappr aised the Mall’s va

lue using t

he 1990 f air market value. Howeve

r, the Ass essor me

rely adjusted the Mall’s previous assessment by correcting an er ror and equalize d the Mall b ack to the 1980 county-wide reappraisal. The Mall’s assessment wa s calculated using the same

time and base year as the rest of the commer cial and industrial property. The Mall also argues that the As sesso r lacked the statutory authority to reappraise the Mall’s propert

y in a nonr

eappra isal yea r. The Ma

ll cla i ms that the Assessor’s powers are

severe ly limited in

nonreappraisal years. The Mall points out that the error c orrection statute, T.C.A. § 67 -5-509 (199 4), does n ot allow the Assesso r to chan ge an ass essment e xcept tho se witherrors that do not involve the discretion or judgment of the Assessor. T.C.A. § 67-5-509(f) (1994) pr ovides, Errors or omission s corre ctable u nder this section in

clude onl y obvious clerical mistakes, involving no judgmentof or discretion by the assessor, apparent from the face of the official tax and assessment

record s, such asthe name or addre ss of an owner, the location or physical description of property, misplacement of a decimal poin t or mathematical miscalculation, errors of classification, and duplicate assessment. Erro rs or omissions correctable

hereund er do not include c lerical mis t akes in tax reports or schedules filed by a taxpayer with the a ssessor. We agree with the Mall that the A ssessor d id not have

th e authority to change the13

assessment

pursuant to T.C.A. § 67-5-509. The error in the formula in this cas e was more than a clerical error or a mathema tical miscalculation. The Assessor claims that

she is aut horized to change

assessme nts pursuant to T.C.A. § 67-5-1603(a)(2), which provides: “The local assessor of prop erty and county boards of equalization may adjust ind ividual a ssessmen

ts in accordance with other facts and infor mation relevant to the proper assessment of the property.” T.C.A. § 67-5-1603(a)(2) (1994) . We believe that this section allows the Assessor to make changes to individual assessments in nonrea ppraisa l years. T.C.A. § 67-5-1603(a)(3) (1994) provides, “No such changed

assessments for individual taxpayers shall res ult in inequ ality or de stroy the uniformit

y of assessment intended to be achieved by the reappraisal progra m.” We believe that the Assessor’s adjustment to the Mall’s assessment does not result in an inequity or destroy uniformity because the Assessor equalized the Ma ll’s assessment

using the 1980 coun

ty-wide r eappra isal. Accordingly, the order of the chancery cour t is reversed. This case

is remanded to the Board for whatever proceedings may be necessary. Costs of this appeal are assessed aga inst the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ DAVID R.FARMER,

JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE