IN THE OREGON TAX COURT MAGISTRATE DIVISION Property Tax
BROKEN TRAIL LLC, NIKLAS ) GOERTZEN, and DIANE ALLEN, ) ) Plaintiffs, ) TC-MD 240418N ) v. ) ) DESCHUTES COUNTY ASSESSOR, ) ) Defendant. ) DECISION OF DISMISSAL
On May 20, 2024, Plaintiffs appealed the real market value (RMV) of property identified
as account 126548 (subject property) for the 2023-24 tax year. (Compl at 1.) Plaintiffs maintain
that the subject property’s 2023-24 RMV is too low and should be increased. (Id. at 4.)
Defendant moved to dismiss Plaintiffs’ Complaint because Plaintiffs failed to first appeal to the
board of property tax appeals (board), and because Plaintiffs are not aggrieved. (Def’s Mot to
Dismiss at 2-3.) During the case management conference held June 26, 2024, Plaintiffs’
representative raised additional issues that do not appear to fall within this court’s subject matter
jurisdiction. Plaintiffs declined to submit a written response to Defendant’s Motion to Dismiss,
relying instead on their representative’s statements during the case management conference. The
matter is now ready for determination.
I. STATEMENT OF FACTS
For the 2023-24 tax year, Defendant determined that the subject property had an RMV of
$52,000 and placed that value on the tax roll. (Compl at 6.) That was a decrease from the
subject property’s 2022-23 RMV, which was $159,720. (Id.) Plaintiffs take issue with the
decrease in RMV that followed Defendant’s “evaluation” of the subject property in late 2022.
(Id. at 4.) Plaintiffs clarify that the dispute “has nothing to do with taxes[.]” (Id. at 5.) Instead,
DECISION OF DISMISSAL TC-MD 240418N 1 Plaintiffs claim to be aggrieved due to the impact that the RMV reduction had on Plaintiffs’
plans to construct a home on the subject property. (Id.) Specifically, Plaintiffs claim that the
“devaluation” of RMV “is now becoming a high stress point in negotiating the beginnings of
building our home.” (Id.) Plaintiffs believe that the accurate 2023-24 RMV is $168,683 and
request that the court order that change. (Id. at 4.) Defendant denies that the 2023-24 property
tax assessment diminished the subject property’s RMV. (Answer at 2.)
During the case management conference, Plaintiffs alleged that Defendant rezoned the
subject property from a residential lot to a recreation lot.1 (See also Compl at 4 (explaining the
subject property is in an area “with a mix of residential and recreation lots”).) Defendant
disputed that assertion, explaining that it does not have the authority to rezone property and that
Plaintiffs must take up zoning matters with the county’s community development department.
(See also id. at 9 (letter from Community Development Department).) Plaintiffs reaffirmed that
their appeal does not involve a tax dispute, but instead concerns their ability to get a loan as well
as questions from their builders and other interested parties. Plaintiffs explained that they did not
first appeal to the board because they believed the property tax statement instructed them to first
contact Defendant and then appeal to this court. (See also id. at 5 (property tax statement does
not address “appeal for a DEVALUATION of property”) (emphasis in original).)
II. ANALYSIS
The issue presented is whether Defendant’s Motion to Dismiss should be granted.
Specifically, (1) whether Plaintiffs have presented a claim within this court’s subject matter
jurisdiction; (2) whether Plaintiffs are aggrieved; and (3) whether Plaintiffs’ appeal is timely. In
1 When reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may consider “matters outside the pleading, including affidavits, declarations and other evidence.” Work v. Dept. of Rev., 22 OTR 396, 397-98, aff’d, 363 Or 745, 429 P3d 375 (2018).
DECISION OF DISMISSAL TC-MD 240418N 2 considering a motion to dismiss, the court accepts as true facts alleged by Plaintiffs. See Work,
22 OTR at 397-98. The court considers each basis for dismissal in turn.
A. The Court Must Have Subject Matter Jurisdiction Over Each of Plaintiffs’ Claims
Plaintiffs state that this appeal “has nothing to do with taxes” and raise concerns about
zoning and land use permissions. Thus, an initial question is whether this court has jurisdiction
over Plaintiffs’ claims. The tax court is “the sole, exclusive, and final judicial authority for the
hearing and determination of all questions of law and fact arising from tax laws of this state.”
ORS 305.410(1);2 see also Sanok v. Grimes, 294 Or 684, 701, 662 p2d 693 (1983) (the court’s
jurisdiction includes “questions which much be resolved in order to decide taxability or the
amount of tax”). To determine whether a claim arises under the tax laws of this state, the court
considers the nature of the relief requested and “whether the legislature affirmatively located
jurisdiction over [the] claim elsewhere.” Perkins v. Dept. of Rev., 22 OTR 370, 375 (2017).
Claims pertaining to the RMV of property are generally within this court’s subject matter
jurisdiction, and the legally permissible uses of land are relevant to RMV. See OAR 150-308-
0240 (highest and best use of property considers what is legally permissible). However, the
court does not have jurisdiction to change the zoning of property or grant land use permissions.
See, e.g., Curti v. Josephine County Assessor, TC-MD 230087N (Apr 5, 2024) (court cannot
appoint a forest ranger or surveyor to assist taxpayer to qualify parcel for forestland special
assessment); see also ORS 197.805 to 197.855 (establishing and describing land use board of
appeals). Plaintiffs did not cite any specific statutes demonstrating the court’s authority to hear
such issues. To the extent Plaintiffs seek to challenge zoning or land use decisions, those claims
are outside of the court’s jurisdiction and must be dismissed.
2 The court’s references to the Oregon Revised Statutes (ORS) are to 2021.
DECISION OF DISMISSAL TC-MD 240418N 3 B. Plaintiffs Must Be Aggrieved in Their Claims
To appeal to this court, ORS 305.275(1)(a) requires a taxpayer to be “aggrieved by and
affected by an act, omission, order, or determination of” the county assessor. To be “aggrieved,”
a taxpayer must have an “immediate claim of wrong.” See Kaady v. Dept. of Rev., 15 OTR 124
(2000) (holding that a taxpayer was not aggrieved where the assessed value of property was less
than the requested RMV because any change would not impact tax liability; potential harms
unrelated to property tax did not create aggrievement). Generally, for a taxpayer to have an
“immediate claim of wrong,” the alleged RMV of a property must be lower than its maximum
assessed value, such that a reduction in RMV would reduce the property taxes owed. See id. at
124-25; see also 4310 Building LLC v. Multnomah County Assessor, TC-MD 190134G, 2019
WL 4783490 at *3 (Or Tax M Div, Sept 30, 2019) (declining to order RMV reduction based on
taxpayer’s alleged lack of city services where RMV reduction would not reduce tax liability or
have any other “practical effect”).3
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IN THE OREGON TAX COURT MAGISTRATE DIVISION Property Tax
BROKEN TRAIL LLC, NIKLAS ) GOERTZEN, and DIANE ALLEN, ) ) Plaintiffs, ) TC-MD 240418N ) v. ) ) DESCHUTES COUNTY ASSESSOR, ) ) Defendant. ) DECISION OF DISMISSAL
On May 20, 2024, Plaintiffs appealed the real market value (RMV) of property identified
as account 126548 (subject property) for the 2023-24 tax year. (Compl at 1.) Plaintiffs maintain
that the subject property’s 2023-24 RMV is too low and should be increased. (Id. at 4.)
Defendant moved to dismiss Plaintiffs’ Complaint because Plaintiffs failed to first appeal to the
board of property tax appeals (board), and because Plaintiffs are not aggrieved. (Def’s Mot to
Dismiss at 2-3.) During the case management conference held June 26, 2024, Plaintiffs’
representative raised additional issues that do not appear to fall within this court’s subject matter
jurisdiction. Plaintiffs declined to submit a written response to Defendant’s Motion to Dismiss,
relying instead on their representative’s statements during the case management conference. The
matter is now ready for determination.
I. STATEMENT OF FACTS
For the 2023-24 tax year, Defendant determined that the subject property had an RMV of
$52,000 and placed that value on the tax roll. (Compl at 6.) That was a decrease from the
subject property’s 2022-23 RMV, which was $159,720. (Id.) Plaintiffs take issue with the
decrease in RMV that followed Defendant’s “evaluation” of the subject property in late 2022.
(Id. at 4.) Plaintiffs clarify that the dispute “has nothing to do with taxes[.]” (Id. at 5.) Instead,
DECISION OF DISMISSAL TC-MD 240418N 1 Plaintiffs claim to be aggrieved due to the impact that the RMV reduction had on Plaintiffs’
plans to construct a home on the subject property. (Id.) Specifically, Plaintiffs claim that the
“devaluation” of RMV “is now becoming a high stress point in negotiating the beginnings of
building our home.” (Id.) Plaintiffs believe that the accurate 2023-24 RMV is $168,683 and
request that the court order that change. (Id. at 4.) Defendant denies that the 2023-24 property
tax assessment diminished the subject property’s RMV. (Answer at 2.)
During the case management conference, Plaintiffs alleged that Defendant rezoned the
subject property from a residential lot to a recreation lot.1 (See also Compl at 4 (explaining the
subject property is in an area “with a mix of residential and recreation lots”).) Defendant
disputed that assertion, explaining that it does not have the authority to rezone property and that
Plaintiffs must take up zoning matters with the county’s community development department.
(See also id. at 9 (letter from Community Development Department).) Plaintiffs reaffirmed that
their appeal does not involve a tax dispute, but instead concerns their ability to get a loan as well
as questions from their builders and other interested parties. Plaintiffs explained that they did not
first appeal to the board because they believed the property tax statement instructed them to first
contact Defendant and then appeal to this court. (See also id. at 5 (property tax statement does
not address “appeal for a DEVALUATION of property”) (emphasis in original).)
II. ANALYSIS
The issue presented is whether Defendant’s Motion to Dismiss should be granted.
Specifically, (1) whether Plaintiffs have presented a claim within this court’s subject matter
jurisdiction; (2) whether Plaintiffs are aggrieved; and (3) whether Plaintiffs’ appeal is timely. In
1 When reviewing a motion to dismiss for lack of subject matter jurisdiction, the court may consider “matters outside the pleading, including affidavits, declarations and other evidence.” Work v. Dept. of Rev., 22 OTR 396, 397-98, aff’d, 363 Or 745, 429 P3d 375 (2018).
DECISION OF DISMISSAL TC-MD 240418N 2 considering a motion to dismiss, the court accepts as true facts alleged by Plaintiffs. See Work,
22 OTR at 397-98. The court considers each basis for dismissal in turn.
A. The Court Must Have Subject Matter Jurisdiction Over Each of Plaintiffs’ Claims
Plaintiffs state that this appeal “has nothing to do with taxes” and raise concerns about
zoning and land use permissions. Thus, an initial question is whether this court has jurisdiction
over Plaintiffs’ claims. The tax court is “the sole, exclusive, and final judicial authority for the
hearing and determination of all questions of law and fact arising from tax laws of this state.”
ORS 305.410(1);2 see also Sanok v. Grimes, 294 Or 684, 701, 662 p2d 693 (1983) (the court’s
jurisdiction includes “questions which much be resolved in order to decide taxability or the
amount of tax”). To determine whether a claim arises under the tax laws of this state, the court
considers the nature of the relief requested and “whether the legislature affirmatively located
jurisdiction over [the] claim elsewhere.” Perkins v. Dept. of Rev., 22 OTR 370, 375 (2017).
Claims pertaining to the RMV of property are generally within this court’s subject matter
jurisdiction, and the legally permissible uses of land are relevant to RMV. See OAR 150-308-
0240 (highest and best use of property considers what is legally permissible). However, the
court does not have jurisdiction to change the zoning of property or grant land use permissions.
See, e.g., Curti v. Josephine County Assessor, TC-MD 230087N (Apr 5, 2024) (court cannot
appoint a forest ranger or surveyor to assist taxpayer to qualify parcel for forestland special
assessment); see also ORS 197.805 to 197.855 (establishing and describing land use board of
appeals). Plaintiffs did not cite any specific statutes demonstrating the court’s authority to hear
such issues. To the extent Plaintiffs seek to challenge zoning or land use decisions, those claims
are outside of the court’s jurisdiction and must be dismissed.
2 The court’s references to the Oregon Revised Statutes (ORS) are to 2021.
DECISION OF DISMISSAL TC-MD 240418N 3 B. Plaintiffs Must Be Aggrieved in Their Claims
To appeal to this court, ORS 305.275(1)(a) requires a taxpayer to be “aggrieved by and
affected by an act, omission, order, or determination of” the county assessor. To be “aggrieved,”
a taxpayer must have an “immediate claim of wrong.” See Kaady v. Dept. of Rev., 15 OTR 124
(2000) (holding that a taxpayer was not aggrieved where the assessed value of property was less
than the requested RMV because any change would not impact tax liability; potential harms
unrelated to property tax did not create aggrievement). Generally, for a taxpayer to have an
“immediate claim of wrong,” the alleged RMV of a property must be lower than its maximum
assessed value, such that a reduction in RMV would reduce the property taxes owed. See id. at
124-25; see also 4310 Building LLC v. Multnomah County Assessor, TC-MD 190134G, 2019
WL 4783490 at *3 (Or Tax M Div, Sept 30, 2019) (declining to order RMV reduction based on
taxpayer’s alleged lack of city services where RMV reduction would not reduce tax liability or
have any other “practical effect”).3
Defendant contends that Plaintiffs’ Complaint should be dismissed for lack of
aggrievement because Plaintiffs request an increase in RMV, which would not result in any tax
savings to Plaintiffs. Plaintiffs appear to concede this point, admitting that the case “has nothing
to do with taxes.” Instead, Plaintiffs focus on other alleged harms associated with an understated
RMV: their ability to get a loan and respond to questions from their builder. Those harms are
speculative at this point and apart from Plaintiffs’ tax liability. Plaintiffs have therefore failed to
demonstrate that they are aggrieved within the meaning of ORS 305.275(1)(a).
3 In Seneca Sustainable Energy, LLC v. Dept. of Rev., 363 Or 782, 796-97, 429 P3d 360 (2018), the court found taxpayer was aggrieved by the RMV of a property exempt from taxation under the enterprise zone exemption program because the RMV was used to calculate taxpayer’s public benefit contribution for the tax years at issue. The inflated public benefit contribution was a direct pecuniary harm resulting from the RMV. Id. at 798.
DECISION OF DISMISSAL TC-MD 240418N 4 C. Plaintiffs Must Follow the Proper Appeal Process
ORS 305.275(3) and ORS 309.100(2) require a taxpayer challenging RMV to first file an
appeal with the local board before filing an appeal with this court. See also Hopson v. Douglas
County Assessor, TC-MD 230459N, 2024 WL 2160933 (Or Tax M Div, April 26, 2024)
(dismissing claim because taxpayer did not first appeal to the board or qualify for an exception to
this rule). When a taxpayer fails to appeal to the board, this court may nevertheless hear the
appeal if the taxpayer qualifies for one of the two circumstances described in ORS 305.288:
taxpayer must either (1) allege a valuation error greater than or equal to twenty percent on
property used as a dwelling or (2) demonstrate “good and sufficient cause” for failing to pursue
their statutory right of appeal to the board regarding any property type.
The subject property does not qualify for the first circumstance (20 percent error) because
it was bare land and not used as a dwelling. See Shevtsov v. Dept. of Rev., 24 OTR 83, 87 (2020)
(discussing meaning of the term “dwelling” and concluding that “the lack of a structure prevents
the property from qualifying as a ‘dwelling’ within the meaning of” ORS 305.288(1)(a)). The
subject property does not qualify for the second circumstance (good and sufficient cause)
because Plaintiffs have not alleged any facts that might satisfy the standard. At most, it appears
Plaintiffs failed to appeal to the board due to lack of knowledge (misunderstanding the appeal
instructions), which is specifically excluded from the definition of good and sufficient cause.
See ORS 305.288(5)(b)(B) (“good and sufficient cause * * * [d]oes not include inadvertence,
oversight, lack of knowledge, hardship or reliance on misleading information provided by any
person except an authorized tax official providing the relevant misleading information”).
Plaintiffs were required to appeal the subject property’s 2023-24 RMV to the board and have
failed to demonstrate that a circumstance under ORS 305.288 applies.
DECISION OF DISMISSAL TC-MD 240418N 5 III. CONCLUSION
Upon careful consideration, the court grants Defendant’s Motion to Dismiss. The court
lacks subject matter jurisdiction over Plaintiffs’ land use claims; Plaintiffs are not aggrieved in
their 2023-24 RMV claim; and Plaintiffs did not first appeal to the board or demonstrate that
they qualify for a circumstance under ORS 305.288. Now therefore,
IT IS THE DECISION OF THIS COURT that Defendant’s Motion to Dismiss is granted;
Plaintiffs’ appeal for the 2023-24 tax year is dismissed.
Dated this _____ day of September 2024.
If you want to appeal this Decision, file a complaint in the Regular Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your complaint must be submitted within 60 days after the date of this Decision or this Decision cannot be changed. TCR-MD 19 B.
This Decision was signed by Presiding Magistrate Allison R. Boomer and entered on September 6, 2024.
DECISION OF DISMISSAL TC-MD 240418N 6