{ "id": 4191928, "name": "CAVU CO., a Nebraska Corporation, Respondent-Appellant, v. DOMINGO MARTINEZ, Santa Fe County Assessor, Petitioner-Appellee", "name_abbreviation": "Cavu Co. v. Martinez", "decision_date": "2013-04-05", "docket_number": "No. 34,039; Docket No. 32,021", "first_page": "753", "last_page": "766", "citations": [ { "type": "official", "cite": "2013-NMCA-050" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "66 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848589 ], "weight": 6, "year": 1959, "pin_cites": [ { "page": "222" }, { "page": "751" }, { "page": "222-23" }, { "page": "751" }, { "page": "223" }, { "page": "751", "parenthetical": "stating that the protestants \"do not seriously protest their valuations nor claim that they are higher than the law allows, but . . . say that their assessments cannot be raised unless and until all other property in the county is similarly treated\"" } ], "opinion_index": 0, "case_paths": [ "/nm/66/0221-01" ] }, { "cite": "94 N.M. 237", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573160 ], "weight": 9, "year": 1980, "pin_cites": [ { "page": "240" }, { "page": "1122" }, { "page": "240" }, { "page": "1122" }, { "page": "238-39" }, { "page": "1120-21" }, { "page": "238" }, { "page": "240" }, { "page": "1122", "parenthetical": "stating that the taxpayer \"sought the improper remedy; she should have requested that the [cjounty be ordered to raise the valuation level of other property in the county to full market value\"" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0237-01" ] }, { "cite": "92 N.M. 609", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557123 ], "weight": 7, "year": 1978, "pin_cites": [ { "page": "612" }, { "page": "968" }, { "page": "970" }, { "page": "966-67" }, { "page": "969" }, { "page": "968", "parenthetical": "stating that \"singling out one or a few taxpayers for reappraisals for several years in succession while virtually all other owners of comparable properties do not undergo a single reappraisal in the same period is an inequality that is neither temporary nor constitutional\"" }, { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0609-01" ] }, { "cite": "2002-NMCA-067", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260717 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0412-01" ] }, { "cite": "53 N.M. 12", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580716 ], "weight": 6, "year": 1948, "pin_cites": [ { "page": "24" }, { "page": "353" }, { "page": "23-24" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nm/53/0012-01" ] }, { "cite": "83 N.M. 505", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335223 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "507" }, { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0505-01" ] }, { "cite": "2013-NMCA-029", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191802 ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0477-01" ] }, { "cite": "97 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555115 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "261" }, { "page": "70" }, { "page": "260-61" }, { "page": "69-70", "parenthetical": "holding that property purchased by a church for a new building was taxable in spite of the church's intent to build a new facility on it" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0260-01" ] }, { "cite": "93 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568655 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "45" }, { "page": "258" }, { "page": "44" }, { "page": "257", "parenthetical": "discussing history of use of the property without reference to a specific date or year" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0042-01" ] }, { "cite": "284 P.3d 1118", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190469 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 12, 18" }, { "page": "\u00b6 14" }, { "page": "\u00b6 14" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0319-01" ] }, { "cite": "1998-NMCA-050", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834155 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0049-01" ] }, { "cite": "92 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557047 ], "weight": 17, "year": 1978, "pin_cites": [ { "page": "547-48" }, { "page": "678-79" }, { "page": "548" }, { "page": "679", "parenthetical": "internal quotation marks omitted" }, { "page": "543" }, { "page": "674" }, { "page": "544-45" }, { "page": "675-76" }, { "page": "547-48" }, { "page": "678-79" }, { "page": "548" }, { "page": "679" }, { "page": "548" }, { "page": "679" }, { "page": "548, 551" }, { "page": "578, 682", "parenthetical": "\"Article VIII, [Section] 3 must be construed to free from taxation only property that is presently and actually in substantial use for educational purposes.\"" }, { "page": "679", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0541-01" ] }, { "cite": "106 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707088 ], "weight": 7, "year": 1987, "pin_cites": [ { "page": "181", "parenthetical": "stating that educational use need not be the exclusive use of the property for the exemption to apply" }, { "page": "1166", "parenthetical": "stating that educational use need not be the exclusive use of the property for the exemption to apply" }, { "page": "181" }, { "page": "1166" }, { "page": "181" }, { "page": "1166" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0179-01" ] }, { "cite": "83 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334437 ], "weight": 7, "year": 1972, "pin_cites": [ { "page": "447" }, { "page": "413" }, { "page": "446-47" }, { "page": "412-13" }, { "page": "446" }, { "page": "412" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0445-01" ] }, { "cite": "37 N.M. 178", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575362 ], "weight": 2, "year": 1933, "pin_cites": [ { "page": "185", "parenthetical": "\"[The exemption] invests citizens with constitutional rights, which administrative officers or Legislature may not impair, and which courts must protect.\"" }, { "page": "283", "parenthetical": "\"[The exemption] invests citizens with constitutional rights, which administrative officers or Legislature may not impair, and which courts must protect.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/37/0178-01" ] }, { "cite": "39 N.M. 135", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573431 ], "weight": 2, "year": 1935, "pin_cites": [ { "page": "142", "parenthetical": "\"It is the use of property, not the declared objects and purposes of its owner, which determines the right to exemption.\"" }, { "page": "211", "parenthetical": "\"It is the use of property, not the declared objects and purposes of its owner, which determines the right to exemption.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/39/0135-01" ] }, { "cite": "2003-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15549 ], "weight": 10, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 32" }, { "page": "\u00b6 46" }, { "page": "\u00b6 44" }, { "page": "\u00b6 47" }, { "page": "\u00b6 5" }, { "page": "\u00b6 40" }, { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0297-01" ] }, { "cite": "1998-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17109 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0405-01" ] }, { "cite": "2004-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427980 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 10" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0030-01" ] } ], "analysis": { "cardinality": 1302, "char_count": 38316, "ocr_confidence": 0.832, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3229599486302097 }, "sha256": "adb4b3c0bfa6148c0ce8edf0d9c02772e6cfbb6c0b6d76ff129e8ce234e4ee36", "simhash": "1:b702603ef2013771", "word_count": 6246 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "LINDA M. VANZI, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "CAVU CO., a Nebraska Corporation, Respondent-Appellant, v. DOMINGO MARTINEZ, Santa Fe County Assessor, Petitioner-Appellee." ], "opinions": [ { "text": "OPINION\nBustamante, Judge.\n{1} This case presents two issues. The first is whether a statute and regulation stating that an exemption from taxation is determined \u201cas of January 1\u201d requires the reviewing body to focus exclusively on use of the property on that day or permits examination of use prior to that date. The district court determined that because CAVU Co.\u2019s (Taxpayer) property was not in use on January 1, 2010, it was not eligible for exempt status for that year. Although the district court erred in its narrow interpretation of the applicable statutes and regulations, we nevertheless affirm its ruling that Taxpayer\u2019s property was not exempt for 2010.\n{2} The second concerns the proper remedy underNew Mexico\u2019s Constitutional provision requiring uniform taxation when similarly situated properties are disparately granted exemptions from taxation. The district court reversed the Santa Fe County Protest Board\u2019s (Protest Board) decision that Taxpayer was entitled to an exemption because another similarly used property was not taxed. We affirm the district court\u2019s conclusion that Taxpayer was not entitled to tax exempt status for 2010 based on non-uniform treatment.\nBACKGROUND\n{3} Taxpayer, a Nebraska corporation, owns the property at 7300 Old Santa Fe Trail in Santa Fe, New Mexico. The property was used as a school and determined to be exempt from property taxes through 2008. Between May 2008 and August 2010, Taxpayer sought an educational tenant for the property, but the property was not in active use, except for a few months during which it was used by an organization that taught people to train dogs. In the fall of 2010, the property was again used as an educational institution. It is undisputed that on January 1, 2010, the property was not in active use for educational purposes. In 2010, the Santa Fe County Assessor (Assessor) determined that the property was no longer exempt from ad valorem taxes and valued the. property at $6,689,750. Taxpayer protested this determination to the Protest Board.\n{4} The Protest B oard restored the exemption based on its conclusion that denial of an exemption to Taxpayer constituted \u201cnonuniform\u201d treatment in the assessment of taxes, contrary to Article XIII, Section 1 of the New Mexico Constitution. The Protest Board found that another property, the St. Francis School property, was not operating as a school on January 1, 2010, but was granted an exemption from taxation for that year. Finding that Taxpayer\u2019s property was \u201cin a very similar situation, with no actual educational use on January 1 [], but with active educational use starting in the fall semester[,]\u201d the Protest Board determined that exemption of the two properties was non-uniform. It concluded that the proper remedy was to designate Taxpayer\u2019s property exempt as well.\n{5} Although the Protest Board concluded that \u201cit would appear that this case might present one of the rare instances in which temporary non[-]use actually constitutes an exempt use of property in the unique circumstances[,]\u201d it did not decide the matter on that basis, stating, \u201c[g]iven our dispositive ruling on [Taxpayer\u2019s] uniformity argument, we do not make a formal decision on this basis.\u201d Assessor filed a petition for writ of certiorari with the district court. See Rule 1 - 075 NMRA (\u201cConstitutional review by district court of administrative decisions and orders.\u201d).\n{6} The district court reversed the Protest Board. It concluded that the Protest Board\u2019s decision was \u201cnot in accordance with law\u201d because Taxpayer did not \u201cdemonstrate that the Assessor\u2019s failure to tax a similarly used property . . . was the result of fraud or intentional discrimination by the Assessor\u201d and, therefore, \u201cthere is no constitutional basis to warrant the remedy of exempting [Taxpayer\u2019s] property from taxation.\u201d It found further that \u201c[NMSA 1978,] Section 7-38-7 [(1997)] clearly provide[s] that January 1 [] of each tax year is the point at which the status of property, in terms of qualifying for an exemption from taxation, is to be determined.\u201d Since the property was not being used as a school on January 1, 2010, the district court held that the property was not exempt for the 2010 tax year. Taxpayer appealed.\nDISCUSSION\n{7} Taxpayer makes five points which we consolidate into two major arguments. First, it argues that the district court\u2019s interpretation of Section 7-38-7 was contrary to Article VIII, Section 3 of the New Mexico Constitution, principles of statutory construction, and case law. Next, it argues that the district court erred in finding that there was no constitutional basis on which to determine that the property is exempt. We address these arguments in turn.\nA. The District Court Erred in Interpreting Section 7-38-7 Too Narrowly\n{8} Section 7-38-7 reads, in relevant part, \u201cAll property subject to valuation for property taxation purposes shall be valued as of January 1 of each tax year[.]\u201d In addition, 3.6.7.14 NMAC (4/30/2001) states:\nA. TAXABLE STATUS OF PROPERTY FIXED AS OF JANUARY 1 OF EACH YEAR: January 1 of each year is the date which determines the tax status of all property subject to valuation for property taxation purposes .... This status includes determination of whether the property is exempt from property taxation. Therefore, if property is not entitled to exemption from property taxation under the Property Tax Code [NMSA 1978, Sections 7-35-1 to -38-93 (1973, as amended through 2012)] on January 1 of the tax year, it is not exempted from taxation for that tax year. The sale or transfer of the property to a tax exempt owner at a later date during the tax year does not entitle the property to exemption for that tax year.\n{9} Taxpayer argues that the district court\u2019s reliance on the use of the property on a single day \u2014 January 1 \u2014 was a \u201cgross misinterpretation\u201d of the statute and that \u201cJanuary 1[] is the determination date of the property\u2019s tax status; it is not the classification date.\u201d Taxpayer argues further that the question of whether the property was used for educational purposes \u201cis to be decided on the basis of what educational use took place before the date of January 1.\u201d Finally, Taxpayer maintains that the district court\u2019s focus on the use of the property on a single day was contrary to Article VIII, Section 3 of the New Mexico Constitution, which provides that \u201call property used for educational or charitable purposes . . . shall be exempt from taxation.\u201d We agree that the district court erred in focusing only on a single day in its determination of classification of the property.\n{10} As a preliminary matter, we note again that the Protest B oard did not decide the issue of whether the property qualified for an exemption on the basis of its use for educational purposes. Thus, there was no final order on this basis from which Assessor could seek redress. Rather, Assessor argued in its statement of issues that the Protest Board \u201cact[ed] arbitrarily, capriciously[,] and not in accordance with law[] [when it] did not enter an order denying the protest and finding the property taxable\u201d in spite ofits finding thatthe property was not actively used for educational purposes on January 1, 2010. The district court apparently agreed that the Protest B oard erred by not denying the exemption based on this finding of fact.\n{11} We \u201creview a district court\u2019s decision in an administrative appeal under an administrative standard of review.\u201d Gallup Westside Dev., LLC v. City of Gallup, 2004-NMCA-010, \u00b6 10, 135 N.M. 30, 84 P.3d 78. In a case such as this one, where the district court reversed the Protest Board on one basis and ruled in favor of Assessor on a different, independent basis, \u201c[w]e conduct the same review of an administrative order as the district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal.\u201d Id. (internal quotation marks and citation omitted). The district court may reverse the Protest Board if it acted \u201coutside the scope of authority of the agency[,]\u201d Rule 1-075(R)(3), or if \u201c[the district court] determines that the administrative entity . . . acted fraudulently, arbitrarily, or capriciously; if the decision was not supported by substantial evidence in the whole record; or if the [Protest Board] did not act in accordance with the law.\u201d Gallup Westside Dev., LLC, 2004-NMCA-010, \u00b6 10; see NMSA 1978, \u00a7 39-3-1.1(D) (1999). Interpretation of a statute is a question of law which an appellate court reviews de novo. See Morgan Keegan Mortg. Co. v. Candelaria, 1998-NMCA-008, \u00b6 5, 124 N.M. 405, 951 P.2d 1066.\n{12} \u201cProperty is presumed to be subject to taxation.\u201d Georgia O'Keefe Museum v. Cnty. of Santa Fe, 2003-NMCA-003, \u00b6 32, 133 N.M. 297, 62 P.3d 754; 3.6.7.16(A) NMAC (4/30/2001). Article VIII, Section 3 of the New Mexico Constitution, however, provides that \u201call property used for educational or charitable purposes ... shall be exempt from taxation.\u201d Unlike several other exemptions in Article VIII, Section 3, which are based on the ownership of the property or whether the property is used for commercial or profit-generating purposes, the exemption at issue in this case hinges on whether the property is \u201cused for\u201d educational purposes. Albuquerque Lodge, No. 461, B. P. O. E., v. Tierney, 39 N.M. 135, 142, 42 P.2d 206, 211 (1935) (\u201cIt is the use of property, not the declared objects and purposes of its owner, which determines the right to exemption.\u201d). The taxpayer bears the burden of proof regarding an exemption. Georgia O\u2019Keefe Museum, 2003-NMCA-003, \u00b6 32.\n{13} The issue before us is whether the property was \u201cused for\u201d educational purposes at the times relevant to determination of its tax status for 2010. Assessor does not dispute the Protest Board\u2019s findings of fact that the property was used by a school until May 2008, that the property was used by an organization that taught people to train dogs between February and May 2010, and that educational use resumed again in August 2010. Nor does Assessor appear to challenge Taxpayer\u2019s assertion that the property has never been used for purposes other than educational. Rather, Assessor urges us to affirm the district court\u2019s decision based on the fact that the property was not in active use for educational purposes on January 1, 2010. Taxpayer argues that this approach is unreasonable because it fails to consider use of the property prior to that date. We agree with Taxpayer.\n{14} Before reaching the merits, we dispose of Assessor\u2019s somewhat oblique assertion that the district court did not rely on the use of the property on January 1 alone. The district court\u2019s order states:\nOn January 1, 2010 [Taxpayer\u2019s] property while previously used for a school and developed for a school was not in use as a school on that date',\n... Therefore, [Taxpayer\u2019s] property did not qualify on [sic] for an exemption from taxation based on educational use even though the property was later used as a school during the calendar year[.]\n(Emphasis added.) In addition, at the hearing, Assessor argued that Section 7-38-7 requires that \u201ca property must be in use as an educational facility on January 1 oftheyearin order to qualify for an exemption from taxation.\u201d In an oral ruling, the district court agreed, stating:\nIn my view, Section 7-38-7 clearly speaks in terms of January [1] being the status date for valuation purposes. And on January 1 of the year in question, the old school had vacated the property and the school was not then being currently and actively used as an educational facility.\nWe conclude from this record that the district court\u2019s decision rested on the use of the property on January 1 without consideration of its use prior to that date.\n{15} Turning now to the merits, we conclude that the district court erred in focusing on January 1 because such a narrow interpretation of Section 7-38-7 is contrary to Article VIII, Section 3 of the New Mexico Constitution, is not required by the language of the Property Tax Code, and is inconsistent with case law. The educational use exemption is constitutional in origin. N.M. Const. art. VIII, \u00a7 3; Temple Lodge No. 6, A. F. & A. M., v. Tierney, 37 N.M. 178, 185, 20 P.2d 280, 283 (1933) (\u201c[The exemption] invests citizens with constitutional rights, which administrative officers or Legislature may not impair, and which courts must protect.\u201d). When this is the case, \u201c[t]he rule in New Mexico is that of reasonable construction, without favor or prejudice to either the taxpayer or the State, to the end that the probable intent of [Article VIII, Section 3] is effectuated and the public interests to be subserved thereby are furthered.\u201d Benevolent & Protective Order of Elks, Lodge No. 461 v. N.M. Prop. Appraisal Dep\u2019t (BPOE, Lodge No. 461), 83 N.M. 445, 447, 493 P.2d 411, 413 (1972). The purpose of the exemption \u201cis to encourage private citizens to engage in educational pursuits from which the public derives a substantial benefit.\u201d Georgia O\u2019Keefe Museum, 2003-NMCA-003, \u00b6 46. When interpreting Article VIII, Section 3 of the New Mexico Constitution and relevant statutes, our task is to avoid \u201cfritter[ing] away [the exemption] by a construction so strict as to be unreasonable or harsh . . . [while also] not . . . enlarging the exemption so] as to create rights which the Constitution makers did not contemplate.\u201d Georgia O \u2019Keefe Museum, 2003-NMCA-003, \u00b6 44 (internal quotation marks and citation omitted).\n{16} Applying the district court\u2019s narrow construction of Section 7-38-7 and Regulation 3.6.7.14 of the Administrative Code has the potential to \u201cfritter away\u201d the educational use exemption granted in our Constitution because it could undermine substantially a property owner\u2019s ability to demonstrate educational use. Cf. George O\u2019Keefe Museum, 2003-NMCA-003, \u00b6 47. The district court\u2019s interpretation does not take into consideration the real possibilities for temporary vacancies or breaks in use that have little impact on beneficial services provided to the public. Cf. Grand Lodge of Ancient & Accepted Masons of N.M. v. Taxation & Revenue Dep\u2019t, 106 N.M. 179, 181, 740 P.2d 1163, 1166 (Ct. App. 1987) (stating that educational use need not be the exclusive use of the property for the exemption to apply). For instance, many, if not most, schools' are not in \u201cactive use\u201d on January 1, a national holiday. In addition, a property could be actively used for educational purposes by one tenant with a temporary break in that activity before another tenant takes occupancy. We can envision other like scenarios in which a property not in active use on a given day still provides services of \u201csubstantial public benefit\u201d sufficient to satisfy the educational use exemption. See NRA Special Contribution Fund v. Bd. of Cnty. Comm'rs, 92 N.M. 541, 547-48, 591 P.2d 672, 678-79 (Ct. App. 1978) (\u201cIf a portion of plaintiffs land is primarily and substantially devoted to educational purposes, notwithstanding that the period of its instruction is very short, ... it is educational within the scope of the term as employed in [Article VIII, Section 3 of the New Mexico Constitution].\u201d (internal quotation marks and citation omitted)).\n{17} In addition, Section 7-38-7 itself, analyzed in the context of the rest of the Property Tax Code and accompanying regulations, does not require this narrow focus. Quantum Corp. v. Taxation & Revenue Dep\u2019t, 1998-NMCA-050, \u00b6 8, 125 N.M. 49, 956 P.2d 848 (\u201c[T]he statutes in question must be read in connection with other statutes concerning the same subject matter[.]\u201d). Section 7-38-7 states that \u201c[a]ll property . . . shall be valued as of January 1 of each tax year[.]\u201d In the context of valuations, it is obvious that Assessor and/or Protest Board are not limited by this language to focusing on a single day in valuing a property because other relevant statutes and regulations require use of comparable sales data in a specific prior period to determine market value. See \u00a7 7-36-15(B) (stating that \u201cthe value of property for property taxation purposes shall be its market value as determined by application of the sales of comparable property, income or cost methods of valuation or any combination of these methods\u201d); AMREP Sw. Inc. v. Sandoval Cnty. Assessor, 2012-NMCA-082, \u00b6\u00b6 12, 18, 284 P.3d 1118 (holding that the ProtestBoard was not required to include post-lwawaxy 1 data in its valuation of a property and affirming the Protest Board\u2019s \u201cconsistent interpretation of Section 7-38-7 and the administrative code provisions \u2018to mean that properties must be valued using only data available on January 1 of the tax year.\u2019 \u201d) (emphasis added); 3.6.5.23(C) NMAC (6/13/2003) (stating that \u201c[t]he phrase \u2018current and correct values of property\u2019 .. . means . . . market value\u201d based on specified years). Read in this context, \u201cas of January 1\u201d defines not a limitation on what evidence can be considered, but rather a \u201ccut-off date\u201d for determination of the valuation of a property. AMREP Sw. Inc., 2012-NMCA-082, \u00b6 14; see 3.6.7.14(A), (B) NMAC. This \u201ccut-off date . .. eliminates the substantial amount of further valuation work that would be required in order to meet \u2018moving targets\u2019 presented by protests based on later-developed evidence of comparable tax-year sales.\u201d AMREP Sw. Inc., 2012-NMCA-082, \u00b6 14.\n{18} Similarly, the statutes and regulations applicable to exemptions do not limit claimants\u2019 evidence of educational use to the property\u2019s use on January 1. See, e.g., \u00a7 7-38-8.1 (requiring the tax division to \u201cadopt regulations to insure that all real property . . . claim\u00e9d to be exempt from property taxation ... shall be reported\u201d); \u00a7 7-38-17(E) (stating that claimants must file \u201cproof of eligibility\u201d but not specifying what evidence is required); 3.6.7.16 NMAC. Subsection C of Regulation 3.6.7.16 of the Administrative Code specifies the information that must be submitted in order to claim an educational use exemption, including \u201ca description of the owner\u2019s activities or tax status for federal purposes if relevant to the claim for exemption\u201d and \u201cevidence to support the claim and . . . evidence that [educational] use is the primary and substantial use of the property.\u201d (internal quotation marks omitted). Nowhere in that regulation is the claimant required to provide evidence of use on a certain date or prohibited from providing evidence of use of the property in the past. Only Regulation 3.6.7.14 of the Administrative Code specifies that \u201cif property is not entitled to exemption from property taxation ... on January 1 of the tax year, it is not exempted . . . for that tax year.\u201d We conclude that it is consistent with the purposes of Article VIII, Section 3 of the New Mexico Constitution and the remainder of the Property Tax Code to construe this language as setting a cut-off date to avoid re-classification of properties throughout the tax year as in AMREP Sw. Inc., rather than specifying a date on which the property\u2019s use defines its status for the remainder of the year.\n{19} Our conclusion is also consistent with cases addressing educational and charitable use. Both parties cite to NRA and Georgia O 'Keefe Museum in support of their positions. In NRA and Georgia O 'Keefe Museum, this Court examined the boundaries of \u201ceducational use\u201d and defined it as \u201cthe direct, immediate, primary and substantial use of property that embraces systematic instruction in any and all branches of learning from which a substantial public benefit is derived.\u201d NRA, 92 N.M. at 548, 591 P.2d at 679 (internal quotation marks omitted). The parties accept this definition. OtherNew Mexico cases cited by the parties included Sisters of Charity of Cincinnati, Ohio v. Bernalillo County, 93 N.M. 42, 45, 596 P.2d 255, 258 (1979), BPOE, Lodge No. 461, 83 N.M. at 446-47, 493 P.2d at 412-13, and Grace, Inc. v. Board of County Commissioners, Bernalillo County, 97 N.M. 260, 261, 639 P.2d 69, 70 (Ct. App. 1981). These cases addressed the requirements for \u201ccharitable use\u201d under Article VIII, Section 3 of the New Mexico Constitution. Cf. Pecos River v. Cnty. of San Miguel, 2013-NMCA-029, ___P.3d (discussing the requirement of \u201ccharitable use\u201d under Article VIII, Section 3 of the New Mexico Constitution, and concluding that protection of natural habitat through seasonal maintenance qualifies the property for exemption from taxation). None of these cases addressed the specific issue here: whether property must be in active use for exempt purposes on January 1 in order for an exemption to apply. But we can infer the opposite based on the facts relied on in these cases. For example, in NRA, the National Rifle Association sought a refund of taxes paid on the ground that it qualified for an educational use exemption. 92 N.M. at 543, 591 P.2d at 674. The Supreme Court set forth the district court\u2019s findings with regard to the NRA\u2019s activities during both the contested tax year and the year before. Id. at 544-45, 591 P.2d at 675-76. In Georgia O 'KeefeMuseum, the protest board heard testimony about the Museum\u2019s activities during the two years before the contested tax year. 2003-NMCA-003, \u00b6 5; see Sisters of Charity, 93 N.M. at 44, 596 P.2d at 257 (discussing history of use of the property without reference to a specific date or year); BPOE, Lodge No. 461, 83 N.M. at 446, 493 P.2d at 412 (relying on the facts recited in this Court\u2019s opinion, Benevolent & Protective Order of Elks, Lodge No. 461 v. N.M. Prop. Appraisal Dep\u2019t, 83 N.M. 505, 507, 494 P.2d 167, 169 (Ct. App. 1971) aff\u2019d, BPOE, Lodge No. 461, 83 N.M. at 447, 493 P.2d at 413, which addressed the lodge\u2019s activities throughout the tax year).\n{20} Assessor does not argue that the district court was following a \u201clong-standing administrative construction}] of [the] statute}] by the agency charged with administering [it]\u201d to which we should \u201cgive persuasive weight.\u201d AMREP Sw. Inc., 2012-NMCA-082, \u00b6 9 (internal quotation marks and citation omitted). Nor does Assessor directus to New Mexico cases that support the district court\u2019s approach. Assessor does cite Dillard v. New Mexico State Tax Commission, 53 N.M. 12, 201 P.2d 345 (1948), for the proposition that \u201ca property\u2019s status on January 1 is determinative of whether it is entitled to an exemption for that year.\u201d In that case, the Court considered whether a soldier discharged after January 1 of the tax year was entitled to a veteran\u2019s exemption for that year. Id. at 24, 201 P.2d at 353; see N.M. Const. art. VIII, \u00a7 5. Dillard is distinguishable from this case in several ways. First, the Court\u2019s holding \u2014 that \u201c[i]f the owner of property is not an honorably discharged soldier on January [1] of any year, then he is not entitled to . . . exemption for that year\u201d \u2014 was based on NMSA 1941, Section 76-203 (1933), which contains language not found in the current Property Tax Code. Dillard, 53 N.M. at 23-24, 201 P.2d at 353. Second, unlike a fact-dependent analysis of whether a property is used \u201cprimar[ily] and substantial[ly]\u201d for educational purposes to provide a \u201csubstantial\u201d public benefit, NRA, 92 N.M. at 547-48, 591 P.2d at 678-79, whether a soldier was honorably discharged as of a certain date is a binary question. Thus, we find Dillard to be distinguishable from the circumstance herein.\n{21} Neither are we convinced by the out-of-state cases cited by Assessor because both the facts and the statutes at issue there are unlike those here.\nB. Taxpayer\u2019s Property Did Not Qualify for the Educational Use Exemption\n{22} In spite of the district court\u2019s overly narrow interpretation of Section 7-38-7, we affirm the district court\u2019s decision because Taxpayer\u2019s educational use of the property was not \u201cprimary and substantial\u201d for at least twelve months before January 1, 2010. See NRA, 92 N.M. at 548, 591 P.2d at 679; see also Moffat v. Branch, 2002-NMCA-067, \u00b6 13, 132 N.M. 412, 49 P.3d 673 (\u201c[W]e will affirm the district court if it is right for any reason and if affirmance is not unfair to the appellant.\u201d).\n{23} \u201cAn exemption dependent on the use of property is solely a question of fact.\u201d Grand Lodge, 106 N.M. at 181, 740 P.2d at 1166. An exempt \u201cproperty need not be used exclusively for charitable or educational purposes, but those must be the primary or substantial uses. ... In addition, it is the actual use of the property, not the owner\u2019s declared objects and purposes, that determines the right to an exemption.\u201d Id. The Protest Board found that the property\u2019s design made it \u201cmost suited\u201d for a school and that there was \u201cno dispute that . . . use [of the property through May 2008] was a bona fide educational use entitling the owner to a full exemption.\u201d It concluded that beginning in August 2010, the property was again used for a \u201cbona fide educational use.\u201d It also made the following findings:\n[Finding] 21. There is also no significant dispute that the property ceased being used actively as a school in May, 2008 and was not used actively as a full-time elementary school again until August, 2010.\n[Finding] 23. More to the point, [T axpayer] actively sought an educational tenant for the subject property during the interim, including protracted negotiation with Desert Academy, which proved fruitless.\n[Finding] 27. There is evidence that during this time [Taxpayer] was actively seeking a school tenant and, in fact, was negotiating with one or more potential tenants. Moreover, there is evidence of the owner\u2019s commitment to an educational use of the subject property in the form of nominal or significantly reduced rents for such use.\n[Finding] 30. The subject property was not put to active educational use as of January 1. . . .\n{24} Our case law makes clear that the only relevant facts are those pertaining to the use of the property \u2014 not whether the property is built for a certain purpose, the owner\u2019s intent for the property, or the owner\u2019s support of educational or charitable causes through reduced rent. Grand Lodge, 106 N.M. at 181, 740 P.2d at 1166. Thus, findings 23 and 27, as well as the Protest Board\u2019s observations about the suitability of the property for a school, are of limited or no relevance to the question before us. See Grace, Inc., 97 N.M. at 260-61, 639 P.2d at 69-70 (holding that property purchased by a church for a new building was taxable in spite of the church\u2019s intent to build a new facility on it); Georgia O'Keefe Museum, 2003-NMCA-003, \u00b6 40 (stating that the educational use exemption does not distinguish between organizations that make a profit and those that do not). The focus on actual use derives from the basic principle on which the educational use exemption is based: \u201cThe rationale for this [exemption] provision is that all property should bear its share of the cost of government. Property which is exempt from taxation does not share in the burden. Therefore, in exchange for its exempt status, such property must confer a substitute substantial benefit on the public.\u201d NRA, 92 N.M. at 548, 591 P.2d at 679; see 71 Am. Jur. 2d State and Local Taxation \u00a7 269 (2012). Only property in actual use can provide a \u201csubstitute substantial benefit.\u201d NRA, 92 N.M. at 548, 551, 591 P.2d at 578, 682 (\u201cArticle VIII, [Section] 3 must be construed to free from taxation only property that is presently and actually in substantial use for educational purposes.\u201d). Here, the property was not in actual use to benefit the public for all of 2009. We recognize that Taxpayer sought to negotiate with educational tenants during this period. Nevertheless, because such negotiations reflect intent for future use of the property rather than \u201cpresent and actual\u201d use, we conclude that the property did not qualify for an educational use exemption in 2010.\nC. There Is no Constitutional Basis on Which Taxpayer Is Entitled to an Exemption\n{25} Taxpayer next argues that \u201c[t]he district court erred in rejecting the Protest Board\u2019s determination that the [property should be rendered exempt under [the] New Mexico Constitution^] [A]rticle VIII, [S]ection 1, which requires that similarly situated property be uniformly treated.\u201d Taxpayer disputes the district court\u2019s determination that, absent a showing of \u201cfraud or intentional discrimination by . . . Assessor},]\u201d there was \u201cno constitutional basis to warrant the remedy of exempting [Taxpayer\u2019s] property from taxation.\u201d \u201cWe interpret the Constitution and determine whether the law was properly applied to the facts through de novo review.\u201d Georgia O\u2019Keefe Museum, 2003-NMCA-003, \u00b6 27.\n{26} Our analysis encompasses three distinct questions. First, was there a disparity in taxation of two similarly situated properties? Second, was the disparity constitutional in nature? Finally, what is the proper remedy?\n{27} The Protest Board made the\nfollowing findings:\n[Finding] 34.....\na. The St. Francis School, owned by the Archdiocese of Santa Fe, was not operating as a school on January 1, 2010.\nb. School operations at the site, as the New Mexico School for the Arts, began for the fall semester of 2010.\nc. The school was in fact leased to a real estate developer for potential redevelopment during at least part of 2010.\nd. The tax rolls for the property containing the school reflected no valuation for improvements for 2010 (a portion of the lot was leased to the City of Santa Fe for parking during this time, and it may be only that portion which carried a land valuation).\ne. The school building was thus exempt from taxation for the 2010 tax year, as it was not placed on the tax rolls.\n[Finding] 35. [Taxpayer\u2019s] property is in a very similar situation, with no actual educational use on January [1], but with active educational use starting in the fall semester.\n[Finding] 41. Thus, if [Taxpayer\u2019s] property and the [St. Francis] School property were treated differently, but were otherwise in factually similar positions, that disparate treatment would constitute lack of uniformity.\n[Finding] 42. The Board does find such nonuniform treatment.\nThe parties dispute whether and to what extent the St. Francis School property was exempted from taxation. Assessor also argues that the Protest Board\u2019s findings were not supported by substantial evidence. We need not resolve this issue, however, because even if we assume there was a disparity, we determine that Taxpayer was not entitled to exempt status on that basis.\n{28} The second question is whether a disparity in taxation is a violation of the New Mexico Constitution\u2019s requirement of uniform taxation. N.M. Const, art. VIII, \u00a7 1. Disparity in taxation by itself is not unconstitutional. In Ernest W. Hahn, Inc. v. County Assessor for Bernalillo County, the Court held that \u201c[temporary inequalities which result from the practicalities of carrying out a county-wide systematic and definite property appraisal program are inevitable and constitutional.\u201d 92 N.M. 609, 612, 592 P.2d 965, 968 (1978). It is \u201c[o]nly when fraud or systematic discrimination are present, . . . [that] the inequitable taxation give[s] rise to a constitutional claim.\u201d Appelman v. Beach, 94 N.M. 237, 240, 608 P.2d 1119, 1122 (1980). Taxpayer seeks to distinguish Hahn and Appelman by arguing that it is unnecessary to demonstrate fraud or systematic discrimination in an exemption situation because exemption, unlike valuation, \u201cis determined by external facts easily discernible and not by a subjective judgment call.\u201d For reasons we discuss more fully below, we disagree that Hahn and Appelman are not applicable here. Taxpayer has not demonstrated that Assessor\u2019s disparate treatment of the two properties was the result of fraud or systematic discrimination; in fact, Taxpayer does not even assert that this is the case. Any disparity, therefore, does not rise to a constitutional violation. We affirm , the district court\u2019s conclusion to this effect.\n{29} Finally, we affirm the district court\u2019s rejection of Taxpayer\u2019s requested remedy. When there is a violation of the constitutional uniformity requirement, \u201c[taxpayers are entitled to a reduction in their assessment for the [relevant] tax year to a level which will achieve the practical uniformity required by Article VIII, Section 1 ... of the New Mexico Constitution.\u201d Hahn, 92 N.M. at 614, 592 P.2d at 970. In contrast, \u201c[i]f there is no constitutional claim, a taxpayer\u2019s remedy is limited to having the assessing authority raise the valuation of other properties to the level of his own.\u201d Appelman, 94 N.M. at 240, 608 P.2d at 1122. Appelman and Hahn are the progeny of Skinner v. New Mexico State Tax Commission, which addressed as a matter of first impression the question of \u201cwhether a tax equalization program in a county, commenced but not completed in a single year, violates the New Mexico constitutional provision requiring equal and uniform taxes.\u201d 66 N.M. 221, 222, 345 P.2d 750, 751 (1959). The Protest Board concluded that Skinner, Hahn, and Appelman are distinguishable on their facts. We conclude to the contrary that they are controlling here.\n{30} B oth Taxpayer and the Protest Board seek to distinguish Skinner, Hahn, and Appelman on the ground that they pertain to valuations only. The Protest Board found that Skinner was not \u201chelpful\u201d because, unlike valuations which are \u201csusceptible to shades of estimation or inexactitude[,]\u201d classification of property as exempt is \u201ca binary inquiry.\u201d Taxpayer makes a similar argument on appeal. We do not agree that classification of a property as tax exempt based on educational use is materially different from valuation of property. An educational use exemption is granted when the use of the property is \u201cprimarily] and substantially]\u201d used for educational purposes that provide a \u201csubstantial public benefit.\u201d NRA, 92 N.M. at 548, 591 P.2d at 679 (internal quotation marks omitted). The test for educational use thus requires a subjective assessment of the property\u2019s use and its benefit to the public.\n{31} In addition, the Skinner, Hahn, and Appelman holdings did not hinge on reasonable variation in values based on assessments of market value. Instead, they revolved around the timing of appraisals. In each case, the county conducted reappraisals of the protestants\u2019 properties but not on other properties in the county, which resulted in higher valuations of, and higher taxes on, the protestants\u2019 properties than on those of their neighbors. Appelman, 94 N.M. at 238-39, 608 P.2d at 1120-21; Hahn, 92 N.M. at 610-11, 592 P.2d at 966-67; Skinner, 66 N.M. at 222-23, 345 P.2d at 751. The focus of the Court\u2019s inquiry in those cases was the county\u2019s reappraisal program and whether it was based on a \u201csystematic and definite plan for the reappraisal of all lands in [the cjounty.\u201d Hahn, 92 N.M. at 613, 592 P.2d at 969. Thus, the question was whether the county was administering the reappraisal program in a discriminatory, non-uniform manner, not whether the reappraisal values or valuation methods were infirm. Appelman, 94 N.M. at 238, 608 N.M. at 1120 (stating that the taxpayer sought \u201cto have her property tax valuation reduced to the level of other county non-reassessed property\u201d); Hahn, 92 N.M. at 612, 592 P.2d at 968 (stating that \u201csingling out one or a few taxpayers for reappraisals for several years in succession while virtually all other owners of comparable properties do not undergo a single reappraisal in the same period is an inequality that is neither temporary nor constitutional\u201d); Skinner, 66 N.M. at 223, 345 P.2d at 751 (stating that the protestants \u201cdo not seriously protest their valuations nor claim that they are higher than the law allows, but . . . say that their assessments cannot be raised unless and until all other property in the county is similarly treated\u201d). Only in Hahn, where certain properties were reappraised repeatedly while others were not reappraised at all, did the Court determine that the conduct of the reappraisal program and resulting inequity in taxation was unconstitutional. 92 N.M. at 612, 592 P.2d at 968. We conclude that Skinner and its progeny are not distinguishable on these grounds.\n{32} Since here we have determined that there was no fraud or systematic discrimination by Assessor, the only remedy for any disparity is to remove the exemption from properties to which it was erroneously granted, rather than to exempt Taxpayer\u2019s property from taxes. Taxpayer did not request this remedy, arguing instead that the St. Francis School property was correctly granted an exemption and that Taxpayer\u2019s property should be similarly treated. See Appelman, 94 N.M. at 240, 608 P.2d at 1122 (stating that the taxpayer \u201csought the improper remedy; she should have requested that the [cjounty be ordered to raise the valuation level of other property in the county to full market value\u201d). The district court did not err in its conclusion that Taxpayer was not entitled to an exemption on the basis of non-uniform exemptions.\nCONCLUSION\n{33} Taxpayer is not entitled to an exemption from taxation in 2010 based on educational use of the property because the property was not in use for any eligible purposes for the entire previous tax year. Although the district court erred in focusing too narrowly on the use of the property on January 1, we nevertheless affirm its ruling to this effect. In addition, we agree with the district court\u2019s reasoning and conclusion that Taxpayer is not entitled to exemption from taxation based on non-uniform treatment of a similarly used property.\n{34} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nLINDA M. VANZI, Judge\nJ. MILES HANISEE, Judge\nThe record is unclear as to the tax status of the property in 2009.\nSince taxes are assessed annually, Section 7-3 8-7, we presume that the basis of tax status for the 2009 tax year was use of the property during 2008. The focus of our analysis for tax status in 2010, therefore, is on use of the property during 2009.", "type": "majority", "author": "Bustamante, Judge." } ], "attorneys": [ "Francis P. Matthews Elkhorn, NE", "Sommer, Udall, Sutin, Hardwick & HyattP.A. Kurt A. Sommer Santa Fe, NM for Appellant", "Bridget Jacober Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Granted, April 5, 2013,\nNo. 34,039\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-MCA-050\nFiling Date: February 1, 2013\nDocket No. 32,021\nCAVU CO., a Nebraska Corporation, Respondent-Appellant, v. DOMINGO MARTINEZ, Santa Fe County Assessor, Petitioner-Appellee.\nFrancis P. Matthews Elkhorn, NE\nSommer, Udall, Sutin, Hardwick & HyattP.A. Kurt A. Sommer Santa Fe, NM for Appellant\nBridget Jacober Santa Fe, NM for Appellee" }, "file_name": "0753-01", "first_page_order": 769, "last_page_order": 782 }