CAAP-12-0000728, Wednesday, February 12, 2014, 10 a.m.

In the Matter of the Tax Appeal of KAHEAWA WIND POWER, LLC, Taxpayer-Appellant-Appellee/Cross-Appellant, vs. COUNTY OF MAUI, Appellee-Appellant/Cross-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Appellee-Appellant/Cross-Appellee County of Maui:

Richard B. Rost, Deputy Corporation Counsel

Attorneys for Taxpayer-Appellant-Appellee/Cross-Appellant Kaheawa Wind Power, LLC:

Ronald I. Heller, Brian W. Tilker, and Austin F. McCullough of Torkildson, Katz, Moore, Hetherington & Harris

COURT: Foley, Fujise, and Ginoza, JJ.

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Brief Description:

This appeal involves two issues related to real property tax assessments by the County of Maui (County) to Kaheawa Wind Power, LLC (Kaheawa Wind Power). First, in granting partial summary judgment for Kaheawa Wind Power and denying the County’s related motion, the Tax Appeal Court ruled that turbines and towers located on the subject property used to produce electricity from wind energy do not come within the definition of “real property” in the Maui County Code (MCC) for purposes of real property tax. The County appeals this ruling, arguing that the wind turbines and towers are taxable under a proper interpretation of the MCC. Kaheawa Wind Power argues in response that the Tax Appeal Court’s ruling was correct on this issue.

Second, as related to other parts of the subject property, the Tax Appeal Court granted partial summary judgment for the County as to whether real property tax assessments issued in 2010 retroactive for tax years 2007 through 2009 were valid. The Tax Appeals Court ruled that there is no express or implied time limitation on the County’s ability to make real property tax assessments and therefore the County was entitled to make retroactive tax assessments on the subject property. Kaheawa Wind Power appeals this ruling, arguing that the MCC imposes a duty on the County to add omitted property to assessment lists upon discovery of their omission and that there is a genuine issue of material fact when the County made the pertinent discovery in this case. The County contends that the Tax Appeal Court’s ruling on this issue was correct and that Kaheawa Wind Power raises a new argument on appeal that was not made to the Tax Appeal Court.