1 1 1 1 MOONEY, WRIGHT & MOORE, PLLC Paul J. Mooney (No. 000) Jim L. Wright (No. 01) Mesa Financial Plaza, Suite 000 South Alma School Road Mesa, Arizona 0-1 Telephone: (0) 1-00 Email: pmooney@azstatetaxlaw.com Attorneys for Plaintiff, SolarCity Corporation ROSE LAW GROUP, PC Court S. Rich (No. 00) Kelley Gorry (No. 00) Logan V. Elia (No. 000) 1 E. Stetson Drive, Suite 00 Scottsdale, Arizona 1 Telephone: (0) 0- Email: crich@roselawgroup.com Attorneys for Plaintiff, Sunrun, Inc. SUPERIOR COURT OF THE STATE OF ARIZONA IN THE ARIZONA TAX COURT SOLARCITY CORPORATION, a Delaware corporation; SUNRUN, INC., a Delaware corporation, vs. Plaintiffs, ARIZONA DEPARTMENT OF REVENUE, an agency of the State of Arizona, Defendant. No. TX VERIFIED COMPLAINT (Declaratory Judgment) Assigned to: Hon. Christopher Whitten Pursuant to A.R.S. 1-1, et seq., plaintiffs allege:
1 1 1 1 THE PARTIES I. Plaintiff, SolarCity Corporation, is a Delaware corporation that does business in the State of Arizona, and plaintiff, Sunrun, Inc., is a Delaware corporation that also does business in the State of Arizona. Plaintiffs, SolarCity and Sunrun (collectively Plaintiffs ), own and lease solar energy equipment to individual customers who own residential and commercial real property in the State of Arizona, for use on such property. The solar energy equipment that Plaintiffs lease is designed for the production of solar energy primarily for on-site consumption within the meaning of A.R.S. -1(C)(). II. Defendant, Arizona Department of Revenue ( ADOR ), is an agency of the State of Arizona. ADOR administers and enforces Title of the Arizona Revised Statutes. It prepares and maintains manuals and other necessary guidelines, reflecting standard methods and techniques to perpetuate a current inventory of taxable property and the valuation of that property in a fair and uniform manner. ADOR prescribes guidelines for applying standard appraisal methods and techniques that are used by ADOR and county assessors in determining how to value, classify and tax both real and personal property in the State of Arizona. Pursuant to limited delegations of authority in Title, Chapter 1, A.R.S., ADOR is only authorized to determine the values for certain types of property. GENERAL ALLEGATIONS III. Plaintiffs own solar energy devices as defined in A.R.S. -1, and grid-tied photovoltaic systems and other devices or systems designed for the production of solar energy systems designed for the production of solar energy primarily for on-site consumption, hereinafter referred to as the Subject Property. - -
1 1 1 1 IV. Plaintiffs lease the Subject Property to consumers, most of whom are homeowners, as well as some businesses, hereinafter referred to as Consumers. Plaintiffs place the Subject Property on rooftops, or otherwise locate it on the Consumers properties. V. The Subject Property is designed to generate electricity primarily for on-site consumption, and to meet the power needs of the Consumers properties where it is placed. The electricity generated by this equipment is not transmitted to the grid for sale, and specific rules adopted by the Arizona Corporation Commission which regulates companies that produce and sell electricity directly to consumers expressly prohibit Plaintiffs from doing so. VI. Plaintiffs leases with the Consumers who use the Subject Property to generate electricity for on-site consumption are based solely on their use of the solar energy equipment, and Plaintiffs do not sell electricity to the Consumers. VII. The Arizona Legislature has made it clear that the Subject Property, when used primarily for on-site consumption of the electricity generated by such property, is considered to have no value and to add no value to the property on which it is installed, and thus it should not be separately assessed for property tax purposes. Specifically, A.R.S. -1(C)() provides: Solar energy devices, as defined in section -1, grid-tied photovoltaic systems and any other device or system designed for the production of solar energy primarily for on-site consumption are considered to have no value and to add no value to the property on which such device or system is installed. - -
1 1 1 1 VIII. On or about April 1, 1, ADOR, through its Property Tax Division and Centrally Valued Properties Unit, issued a memorandum ( the ADOR Memo ), a copy of which is attached hereto as Exhibit A. The ADOR Memo addresses the property taxation of solar energy equipment in Arizona, including the Subject Property. Notwithstanding the plain language of A.R.S. -1(C)(), the ADOR Memo takes the position that solar energy equipment such as the Subject Property must be reported to ADOR, and that it is taxable under A.R.S. - if the equipment is owned by a solar company and installed on another person s property, even if the solar energy equipment is designed and placed to produce electricity primarily for on-site consumption. The ADOR Memo also asserts that such solar energy devices are subject to taxation under A.R.S. - as renewable energy equipment and that it should be reported by the owner(s) to ADOR and valued for property tax purposes at % of its depreciated cost under that statute. IX. The ADOR Memo includes the following examples illustrating its position: 1. A homeowner buys solar panels, installs them on his home and consumes the power produced from those panels. The panels and the ancillary equipment are locally assessed and are considered to have no value and add no value to the home.. A homeowner leases solar panels from a solar company and pays the solar company for the energy produced through, for example, a power purchase agreement or a solar services agreement. The solar company must report the property to the Department to be centrally assessed.. A company owns and installs an array of solar panels to provide power to a waste water treatment plant. The waste water treatment plant pays for the power under a power purchase agreement. The company that owns the panels and sells the power is centrally assessed. - -
1 1 1 1 X. In a letter dated June, 1, ADOR s Director reiterated the legal position that is set forth in the ADOR Memo that the Subject Property is subject to assessment by ADOR. XI. On or about June 1, 1, ADOR mailed Notices of Value to Plaintiffs, purporting to determine full cash values pursuant to A.R.S. - for the Subject Property. Copies of the Notices sent to Plaintiffs are attached hereto as Exhibit B. The full cash values set forth in Exhibit B will result in an assessment of property taxes against Plaintiffs for tax year 1. Upon information and belief, similar Notice of Value forms were mailed to other companies who are engaged in the same business activity. XII. Plaintiffs are not in the business of generating, transmitting or distributing electricity to customers within the meaning of A.R.S. -1, so they are not subject to valuation or taxation under A.R.S. -, as asserted in the ADOR Memo. Therefore, ADOR has no legal basis to value or assess the Subject Property as it has. XIII. Plaintiffs are in the business of leasing equipment designed for the production of solar energy primarily for on-site consumption, as set forth in A.R.S. -1(C)(). The Legislature determined that such property is considered to have no value and to add no value to the property on which it is installed. As such, ADOR has no legal authority to try to value and assess the Subject Property as it has asserted in the ADOR Memo. XIV. The ADOR Memo and ADOR s Notices of Value referenced above have created significant uncertainty for Plaintiffs in the conduct of their businesses in Arizona, as well as potential tax liabilities for Plaintiffs and/or the Consumers, as well as others who have - -
1 1 1 1 leased solar energy equipment from Plaintiffs or from other companies engaged in leasing such property, pursuant to the express terms of the leases for such equipment. XV. Upon information and belief, based on the Notices of Value ADOR has sent to Plaintiffs and to other similarly-situated lessors of solar energy equipment, the counties throughout Arizona in which such leased solar energy equipment is located will levy and collect property taxes from Plaintiffs and other similarly-situated owners/lessors of solar energy equipment, based on ADOR s Notices of Value, resulting in property tax bills totaling millions of dollars for each tax year during which such leases are in effect. Plaintiffs solar equipment leases typically last from 1 to years or more. XVI. Pursuant to the express terms of Plaintiffs leases of the solar energy equipment that comprise the Subject Property, if ADOR values and assesses the Subject Property in the manner it has indicated in its Notices of Value, the Consumers as lessees of the Subject Property will be responsible to pay the resulting property taxes that are assessed to Plaintiffs, based on ADOR s flawed interpretation of the relevant statutes. CLAIM FOR RELIEF DECLARATORY JUDGMENT XVII. Plaintiffs incorporate the allegations of all prior paragraphs as if fully set forth herein. XVIII. Pursuant to A.R.S. -1(C)(), the Arizona Legislature has prescribed that the Subject Property, which is comprised of leased solar energy devices designed for the production of solar energy primarily for on-site consumption, are considered to have no value and to add no value to the property on which such device or system is installed. XIX. - -
1 1 1 1 Pursuant to A.R.S. -1(B), the Arizona Legislature has granted limited authority to ADOR to value and assess certain property used to generate electricity that is delivered to customers through a transmission and distribution system. This provision governs the assessment of all electric generation property, pursuant to the specific requirements of Sections -, -, or -, whichever one applies. XX. Plaintiffs do not own any property that is used to generate electricity that is delivered to customers through a transmission and distribution system. Instead, Plaintiffs own and lease solar energy devices that are placed on the Consumers property primarily for on-site consumption of the power that is generated by the Subject Property. XXI. Pursuant to A.R.S. -1(C)(), the Subject Property is not subject to valuation or assessment by ADOR under A.R.S. -, because it is used primarily for on-site consumption and is not delivered via a transmission and distribution system. XXII. There is a genuine dispute and an actual controversy regarding the proper interpretation of multiple statutes in Title of the Arizona Revised Statutes that deal with ADOR s present claim of legal authority to value and assess the Subject Property under the provisions of A.R.S. -, notwithstanding the Legislature s express determination in Section -1(C)(), that such property is considered to have no value and to add no value to the property on which such device or system is installed. XXIII. Although Plaintiffs believe that the meaning of Section -1(C)() is clear and unambiguous, to the extent the interpretation of that statute advocated by the ADOR Memo asserts ambiguity in its meaning, the canons of statutory construction for tax - -
1 1 1 1 statutes requires the Court to construe any such ambiguity liberally in favor of Plaintiffs as the taxpayers herein, and strictly against ADOR. XXIV. Upon information and belief, the interpretation of A.R.S. -1(C)() that is advocated in the ADOR Memo that solar energy equipment is not taxable when it is owned, but the identical equipment is taxable when it is leased would render that statute unconstitutional under Article IX, 1 of the Arizona Constitution. Thus, Plaintiffs believe ADOR s interpretation of the statute is incorrect because it contravenes the presumption that all laws are constitutional, and it is at odds with the canon of statutory construction which requires all laws to be construed in a constitutional manner, if possible. XXV. Pursuant to A.R.S. 1-1, et seq., Plaintiffs seek a declaration of their rights, status and legal relations as they relate to ADOR s interpretation of A.R.S. - 1(C)(), and its erroneous determinations of full cash values for the Subject Property under A.R.S. -, which will result in assessments against Plaintiffs in 1. WHEREFORE, Plaintiffs request that this Court: 1. Grant them a declaratory judgment that, pursuant to A.R.S. -1(C)(), the Subject Property is considered to have no value and to add no value to the property on which it has been installed, because it consists of solar energy devices that are designed to produce electricity primarily for on-site consumption and, as such, it is not subject to valuation or assessment for Arizona property tax purposes under current Arizona law;. Grant them a declaratory judgment that the Subject Property is not subject to valuation or assessment by ADOR under the provisions of A.R.S. -;. Grant them a declaratory judgment that ADOR s interpretation of Section - 1(C)() as authorizing it to determine full cash values for solar energy equipment - -
1 1 1 1 owned and leased by Plaintiffs and other similarly-situated lessors of property designed to produce electricity primarily for on-site consumption, if upheld, would result in assessments of such property in tax year 1 that violate Article IX, Section 1 of the Arizona Constitution and other laws relating to the uniform valuation and assessment of the Subject Property for Arizona property tax purposes;. Award them the attorneys' fees and any expert witness expenses they incur in bringing and prosecuting this action, pursuant to A.R.S. 1-, together with their taxable costs, pursuant to A.R.S. 1-1; and. Grant such further relief as the Court deems proper. DATED this 0 th day of June, 1. MOONEY, WRIGHT & MOORE, PLLC By Paul J. Mooney Jim L. Wright Attorneys for Plaintiff, SolarCity Corporation ROSE LAW GROUP, PC By Court S. Rich Kelley Gorry Logan V. Elia Attorneys for Plaintiff, Sunrun, Inc. - -
My name is. VERIFICATION I am the of Plaintiff, SOLARCITY CORPORATION. I declare under penalties of perjury and the laws of the State of Arizona that the factual allegations in the foregoing complaint are true to the best of my knowledge, information and belief. SIGNED this day of June, 1. (Insert Name) 1 1 1 1 - -
VERIFICATION My name is. I am the of Plaintiff, SUNRUN, INC. I declare under penalties of perjury and the laws of the State of Arizona that the factual allegations in the foregoing complaint are true to the best of my knowledge, information and belief. SIGNED this day of June, 1. (Insert Name) 1 1 1 1 - -