2006 UT 6

This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Beaver County, Box Elder County,
Nos. 20040236
Cache County, Carbon County,
20040241
Daggett County, Davis County,
Duchesne County, Emery County,
Garfield County, Grand County,
Iron County, Juab County, Kane
County, Millard County, Morgan
County, Piute County, Rich County,
Salt Lake County, San Juan County,
Sanpete County, Sevier County,
Summit County, Tooele County,
Uintah County, Utah County,
Wasatch County, Washington
County, and Weber County,
Petitioners,
v.
Property Tax Division of the Utah
F I L E D
State Tax Commission, and PacifiCorp,
Respondents.
January 24, 2006
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Original Proceeding in this Court
Attorneys: Bill Thomas Peters, David W. Scofield, Salt Lake
City, for petitioners
Mark L. Shurtleff, Att'y Gen., John C. McCarrey,
Asst. Att'y Gen., Salt Lake City, for respondent
Utah State Tax Commission
David J. Crapo, Salt Lake City, for respondent
PacifiCorp
---
WILKINS, Associate Chief Justice:
¶1
This case is a cross-petition for a writ of review of
the Utah State Tax Commission's determination that it could
equitably toll the statutory period on issuing escaped property
taxes to allow its Property Tax Division to issue an assessment
for such taxes against PacifiCorp, a utility company, after the

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statutory period for such issuances had expired; that the Utah
State Tax Division's assessment of unpaid taxes was incorrect and
PacifiCorp actually owed nothing; and that PacifiCorp was time-
barred from receiving a tax refund for over-paid taxes.
¶2
Twenty-eight Utah counties, as interveners to the
action, seek review of the Commission's second ruling.
PacifiCorp seeks review of the first and third. We reverse the
Commission's determination that the limitations period could be
equitably tolled to preserve the issuance of a tax assessment.
We accordingly vacate the Division's assessment of the escaped
property tax for tax year 1997 because it was issued after the
statutory period had expired. Since the determination of whether
the limitations period could be equitably tolled is dispositive
to this case, and we find that it could not, we dismiss the
remaining issues as moot and do not address them.

BACKGROUND
¶3
PacifiCorp is a utility company that holds property in
the State of Utah. The Property Tax Division (the "Division") of
the Utah State Tax Commission (the "Commission") is charged under
Utah Code section 59-2-201 (2004) with the responsibility of
centrally assessing PacifiCorp's state property tax liability.
¶4
On May 1, 1997, the Division issued a notice of
assessment of PacifiCorp's 1997 total taxable property in the
amount of $2,674,851,530. On May 30, 1997, PacifiCorp appealed
the Division's tax assessment for that year by filing a Petition
for Redetermination of the 1997 Original Assessment. Twenty-
eight Utah counties (the "Counties") that benefit from the tax
revenue also filed a Petition for Redetermination of the 1997
assessment. Both PacifiCorp and the Counties subsequently
withdrew their petitions without comment, and the Commission
accordingly dismissed their respective appeals. PacifiCorp then
paid the tax amount indicated in the Original Assessment without
protest.
¶5
During a deposition in July of 2000 on a 1999 tax
assessment dispute, PacifiCorp, the Counties, and the Division
discovered that PacifiCorp had erroneously overstated the amounts
of its Deferred Income Tax ("DIT") and Investment Tax Credit
("IT") deductions in its annual report for 1997, 1998, and 1999.1

1 There was no allegation of fraud on the part of PacifiCorp
in the misreporting. All parties concede that the mistakes were
made in good faith, and that PacifiCorp learned of the mistakes
(continued...)
Nos. 20040236, 20040241
2

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The Division had relied on the schedule, including the erroneous
DIT and IT figures, that PacifiCorp had provided in its annual
report to determine the cost approach value in the Division's
Original Assessment. The reporting errors could have potentially
undervalued the property to the extent that some portion of the
property could be considered to have escaped taxation altogether,
in which case an escaped property tax assessment should then be
issued against PacifiCorp.
¶6
An "escaped property" is any property that is subject
to taxation and is
(i) inadvertently omitted from the tax rolls,
assigned to the incorrect parcel, or assessed
to the wrong taxpayer by the assessing
authority;
(ii) undervalued or omitted from the tax
rolls because of the failure of the taxpayer
to comply with the reporting requirements of
this chapter; or
(iii) undervalued because of errors made by
the assessing authority based upon incomplete
or erroneous information furnished by the
taxpayer.
Utah Code Ann. § 59-2-102(11)(a) (2004). On the other hand,
property that is undervalued because the assessing authority used
a different valuation methodology or applied the same methodology
in a different manner is not an escaped property. Utah Code Ann.
§ 59-2-102(11)(b). If the assessing authority determines that a
property qualifies as an escaped property, that authority can
then issue an assessment of the escaped taxes. Id. § 59-2-
217(1).
¶7
The 1999 valuation proceeded to a formal hearing, and
the Commission issued its final order for that valuation in April
of 2001. The Commission found that, despite the misreporting of
the DIT and IT deductions in the 1999 Annual Property Tax Report,
the property itself had not been undervalued nor, therefore,
undertaxed. Thus, there was neither escaped property nor
associated tax to be assessed. Instead, the Commission actually
reduced the value of the property for that tax year from that
determined in the Division's Original Assessment.

1(...continued)
at the same time as the Division and the Counties.
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¶8
Despite the Commission's ruling that the overstated
deductions did not undervalue the property and the company's tax
liability for 1999, the Counties urged the Division to issue an
escaped property tax for tax year 1997 under the theory that the
misstatements did undervalue the 1997 Original Assessment of the
property. After the Division failed to take action, the Counties
filed a request with the Commission in July of 2001 to order the
Division to issue an escaped property tax assessment against
PacifiCorp for tax year 1997. Though the Commission ultimately
determined in April of 2002 that the Counties lacked standing to
compel the agency action it requested, the Commission itself
nonetheless ordered the Division to "investigate the [Counties']
allegation of escaped property and issue an escaped property tax
assessment, which may be a $0 assessment or some other number
based on the investigation."
¶9
On May 1, 2002, the Counties sought a writ of review in
this court of the Commission's ruling that they lacked standing
to initiate the agency action. Beaver County v. Property Tax
Div. ex rel. PacifiCorp, No. 20020346 (Utah May 1, 2002). On May
24, PacifiCorp moved to intervene in the Counties' appeal, and we
granted the company's motion on July 15. On August 23,
PacifiCorp filed a suggestion of mootness with us, arguing that
the Commission's directive granted the very relief the Counties
were now seeking from the state court.
¶10
On August 29, while the Counties' appeal was still
pending, the Division issued the escaped property tax assessment
against PacifiCorp for tax year 1997. The Commission, on
September 5, then filed a response to PacifiCorp's suggestion of
mootness, agreeing that the Counties' appeal was moot. Beaver
County, No. 20020346. On November 18, we dismissed the Counties'
appeal for mootness.
¶11
On September 25, before we had dismissed the Counties'
case, PacifiCorp filed a petition for redetermination to
challenge the Escaped Property Assessment the Division had issued
against it in August. One of the arguments PacifiCorp made in
support of its challenge was that the five-year statute of
limitations contained in Utah Code section 59-2-217 barred the
Division from trying to collect any escaped property tax for
1997.
¶12
The Commission ultimately concluded that, although the
limitations period had run, principles of equity required that
the period be equitably tolled to avoid prejudice to the
Counties. The Commission went on to rule on the merits of the
case, holding that the property had not been undervalued for tax
Nos. 20040236, 20040241
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year 1997 and that therefore no escaped property or associated
tax was owed. Rather, the Commission found that the property had
been overvalued and, had PacifiCorp petitioned for review of the
valuation back in 1997, the company would have been entitled to a
refund at that time. Because the company failed to exercise any
of its rights to protest the assessment in the appropriate time
period, however, it was no longer entitled to a refund on the
overpaid tax.
¶13
The Counties and PacifiCorp both challenge certain
rulings of the Commission. The Counties seek review of the
Commission's determination that the property was not undervalued.
PacifiCorp, on the other hand, asks us to reverse the
Commission's determination that it could equitably toll the time
period during which the Division must assess escaped property
taxes and thereby preserve the untimely tax assessment against
PacifiCorp. A finding that the limitations period could not be
tolled would render the Division's tax assessment void and would
dispose of the case in its entirety. In the event that we deny
PacifiCorp's first request, PacifiCorp asks us to uphold the
ruling that it owes no further tax dollars for 1997 and to
overrule the Commission's determination that the company is no
longer entitled to a refund. The Commission seeks to be affirmed
on all its holdings.
¶14
We have jurisdiction pursuant to Utah Code sections
63-46b-14(1) (2004) and 78-2-2(3)(e)(ii) (2002).
ANALYSIS
¶15
The issue dispositive to this case is whether the
Commission erred in equitably tolling the lookback period on the
1997 Escaped Property Assessment. If equitable tolling was
improper in this case, the escaped property tax assessment was
untimely, and therefore void, and all further issues arising out
of the assessment would thus be moot. We conclude that
principles of equity do not apply to toll the limitations period
in this case and vacate the tax assessment as untimely.
Accordingly, we do not reach the other two issues raised and
dismiss them as moot.
¶16
The application of a limitations period presents a
question of law that we review for correctness, giving no
deference to the Commission's determination. Exxon-Mobil Corp.
v. Utah State Tax Comm'n, 2003 UT 53, ¶ 10, 86 P.3d 706; see also
Utah Code Ann. §§ 59-1-610(1)(b), 59-2-217 (2004).
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Nos. 20040236, 20040241

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¶17
As a preliminary matter, we take the opportunity to
clarify that this limitations period is not technically a statute
of limitations, but rather a lookback statute. This
clarification alters neither the analysis nor the outcome of this
case, as all parties to this action agree that there is a limited
time during which an assessing authority may reassess taxes for
previous tax years based upon a theory of escaped property. We
clarify the point merely for the sake of correctness.

¶18
We have explained that "a statute of limitations
requires a lawsuit to be filed within a specified period of time
after a legal right has been violated." Raithaus v. Saab Scandia
of Am. Inc., 784 P.2d 1158, 1161 (Utah 1989). A lookback
statute, on the other hand, "prescribes a period within which
certain rights . . . must be enforced" or lost. Young v. United
States, 535 U.S. 43, 47 (2002).
¶19
Here, the Division was not given a deadline within
which it must file a lawsuit against a taxpaying entity; rather,
it was given a time frame during which it must enforce its right
to assess escaped property or lose that right forever. Whether
we call it a statute of limitations or a lookback statute, the
result in this case is the same, as principles of equity apply to
both. Id. ("The three year lookback period is a limitations
period subject to traditional principles of equitable tolling.").
Thus, we turn to the governing statute, which reads:
Any escaped property may be assessed by the
original assessing authority at any time as
far back as five years prior to the time of
discovery, in which case the assessing
authority shall enter the assessments on the
tax rolls and follow the procedures
established under Part 13 of this chapter.
Utah Code Ann. § 59-2-217(1) (2004).
¶20
The Commission determined that "discovery" has occurred
"when a revaluation of the property shows that it has escaped
taxation through under-assessment and the assessing authority
issues a new assessment." The Commission concluded that it is
not enough for the Division to simply realize that it has been
provided with incomplete information, since errors in reporting
do not always mean that a property has escaped assessment.
¶21
We do not reverse the Commission's interpretation of
the lookback period. The reason for our holding on this point is
simply that the Commission's interpretation conforms to the
Nos. 20040236, 20040241
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mandate that tax provisions be construed in favor of the
taxpayer, whereas the Counties' proposed interpretation is highly
unfavorable. See Indus. Commc'ns, Inc., v. Utah State Tax
Comm'n, 2000 UT 78, ¶ 17, 12 P.3d 87 (noting the general rule
that "tax statutes . . . are to be construed liberally in favor
of the taxpayer"); accord Bd. of Equalization v. Utah State Tax
Comm'n, 944 P.2d 370, 373-74 (Utah 1997) (same).
¶22
Under the Counties' reading of the statute, "discovery"
occurs only when the Division "first learned that there [is]
incomplete or erroneous information supplied [by the taxpayer] on
its annual property tax returns." In this case, the Counties
argue, the Division "discovered" the escaped property on July 18,
2000, when it learned that there were reporting errors that may
have led to an undervaluation, rather than two years later when
it actually determined that the errors did lead to an
undervaluation and issued an assessment against the company.
¶23
This interpretation provides the Division with
substantially more flexibility in issuing escaped property
assessments against taxpayers than would the Commission's reading
of the statute. The Counties argue that the statute "provide[s]
a five-year lookback period from the point of discovery, and the
assessment for that five-year period could be made `at any
time.'" Essentially, then, according to the Counties, the
Division need only discover the existence of reporting errors,
which may or may not have led to an undervaluation, within five
years of the original undervaluation. The Division then has
unlimited time thereafter to actually issue an assessment for the
undervalued property. Such an interpretation, as a substantive
matter, is wholly contrary to the principle that we must construe
tax provisions in favor of the taxpayer, and we therefore reject
it.
¶24
Thus, we adopt the Commission's interpretation of the
statute and turn to the primary issue for disposition: whether
the Commission acted properly in tolling the limitations period.
Here, the Division did not issue an escaped property assessment
against PacifiCorp for tax year 1997 until August 29, 2002.
Under the Commission's interpretation of the statute, the
Division failed by five months to discover the escaped property
within the five-year time frame provided. The Commission
conceded that had the suit been between PacifiCorp and the
Division alone, it would have found the assessment itself to be
untimely and the entire case moot. The Commission decided,
however, to equitably toll the limitations period in the
interests of the intervening Counties. The Commission reasoned
that it would be unfair to subject the Counties--which had put
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Nos. 20040236, 20040241

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forth every effort toward the timely issuance of the escaped
property assessments­-to the consequences of the Division's
inertia in doing so.

¶25
In ruling that equitable principles applied in this
case to toll the lookback statute, the Commission acknowledged
that it knew of no cases "where `equitable tolling' or
`exceptional circumstances' were applied in circumstances similar
to the facts at hand." The Commission was referring to the fact
that no Utah court had ever granted a petition for equitable
tolling when the party against whom the limitations period
applied was aware of the facts underlying the claim before the
period expired, as the Division indisputably was in this case.
See, e.g., Estes v. Tibbs, 1999 UT 52, ¶ 7 n.4, 979 P.2d 823
(noting that Utah courts have typically required an initial
showing that the appellant did not know nor could have known of
the existence of a cause of action before they will consider
whether to equitably toll the limitations period).
¶26
The Commission decided, however, that weighing the
prejudice to the plaintiffs in not allowing the claim to proceed
against the hardship to the defendants in having to defend
against a stale claim yielded the result that the limitations
period should be equitably tolled. The Commission reasoned that
the Counties had done all within their power to urge the Division
to issue a timely assessment, and the prejudice to them for the
Division's failure to do so was "great," since the funds that
could be secured through the action would have gone in some
measure to the Counties.
¶27
The Commission reasoned that the company, on the other
hand, would experience no additional hardship in defending the
claim due to the additional five months since it knew that the
Counties were requesting agency action well before the statutory
time frame had expired, and that the issue of whether the
Counties had the right to force the agency action it sought was
pending before us.
¶28
We hold that the Commission acted improperly in
equitably tolling the limitations period here because the
circumstances of the case do not meet Utah's standards for
applying the tolling doctrine. Not only were the Counties unable
to show that the Division was prevented from issuing a timely
assessment due to an excusable delay in discovering the
underlying claim, but they were likewise unable to demonstrate
that applying the limitations period would be irrational or
unjust.
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¶29
No Utah court has ever found occasion to equitably toll
a limitations period when there has not first been a
demonstration that the party seeking the tolling could invoke the
discovery rule due to an excusable delay in discovering the
underlying claim before the limitations period expired. Estes,
1999 UT 52, ¶ 7 (noting that "[e]very case in which we have
addressed a `special circumstances exception' has dealt with
tolling a statute of limitations through application of the
discovery rule"). This is not to say that no party may ever
qualify for equitable relief in the absence of such a delay in
discovering the claim, but rather to illustrate the high bar this
court has required those seeking such extraordinary relief to
hurdle.
¶30
The discovery rule operates to "`toll the period of
limitations until the discovery of facts forming the basis for
the cause of action,'" Snow v. Rudd, 2000 UT 20, ¶ 10, 998 P.2d
262 (internal quotation marks omitted), where the party can make
"an initial showing . . . that [he] did not know of and could not
reasonably have known of the existence of the cause of action in
time to file a claim within the limitation period." Warren v.
Provo City Corp., 838 P.2d 1125, 1129 (Utah 1992). Indeed, we
have noted that in Utah "the principle of equitable tolling . . .
has been developed almost exclusively through application of the
discovery rule." Grynberg v. Questar Pipeline Co., 2003 UT 8,
¶ 65, 70 P.3d 1; see, e.g., Snow, 2000 UT 20; Estes, 1999 UT 52;
Burkholz v. Joyce, 972 P.2d 1235 (Utah 1998); Williams v. Howard,
970 P.2d 1282 (Utah 1998); Walker Drug Co. v. LaSal Oil Co., 902
P.2d 1229 (Utah 1995); Sevy v. Security Title Co., 902 P.2d 629
(Utah 1995); Warren, 838 P.2d 1125.
¶31
Discovery of the underlying claim against PacifiCorp is
simply not at issue here. The Counties had been attempting to
force the Division to issue the escaped property assessment
against the company over an extended time well within the
limitations period. There is no dispute that the Division was
aware of the facts underlying the tax claim against PacifiCorp
two years before the lookback period expired. The Counties
cannot argue that the Division's failure to assert its right to
issue the assessment arose from an excusable defect of knowledge
of the underlying claim. Thus, the only avenue for invoking
equitable tolling that Utah courts have ever trod---i.e., by way
of the discovery rule--is foreclosed to the Counties.
Furthermore, the circumstances of this case are simply not
sufficiently egregious to require tolling of the limitations
period that bars action by the Division.
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¶32
We have counseled that "[c]ourts should be cautious in
tolling a statute of limitations; liberal tolling could
potentially cause greater hardships than it would ultimately
relieve." Estes, 1999 UT 52, ¶ 7. The doctrine of equitable
tolling should not be used simply to rescue litigants who have
inexcusably and unreasonably slept on their rights, but rather to
prevent the expiration of claims to litigants who, through no
fault of their own, have been unable to assert their rights
within the limitations period. We have yet to hear a case in
which a litigant was aware of his or her claims within the
statutory time frame and nonetheless merited equitable tolling.
We do not find such a party in the case before us.
¶33
In the only other case we have heard in which a party
seeking equitable tolling admitted to having known of his claim
within the limitations period, we held that the circumstances of
the case were not sufficiently egregious to merit the
extraordinary relief equitable tolling provides. Estes, 1999 UT
52, ¶ 7. There, Estes was imprisoned during the limitations
period and lacked access to a lawyer and a law library. He
claimed that his status was so exceptional and debilitating to
asserting his claims in a timely way that the court should
equitably toll the limitations period on his claims for the
duration of his imprisonment. We disagreed, pointing out that he
was able to file three pro se petitions from prison and could not
reasonably explain why he would be unable to likewise file the
actions foreclosed by the statute of limitations.
¶34
In this case, extraordinary circumstances simply do not
exist to merit the extraordinary relief requested. The Counties'
argument supporting the equitable tolling of the limitations
period is simply that they would suffer the consequences of the
Division's failure to timely file. While regrettable, such
prejudice to the Counties does not constitute an irrational or
unjust application of the limitations period.
¶35
The United States Supreme Court's analysis in Young
does not dictate a distinct analysis. In Young, the Court
carefully explained that, though the federal bankruptcy provision
at issue was a lookback statute rather than a statute of
limitations, the statute was nonetheless a limitations period,
should be analyzed as such, and was subject to principles of
equitable tolling. Id. at 50. The Court went on to apply the
equitable tolling doctrine as it exists at the federal level.
¶36
We have come to the same conclusion with regard to the
lookback provision at issue here: though technically a lookback
statute, it performs the same function as a statute of
Nos. 20040236, 20040241
10

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limitations and should be treated accordingly, meriting the
application of our equitable tolling doctrine. Nothing in Young,
however, precludes states from developing their own variations of
the equitable tolling doctrine in accordance with their own
separate statutory schemes. Where a statute already exists to
toll a limitations period, there is no need to invoke equitable
principles to achieve the same end.
¶37
Utah has developed an extensive statutory scheme
addressing the limitations of actions that renders statutory
disability from protecting a claim irrelevant under our equitable
tolling doctrine. See Utah Code Ann. §§ 78-12-1 to 78-12-48
(2002). Under section 78-12-41, "[w]hen the commencement of a
cause of action is stayed by injunction or a statutory
prohibition the time of the continuance of the injunction or
prohibition is not part of the time limited for the commencement
of the action." Utah Code Ann. § 78-12-41. Thus, under Utah
law, where a party is statutorily prevented from preserving its
claim for a period of time, the limitations period on the party's
claim is statutorily tolled for the duration of the stay.
Principles of equitable tolling need not be invoked to effectuate
the relief.
¶38
The federal bankruptcy provisions at issue in Young
created a situation in which the IRS was statutorily prohibited
from proceeding with its claims against the Youngs during the
pendency of their Chapter 13 petition. Young, 535 U.S. at 50.
Because there was no provision in the bankruptcy code to toll the
limitations period on claims that were statutorily stayed, the
Court essentially utilized equitable principles to do so.
¶39
The Court's action closed a legal exception that would
otherwise have allowed taxpayers to avoid paying a tax debt by
filing for bankruptcy relief under one chapter of the bankruptcy
code, thereby statutorily preventing the IRS from taking steps to
protect its claim, and then waiting until the statutory period
had expired on the IRS's claim before dismissing their petition.
The Court refused to allow this result, holding that the lookback
period in the bankruptcy code was equitably tolled during the
pendency of the prior bankruptcy petition because "the IRS was
disabled from protecting its claim" during that period. Id. The
Court found it unnecessary to determine whether the taxpayer had
filed back-to-back bankruptcy petitions in a bad faith attempt to
run down the limitations period or simply in a good faith use of
bankruptcy laws. Id. The only salient point was that the IRS
was disabled from pursuing its claim.
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¶40
Because the federal bankruptcy code contains different
provisions from Utah's statutory scheme addressing the
limitations of actions, and does not have a provision tolling
limitations periods during a statutorily-induced stay on a
party's ability to protect his claim, the Court necessarily
invoked equitable principles to remedy the problem. Here, on the
other hand, the Division was not statutorily prohibited from
pursuing its claim against PacifiCorp. It simply failed to act.
And had the Division been statutorily prohibited from acting,
Utah Code section 78-12-41 would serve to toll the limitations
period until such time as the Division was statutorily permitted
to pursue its claims.
¶41
Further, it is important to note that the Court in
Young did not rule, as the concurrence argues, that "equitable
tolling should not apply to the detriment of the taxpayer unless
the taxpayer itself was responsible for causing the lookback
period to expire" on the unpursued claim. Rather, it simply held
that, where the IRS was statutorily disabled from protecting its
claim during the lookback period, that period was tolled until
such time as the IRS was legally permitted to pursue its claim.
Young, 535 U.S. at 50-51 ("[T]he IRS was disabled from protecting
its claim during the pendency of the Chapter 13 petition, and
this period of disability tolled the three-year lookback period
when the Youngs filed their Chapter 7 petition.").
¶42
Thus, whether equitable tolling would be granted turned
on whether the IRS was disabled from pursuing its claim, not on
whether it was the taxpayer who bore the fault for any such
disability. Because Utah already has a statute in place that
tolls limitations periods where a party is disabled by injunction
or statutory prohibition from protecting its claims, there is no
reason to depart from the doctrine of equitable tolling that we
have already developed and applied repeatedly to address such a
circumstance.
¶43
Under our traditional principles of equitable tolling,
the party seeking equitable tolling must first show that he was
indeed disabled, usually through a defect of knowledge for which
he could not be held responsible, from protecting his claim. We
have never granted equitable tolling where a party has been
unable to make such a showing. The fact that the Supreme Court
was presented with a situation in which it was not imperfect
knowledge, but rather a statutory prohibition, that prevented the
IRS from pursuing its claims, and that there was no provision in
the bankruptcy code analogous to Utah's statutory scheme that
tolled limitations periods during periods of statutory stays on
Nos. 20040236, 20040241
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IRS action, does not cause us to modify our approach under our
equitable tolling doctrine.
¶44
We have not said that a party may never obtain
equitable relief from the expiration of a limitations period
without first invoking the discovery rule. We may find occasion
to grant equitable tolling when extraordinary circumstances
warrant such relief. However, we simply see no need to depart
from our traditional analysis under the facts of this case. In
conformity with Young, we hold that the lookback period is a
limitations period and is subject to principles of equitable
tolling, just as a statute of limitations would be.
¶45
We have further concluded that the Division was in no
way disabled from pursuing any claim against PacifiCorp, either
through defect of knowledge, in which case the Division might
have obtained equitable relief, or statutory prohibition, in
which case the time period would have been statutorily tolled
under Utah Code section 78-12-41. The Counties ask us to grant
equitable tolling to the Division despite the fact that the
Division unquestionably does not qualify for such relief. It is
undisputed in this case that the Division was disabled neither by
defect of knowledge nor statutory prohibition from protecting its
claims. The Division had sufficient knowledge of the facts
underlying this cause of action well before the limitations
period on issuing an assessment for 1997 had run. The reporting
errors came to light on July 18, 2000, two years before the
lookback period expired. Further, no statute prohibited the
Division from acting. The Division simply failed to timely issue
the escaped property assessment, and thus lost the opportunity to
do so later. The untimely assessment is void.
¶46
While this outcome may seem harsh in that it deprives
the Counties of an opportunity to litigate any claim to the tax
revenue, it is the necessary result of having limitations periods
and the accompanying benefit of finality for which these statutes
were designed. Limitations periods exist to extinguish claims
not acted upon; thus, the loss of a claim occurs every time these
time limits are enforced, and such a loss is simply not a reason
to toll the statutory period absent application of the discovery
rule. See Estes, 1999 UT 52, ¶¶ 6-7.
¶47
The Counties are acting as intervenors, not claimants,
in this action. The proper focus of our equitable tolling
analysis is upon the party who would actually be granted the
equitable relief, not the party who may happen to benefit from
that relief. Thus, we have focused upon whether the Division
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merited equitable tolling under our doctrine, as required by our
prior decisions.
¶48
Because the Division failed to comply within the
lookback period, the Division's authority to issue the assessment
at all was extinguished when the limitations period expired.
Extinguished along with that authority was any third-party claim
to the revenue. That the Counties may be innocent parties
suffering the consequences of the Division's failure to issue a
timely assessment is of no legal consequence in this case and
cannot operate to revive the expired lookback period.
¶49
Were we to hold otherwise, we would effectively
eviscerate any meaningful limitations period for assessing
escaped property taxes against taxpayers. The Division would be
able to assess such taxes at any time, since a third-party
beneficiary to the tax dollars would be able to resuscitate
expired claims in the name of fairness to those third parties.
Taxpaying entities would never be given the repose and finality
the limitations period was designed to provide. Such a rule
defies the express terms of our equitable tolling doctrine and
renders any limitations period on the Division's authority to tax
companies and individuals for past property taxes utterly
meaningless. Thus, we hold that the Commission improperly
considered the limitations period here to be equitably tolled,
thereby allowing the Division to issue a tax assessment after the
statutory period for doing so had expired. Because we vacate the
assessment, all remaining points on appeal concerning the merits
of the Commission's order are now moot.
CONCLUSION
¶50
The Commission misapplied the equitable tolling
doctrine to toll the time period during which the Division may
issue an assessment for escaped property taxes. The Division had
enough information to be on alert that PacifiCorp may have had
some escaped property and to issue an assessment for that
property before the date on which its authority to do so expired.
There were no extraordinary circumstances that would otherwise
justify the extraordinary relief the Counties petition us to
grant the Division. As such, equitable tolling cannot be used to
prolong the time period during which the Division had authority
to issue an additional assessment. The fact that the Counties
suffer prejudice as a result does not serve to extend the period
for the Division to act. The assessment was untimely and is thus
of no effect. We vacate the escaped property tax assessment as
untimely and therefore void, and dismiss all other issues arising
out of the Commission's order as moot.
Nos. 20040236, 20040241
14

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¶51
Justice Durrant, Justice Parrish, and Justice Nehring
concur in Associate Chief Justice Wilkins' opinion.
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DURHAM, Chief Justice, concurring in the result:
¶52
I concur with the result reached by the lead opinion.
However, although I agree that the Commission erred in allowing
equitable tolling in this case, I do not believe our application
of equitable tolling principles to a lookback period should rely
solely on the discovery rule.
¶53
The lead opinion concludes that the Commission's
application of equitable tolling here was improper because the
extraordinary circumstances required for its use are not present.
I agree that this court has generally relied on the discovery
rule when determining whether a statute of limitations may be
tolled. Russell Packard Dev. v. Carson, 2005 UT 14, ¶ 21, 108
P.3d 741; see also Grynberg v. Questar Pipeline Co., 2003 UT 8,
¶ 65, 70 P.3d 1 (observing that this court has relied "almost
exclusively" on the discovery rule when addressing requests to
equitably toll a statute of limitations). This reliance
recognizes that, in a system where a statute of limitations
controls a potential plaintiff's ability to file a cause of
action, the discovery rule balances the equitable interests of
the potential plaintiff and defendant where the potential
plaintiff has "discover[ed] [new] facts forming the basis for the
cause of action." Russell Packard Dev., 2005 UT 14, ¶¶ 21, 26
(internal quotation marks omitted).
¶54
Lookback provisions, however, are not concerned with a
potential plaintiff's ability to bring suit; rather, as the lead
opinion recognizes, they "prescribe[] a period within which
certain rights . . . may be enforced." Young v. United States,
535 U.S. 43, 47 (2002). In Young, the United States Supreme
Court recognized that lookback periods "serve[] the same basic
policies furthered by all limitations provisions: repose,
elimination of stale claims, and certainty about a plaintiff's
opportunity for recovery and a defendant's potential
liabilities." Id. (internal quotation and alteration marks
omitted). It thus concluded that lookback periods are "subject
to traditional principles of equitable tolling." Id.
15
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¶55
In applying equitable principles to the lookback period
at issue in Young, the Court recognized that the balancing of
interests in that context required an examination of why the
party in question failed to enforce its rights within the
statutorily-prescribed period. Id. at 50. Broadly speaking,
this is the same question addressed when a court applies the
discovery rule in a statute of limitations context. In that
context, the court presumes the primary reason a plaintiff would
fail to file a claim earlier is that he was unaware of the facts
necessary to file the claim. The court then goes further to
determine whether the defendant was responsible for concealing
these facts or whether other exceptional circumstances warrant
tolling. Russell Packard Dev., 2005 UT 14, ¶ 26. I do not
believe, however, that the discovery rule adequately serves
equitable principles in the context of the lookback period at
issue here.
¶56
The analysis in Young is instructive on this point,
although, as the lead opinion points out, it is not identical on
its facts; it is nonetheless helpful in what I believe to be a
similar situation. In Young, the Court faced a situation where,
simply because of the structure of federal bankruptcy laws, the
IRS could be prevented from enforcing its rights where a
bankruptcy petitioner filed back-to-back Chapter 13 and Chapter 7
petitions. 535 U.S. at 50. The Court concluded that the
lookback period must be tolled on behalf of the IRS whenever a
petitioner's back-to-back petitions would otherwise preclude the
IRS's claim, "regardless of petitioners' intentions when filing"
these petitions. Id. at 50-51.
¶57
Here, the statutory scheme is similar to that reviewed
in Young in that the Counties, who have a statutorily-recognized
interest in recovering escaped property taxes,1 may be prevented
from receiving the benefit of such taxes whenever the Tax
Division fails to perform the calculation required by the
lookback period to determine whether previously-missing
information resulted in undervaluation of a taxpayer's property.
As in Young, the Counties in such a circumstance may be deprived
of taxes they are entitled to despite their own best efforts to
protect their interests. Indeed, the Commission reasoned that
such was the case here and granted equitable tolling on that
basis.

1 See, e.g., Utah Code Ann. § 59-1-602(2) (2004) ("A county
whose tax revenues are affected by the decision being reviewed
shall be allowed to be a party in interest in the proceeding
before the court.").
Nos. 20040236, 20040241
16

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¶58
However, the scheme at issue here is complicated by the
status of the Counties as intervenors, rather than claimants, and
the involvement of two additional parties--the Tax Division and
PacifiCorp, the taxpayer, rather than only one. The interests of
PacifiCorp must be given significant weight in any equitable
assessment. The Commission concluded that "[t]he hardship for
[PacifiCorp] in defending the escaped property assessment due to
the additional five months [delay in issuing the assessment]
could not be extensive, as [PacifiCorp] knew of the Intervening
Counties Request for Agency Action well in advance of the
expiration of the five year period." I believe, however, in
accord with Young, that equitable tolling should not apply, to
the detriment of the taxpayer, unless the taxpayer itself is
responsible for causing the lookback period to expire before the
Division makes an escaped property determination.2
¶59
Here, there is no indication in the record that any
action by PacifiCorp caused the Division's delay in issuing its
escaped property assessment. The Counties filed their request
with the Commission for an escaped property assessment in July
2001. The Commission decided in April 2002 that the Counties
lacked standing to make this request. The Counties appealed that
decision to this court on May 1, 2002--the date of the lookback
period's expiration. PacifiCorp's intervention in that
proceeding thus occurred after the lookback period's expiration.
The record reveals no other action by PacifiCorp that could be
viewed as causing the Division's delay. Because the Division's
untimely assessment does not appear to be the result of
PacifiCorp's actions, I concur with the lead opinion's conclusion
that equitable tolling was improperly granted.
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2 The Counties suggest that the relevant inquiry is whether
PacifiCorp caused an incorrect assessment in the first instance,
"by providing incomplete or erroneous information." However, the
legislature has already taken into account such initial errors in
its definition of escaped property. See Utah Code Ann. § 59-2-
102(11)(a). Thus, it would be inappropriate to take such factors
into account again when conducting an equitable tolling analysis.
17
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