Electronically Filed Supreme Court SCPW-12-0000551 22-JUN-2012 11:37 AM

NO. SCPW-12-0000551

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

ZEPHYR INSURANCE COMPANY, INC., Petitioner,

vs.

THE HONORABLE KARL K. SAKAMOTO, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I; INSURANCE COMMISSIONER; and DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS OF THE STATE OF HAWAI'I, INSURANCE DIVISION, Respondents.

ORIGINAL PROCEEDING (CIVIL No. 10-1-2078-09)

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.

and Circuit Judge Ahn, assigned by reason of vacancy)

Upon consideration of petitioner Zephyr Insurance Company,

Inc.'s petition for a writ of mandamus and the papers in support, it

appears that HRS § 235-114(a) (Supp. 2011) authorizes an appeal to

the tax appeal court from any assessment of income tax or

liability imposed by HRS Chapter 235. HRS § 235-114(c) (Supp.

2011) requires the notice of appeal to be filed in the tax appeal

court "within thirty days subsequent to the date when the notice

of assessment was mailed." The DCCA insurance division's

November 15, 2010 letter on petitioner's tax credit claim -- if

appealable by petitioner pursuant to HRS § 235-114(a), as the respondent judge determined -- was appealable by notice of appeal

filed within thirty days after the letter was mailed. The

November 15, 2010 letter was presumably mailed when it was

written, the time for filing an appeal under HRS § 235-114

expired in 2010, and an appeal to the tax appeal court is now

precluded. The respondent judge's rulings to the contrary were

incorrect. Therefore,

IT IS HEREBY ORDERED that the answer provision of HRAP

21(c) is suspended pursuant to HRAP 2.

IT IS FURTHER ORDERED that the petition for a writ of

mandamus is granted. The respondent judge shall set aside the

stay of Civil No. 10-1-2078-09 and shall proceed to hear and

dispose of petitioner's agency appeal.

DATED: Honolulu, Hawai'i, June 22, 2012. /s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Karen S.S. Ahn