In re: Tax Appeal of Whale Watchers, LLC v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-SEP-2025
09:13 AM
Dkt. 32 ODSLJ

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

In the Matter of the Tax Appeal of
WHALE WATCHERS, LLC, Appellant-Appellant,
v.
STATE OF HAWAI#I, Appellee-Appellee.

APPEAL FROM THE TAX APPEAL COURT
(CASE NO. 1CTX-XX-XXXXXXX)

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Wadsworth, Presiding Judge, McCullen, and Guidry, JJ.)

Upon review of the record, it appears that:
(1) On July 21, 2025, Appellant-Appellant Whale
Watchers, LLC (Whale Watchers) filed the Notice of Appeal from
the Tax Appeal Court's (tax court) July 10, 2025 Final Judgment
and two related orders.1
(a) Whale Watchers' September 8, 2025 statement of
jurisdiction argues, in part, it is not subject to the
requirement in Hawaii Revised Statutes (HRS) § 235-114(a) (Supp.
2024) that a taxpayer shall pay the disputed tax assessment plus

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The two related orders are the June 24, 2025 minute order and the
July 10, 2025 "Order (1) Granting Appellee's Motion to Dismiss Notice of
Appeal to Tax Appeal Court Filed on March 2, 2022, filed on April 17, 2025;
(2) Denying as Moot Appellant Whale Watchers, LLC's Motion to Consolidate
Appeals and Compel the Director of Taxation to Attend and Participate in the
Administrative Appeals and Dispute Resolution Process; and (3) Denying as Moot
Appellant Whale Watchers, LLC's Motion to Admit Robert S. Wilmer Pro Hac
Vice."
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

interest before an appeal can be taken from the tax court's
decision to this court. Whale Watchers asserts "prepayment of
the tax is not required for the first appeal" and in this case
the tax court's "dismissal for lack of jurisdiction should not be
considered the 'first appeal.'"
(b) Appellee-Appellee Director of Taxation, State of
Hawaii's September 8, 2025 statement contesting jurisdiction
argues this court "may lack appellate jurisdiction" because an
appeal from the tax court to this court "is contingent on the
payment of taxes and interest" and Whale Watchers "has not
satisfied this statutorily mandated condition precedent" and
"failed to make the required payment" of assessed general excise
taxes plus interest.
(c) HRS § 232–19 authorizes an aggrieved party to
appeal to this court, "subject to chapter 602, from the decision
of the tax appeal court by filing a written notice of appeal and
depositing the costs of appeal, in the manner required by court
rules, within thirty days after the filing of the decision or
within thirty days after entry of final judgment. . . ." Act 10
(April 10, 2025) (to be codified at HRS § 232–19).
(d) HRS § 602-57(1) (2016) provides this court "shall
have jurisdiction" "[t]o hear and determine appeals from any
court or agency when appeals are allowed by law[.]"
(e) HRS § 235-114(a), which applies to appeals of
general excise tax assessments, HRS § 237-42 (2017), states:
Any person aggrieved by any assessment of the tax or
liability imposed by this chapter may appeal from the
assessment in the manner and within the time hereinafter set
forth. Appeal may be made either to the taxation board of
review or to the tax appeal court. The first appeal to
either the taxation board of review or to the tax appeal
court may be made without payment of the tax assessed.
Either the taxpayer or the assessor may appeal to the tax
appeal court from a decision by the board or to the
intermediate appellate court from a decision by the tax
appeal court; provided that if the decision by the board or
the tax appeal court is appealed by the taxpayer, or the
decision by the board in favor of the department is not
appealed, the taxpayer shall pay the tax assessed plus
interest as provided in section 231-39(b)(4).

(Emphases added.)

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(f) As stated above, HRS § 235-114(a) directs that if
Whale Watchers appeals the tax court's decision to this court,
Whale Watchers "shall pay the tax assessed plus interest[.]"
(g) Whale Watchers does not identify where in the
record it demonstrates compliance with HRS § 235-114(a), and
payment of the "tax assessed plus interest" is a statutory
requirement to appeal the tax court's decision to this court.
See In re Tax Appeal of Lower Mapunapuna Tenants Ass'n, 73 Haw.
63, 69, 828 P.2d 263, 266 (1992) ("The right of appeal is purely
statutory and therefore, the right of appeal is limited as
provided by the legislature and compliance with the method and
procedure prescribed by it is obligatory." (quotation marks and
ellipsis omitted)).
(h) Thus, this court lacks jurisdiction over this
appeal.
(i) When the court "perceive[s] a jurisdictional
defect in an appeal, [it] must, sua sponte, dismiss that appeal."
Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986).
(2) On August 18, 2025, the parties stipulated to
consolidate case numbers CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-
XX-XXXXXXX, and CAAP-XX-XXXXXXX.
(3) On September 1, 2025, Stephen Whittaker filed a
Notice of Withdrawal and Substitution, which we construe as a
motion to withdraw as counsel for Whale Watchers. The motion
notes that Benjamin E. Lowenthal remains as counsel for Whale
Watchers.
Therefore, IT IS ORDERED that the appeal is dismissed
for lack of jurisdiction.
IT IS FURTHER ORDERED that the August 18, 2025
Stipulation to Consolidate Appeals is dismissed as moot.
IT IS FURTHER ORDERED that the September 1, 2025 motion
to withdraw as counsel is granted. The appellate clerk shall end

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Stephen D. Whittaker as a party to this appeal in the Judiciary
Information Management System.
DATED: Honolulu, Hawai#i, September 23, 2025.

/s/ Clyde J. Wadsworth
Presiding Judge

/s/ Sonja M.P. McCullen
Associate Judge

/s/ Kimberly T. Guidry
Associate Judge

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