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

LOMA MARIPOSA II, L.P., an Arizona limited partnership, 

Plaintiff/Appellee,

v.

SANTA CRUZ COUNTY a political subdivision of the State

of Arizona, Defendant/Appellant.

No. 1 CA-TX 15-0007

Appeal from the Arizona Tax Court

No. TX2013-000605

The Honorable Christopher T. Whitten, Judge

AFFIRMED

COUNSEL

Buchalter Nemer PC, Scottsdale

By Douglas S. John, Shaun T. Kuter

Counsel for Plaintiff/Appellee

Helm Livesay & Worthington Ltd., Tempe

By Roberta S. Livesay

Counsel for Defendant/Appellant
LOMA MARIPOSA v. SANTA CRUZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Kenton D. Jones and Judge Randall M. Howe joined.

K E S S L E R, Judge:

¶1 Santa Cruz County (“County”) appeals from the tax court’s 

grant of summary judgment in favor of Loma Mariposa II, L.P. 

(“Taxpayer”). We agree with the tax court that the County consented to the 

error alleged in Taxpayer’s Notice of Claim (“Claim”). Accordingly, we 

affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Taxpayer owns an apartment complex in Nogales, Arizona

(“Property”), that is operated pursuant to the Federal Low Income Housing 

Tax Credit (“LIHTC”) program.

1 See 26 U.S.C. § 42 (West 2013).2 Pursuant 

to that program, the Property is subject to legal restrictions set forth in a 

recorded Land Use Restriction Agreement (“LURA”).3 

¶3 Taxpayer challenged its property taxes for tax years 2009 

through 2012 by filing a Claim with the County Assessor (“Assessor”)

pursuant to Arizona Revised Statutes (“A.R.S.”) section 42-16254 (Supp. 

 

1 The LIHTC program “aims to provide an incentive for the 

construction and rehabilitation of affordable housing by allowing owners 

of qualified rental properties to claim tax credits annually over a ten-year 

period.” Sagit Leviner, Affordable Housing and the Role of the Low Income 

Housing Tax Credit Program: A Contemporary Assessment, 57 Tax Law 869, 870 

(2004).

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 

3 In this case, the LURA requires that eighty units be occupied by 

households whose income is sixty percent or less of the area median gross 

income and that rents conform to “low income” standards established by 

the federal and state government. These restrictions last for thirty years 

and run with the Property. 
LOMA MARIPOSA v. SANTA CRUZ

Decision of the Court

3

2013). Taxpayer’s Claim asserted the Assessor had committed an “error in 

failing to account for the legal restrictions on the Subject Property.” 

¶4 Pursuant to A.R.S. § 42-16254(C), the Assessor had sixty days 

to provide a written response to the Claim, either consenting to or disputing 

the error. See A.R.S. § 42-16254(C). Although the Assessor prepared a 

written response, he mistakenly mailed it to the wrong address, and

Taxpayer did not receive the response until after the sixty-day period had 

expired. 

¶5 Taxpayer then sent a written demand to the Assessor and the 

County Board of Supervisors pointing out that “[a] failure to file a written 

response within sixty days constitutes consent to the error” and asking 

them to direct the County Treasurer to correct the tax roll pursuant to A.R.S. 

§ 42-16254(C). See id. The tax roll was not corrected.

¶6 After exhausting its administrative remedies, Taxpayer filed 

a complaint in tax court. The parties filed cross-motions for summary 

judgment. The tax court granted Taxpayer’s motion and denied the 

County’s motion, concluding that “A.R.S. § 42-16254(C) is self-executing: 

the failure to file a written response to the taxpayer within sixty days 

constitutes consent to the error.” 

¶7 After entry of final judgment, the County timely appealed.

We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2016) and 12-

170(C) (2016).

4

DISCUSSION

¶8 This Court reviews the tax court’s grant of summary 

judgment de novo. See Walgreen Ariz. Drug Co. v. Ariz. Dep’t of Revenue, 209 

Ariz. 71, 72, ¶ 6 (App. 2004). If the material facts are undisputed, we must 

determine “whether the tax court correctly applied the substantive law to 

 

4 Taxpayer challenged the valuation of its property for tax year 2013, 

not as an error correction but rather pursuant to A.R.S. § 42-16201(B) (2006). 

See Loma Mariposa II, L.P. v. Santa Cruz County, TX 2012-000433 (filed Sept. 

19, 2012). After a bench trial, the tax court entered judgment in favor of the 

County, and Taxpayer appealed. See id.; Loma Mariposa II LP v. Stanta Cruz 

County, CA-TX 16-0002 (appeal docketed April 28, 2016). Upon stipulation 

of the parties, this Court stayed that appeal pending a final decision in this 

case. See Order Staying Appeal at 1, Loma Mariposa II LP v. Stanta Cruz 

County, CA-TX 16-0002 (entered July 14, 2016). 
LOMA MARIPOSA v. SANTA CRUZ

Decision of the Court

4

those facts.” Id. In so doing, we review issues of statutory interpretation

de novo. See id.

¶9 Taxpayer argues the Assessor failed to timely respond to the 

Claim and therefore consented to the error. The tax court agreed. However, 

the County argues Taxpayer: (1) waived any defect in the County’s 

administration of A.R.S. § 42-16254(C), and (2) did not suffer any 

deprivation of due process rights. The relevant statute, A.R.S. § 42-

16254(C), provides:

Within sixty days after receiving a notice of claim, the tax 

officer may file a written response to the taxpayer to either 

consent to or dispute the error and to state the grounds for 

disputing the error. A failure to file a written response within 

sixty days constitutes consent to the error, and the board of 

supervisors shall direct the county treasurer to correct the tax 

roll on the taxpayer’s written demand supported by proof of 

the date of the notice of claim and the tax officer’s failure to 

timely dispute the error.

A.R.S. § 42-16254(C) (emphasis added). This Court “will not venture 

outside the language of an unambiguous statute to explore whether it might 

be construed to provide something different from the meaning that clearly 

appears on its face.” Paging Network of Ariz., Inc. v. Ariz. Dep’t of Revenue, 

193 Ariz. 96, 98, ¶ 13 (App. 1998). 

¶10 An administrative pleading mailed within the statutory time 

period to the wrong address is not timely filed. See Salt River Project Agric. 

Improvement & Power Dist. v. Ariz. Dep’t of Econ. Sec. (“SRP”), 156 Ariz. 155, 

157 (App. 1988). In SRP, plaintiff mistakenly mailed a petition for review 

to the wrong address. Id. at 155–56. This Court held that “even though 

[plaintiff] acted within the fifteen-day appeal period, its actions did not 

constitute a timely filing.” Id. at 156; see also Stapert v. Ariz. Bd. of Psychologist 

Exam’rs, 210 Ariz. 177, 182-83, ¶ 25 (App. 2005) (holding that a plaintiff’s 

motion for reconsideration, delivered by messenger service to the wrong 

agency, was untimely). 

¶11 Like the plaintiff in SRP, the Assessor here admittedly mailed 

his response to the wrong address. Thus, although the response was mailed 

within the statutory time period, it was not timely filed. Accordingly, 
LOMA MARIPOSA v. SANTA CRUZ

Decision of the Court

5

pursuant to the plain language of § 42-16254, the Assessor consented to the 

error alleged in Taxpayer’s Claim.5

I. Waiver

¶12 The County argues that Taxpayer waived any defect in the 

County’s administration of A.R.S. § 42-16254(C) by appealing from the 

Assessor’s decision on its Claim to the County Board of Equalization. 

“Waiver is either the express, voluntary, intentional relinquishment of a 

known right or such conduct as warrants an inference of such an intentional 

relinquishment.” Am. Cont’l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 

55 (1980). 

¶13 Taxpayer’s actions do not indicate waiver. After receiving no 

response from the Assessor within the sixty-day statutory period, Taxpayer

sent a letter to the Assessor and the Board of Supervisors demanding they

direct the County Treasurer to correct the tax roll pursuant to A.R.S. § 42-

16254(C). See A.R.S. § 42-16254(C) (providing “the board of supervisors 

shall direct the county treasurer to correct the tax roll on the taxpayer’s 

written demand supported by proof of the date of the notice of claim and 

the tax officer’s failure to timely dispute the error.”) (emphasis added). 

However, after receiving the Assessor’s late response to its Claim, Taxpayer 

pursued review before the Board of Equalization and the tax court pursuant 

to A.R.S. § 42-16254(F)-(G), and expressly argued consent in both 

proceedings. Taxpayer’s actions in no way convey an express, voluntary, 

and intentional relinquishment of its right to challenge the County’s 

 

5 Courts apply filing deadlines strictly in tax cases. See Ringier Am. v. 

State Dep’t of Revenue, 184 Ariz. 250, 254 (App. 1995) (“We therefore hold 

that the tax court correctly held that [taxpayer’s] failure to timely pursue 

the appropriate appellate procedures required dismissal of its action.”); see 

also Pesqueira v. Pima Cty. Assessor, 133 Ariz. 255, 257 (App. 1982) (“The filing 

deadline . . . is a jurisdictional condition.”).
LOMA MARIPOSA v. SANTA CRUZ

Decision of the Court

6

administration of A.R.S. § 42-16254(C). Accordingly, the County’s waiver 

argument fails.6

II. Due Process

¶14 Next, the County argues the tax court erred “in failing to 

consider whether Plaintiff suffered any deprivation of due process rights.” 

It contends that “[w]hen the Assessor provided and [Taxpayer] received a 

second response to its [Claim], and [Taxpayer] attended the subsequent 

hearing, it obtained all the benefits of due process.” 

¶15 The fact that Taxpayer received a hearing before the Board of 

Equalization does not alter the legal conclusion that the County consented 

to the error by failing to file a timely written response to Taxpayer’s Claim

as required by the statute. Accordingly, the County’s due process 

argument fails.

III. Excusable Neglect

¶16 Finally, the County argues its mailing mistake “was purely 

one of excusable neglect.” Arizona, however, does not recognize a “goodcause exception” for administrative filings absent explicit statutory 

authority. See Stapert, 210 Ariz. at 180, ¶ 10. 

¶17 In Stapert, a messenger service delivered plaintiff’s motion for 

reconsideration to the wrong agency. See id. at 179, ¶ 3. The Arizona Board 

 

6 The County also cites to Hormel v. Maricopa County, 224 Ariz. 454, 

459, ¶¶ 21-22 (App. 2010). The County contends Hormel supports its 

argument that if an agreement was reached on the dispute, the County had 

an unconditional obligation to issue the refund and if it failed to do so, the 

appropriate remedy was for the taxpayer to take the matter to the Board to 

review the merits. The County claims that given that remedy, Taxpayer 

had the duty to prove its claim on the merits. We disagree. Hormel involved 

a meeting between the taxing authority and the taxpayer under A.R.S. § 42-

16254(D)-(F), which provides that when the taxing authority disputes the 

error, a meeting is held and the parties can agree to a full or partial 

resolution of the dispute. At that point, the taxpayer can file a petition with 

the board on any remaining dispute. A.R.S. § 42-16254(F). Here, the 

County’s consent occurred under § 42-16254(C), dealing with failure of the 

County to timely object to the claim. Moreover, the fact Taxpayer sought 

judicial relief while also asking the Board to determine whether there was 

a consent or to decide the merits of the claim does not mean that Taxpayer’s 

only remedy is to then prove the error itself rather than rely on consent. 
LOMA MARIPOSA v. SANTA CRUZ

Decision of the Court

7

of Psychologist Examiners refused the motion finding it was untimely filed. 

See id. at 180, ¶ 10. In upholding that decision, this Court noted it was 

“undisputed that Dr. Stapert’s motion for reconsideration was not filed 

with the Board within the time allowed by law” and concluded “[t]his court 

has specifically rejected the contention that a good-cause exception existed 

when there was no statutory authority for such an exception.” Id. at 180, 

¶¶ 11, 13 (citing SRP, 156 Ariz. at 157). Accordingly, the County’s argument 

that the Assessor’s failure to timely respond was the result of excusable 

neglect also fails. 

CONCLUSION

¶18 For the foregoing reasons, we affirm the decision of the tax 

court. In the exercise of our discretion, we grant Taxpayer’s request for an 

award of attorneys’ fees on appeal pursuant to A.R.S. § 12–348(B) (Supp. 

2013), subject to the limitation imposed by § 12–348(E)(5). Taxpayer is also 

entitled to costs on appeal upon compliance with Arizona Rule of Civil 

Appellate Procedure 21. See A.R.S. § 12-341 (2016); ARCAP 21.