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Garcia v. Arizona State Department of Revenue11/12/1993
KLEINSCHMIDT, Judge
These consolidated appeals concern attempts by Taxpayers to recover an overpayment of taxes for 1987 on four contiguous parcels of land in Pima County. The Taxpayers' appeal in Pima County Superior Court Cause No. 246360 challenges the superior court's dismissal of their 1987 property tax appeal because of their failure to serve the defendant, Pima County. Their appeal in Arizona Tax Court Cause No. TX 90-00031 challenges the tax court's refusal to accept jurisdiction of their subsequent special action seeking a refund of the same 1987 property taxes pursuant to Ariz. Rev. Stat. Ann. ("A.R.S.") section 11-506, the statute which permits refunds for a tax paid under an erroneous assessment.
In October of 1991, we issued our Opinion affirming the judgments of the Superior Court of Pima County and of the Arizona Tax Court in this case. In that part of the decision in which we addressed the refusal of the tax court to take jurisdiction of the special action, we rejected the Taxpayers' argument that there had been an erroneous assessment within the meaning of A.R.S. section 11-506. Our decision turned on an amendment to that statute which became law in 1991, after the Taxpayers had begun their action for a refund.
After we filed our Opinion, the Taxpayers filed a Motion for Reconsideration. We ordered additional briefing on the subject of the retroactive application of the amendment to A.R.S. section 11-506. We heard oral argument on the Motion for Reconsideration, and we requested supplemental briefing on the issue of the retroactivity of the statute. Following the supplemental briefing, we again heard oral argument, and the Motion for Reconsideration was taken under advisement. We now grant the Motion for Reconsideration and vacate our Opinion filed on October 22, 1991. We affirm the judgment of the superior court in Pima County Cause No. 246360 and reverse the judgment of the tax court in Cause No. TX 90-00031.
FACTS AND PROCEDURAL HISTORY
For several years before 1986, the Taxpayers' real property was used for agriculture and was valued as such for tax purposes. In 1987, however, although the property was still used for agriculture, the Pima County Assessor valued it as non-agricultural property, which increased the amount of the tax for that year.
The Taxpayers filed a timely tax appeal in the Superior Court of Pima County pursuant to A.R.S. sections 42-177 and 42-246, challenging the valuation of their property for 1987. Although both the Arizona Department of Revenue and Pima County were named as defendants as required by A.R.S. section 42-177(C), the record in the Pima County action contains no affidavit of service of process as required by A.R.S. section 42-177(D).
The Department of Revenue, which had been served with process, moved to dismiss the tax appeal. It argued that the superior court lacked subject-matter jurisdiction because, (1) the Taxpayers failed to serve Pima County as required by the statute, and (2) the Taxpayers failed to pay the full amount of the second installment of the 1987 tax bill before it became delinquent on May 1, 1988. The Department further contended that the action had abated pursuant to Rule 6(f), Arizona Rules of Civil Procedure, because the Taxpayers had failed to serve Pima County within one year of the filing of the complaint.
In August of 1989, the Pima County Superior Court granted the Motion to Dismiss "for failure to join and serve an indispensable party." The Taxpayers appealed th
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