IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax
RANDALL JOHN CALLISON ) aka Randy J. Callison, ) ) Plaintiff, ) TC-MD 140034N ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant. ) FINAL DECISION
The court entered its Decision in the above-entitled matter on May 20, 2014. The court
did not receive a request for an award of costs and disbursements (TCR-MD 19) within 14 days
after its Decision was entered. On May 21, 2014, Plaintiff filed a Motion to Dismiss Complaint
and Seal Case (Motion). As of the date of this Final Decision, Defendant has not filed a response
to Plaintiff’s Motion. The court’s Final Decision incorporates its Decision of Dismissal without
change and includes the court’s determination of Plaintiff’s Motion in section III.
Plaintiff filed his Complaint on February 4, 2014, challenging Defendant’s Distraint
Warrant issued November 28, 2012, for the 2009 tax year. (Ptf’s Compl at 3.) A case
management conference was held in this matter on March 11, 2014, during which the parties
discussed Plaintiff’s appeal and agreed to file written arguments. The agreed-upon briefing
schedule is now closed and this matter is ready for decision.
///
FINAL DECISION TC-MD 140034N 1 I. STATEMENT OF FACTS
A. Plaintiff’s Arguments in Support of Requested Relief
Plaintiff attached to his Complaint a Distraint Warrant issued November 28, 2012, for the
2009 tax year and a Notice of Abatement issued on August 21, 2012, for the 2009 tax year, the
latter of which states,
“We’ve made changes to your liability based on your contact with the department. Your balance is now zero. Thank you for the information regarding our Notice of Assessment. I am canceling the assessment.”
(Ptf’s Compl at 2.) In his Complaint, Plaintiff requests that Defendant “[r]escind the Distraint
Warrant recorded at Deschutes County” based on the Notice of Abatement “cancelling the
assessment and zero balance.” (Id. at 1.)
Plaintiff asserts that “The Notice of Abatement states without question that based on the
information [Plaintiff] gave [Defendant] that the balance is now zero. * * * The changes to * * *
Plaintiff’s liability resulting in a zero balance can only call for one conclusion, that * * * Plaintiff
had no liability for 2009.” (Ptf’s Corrected Arguments in Opp’n at 1.) Plaintiff’s remaining
arguments question Oregon’s authority to impose an income tax on the wages of residents of this
state. (Id. at 2-3.) Plaintiff argues that the only income that may be taxed under the Internal
Revenue Code is that of “U.S. citizens living and working abroad and nonresident aliens.” (Id. at
3.) Because Oregon begins with federal taxable income to determine Oregon taxable income,
Plaintiff concludes that he is not liable for Oregon income taxes on residents. (Id. at 4.)
B. Defendant’s Arguments
In its Answer and Response to Plaintiff’s Arguments in Opposition, Defendant explained
that, for the 2009 tax year, Defendant issued at least two notices of liability, which Defendant
refers to as “liability 2” and “liability 3.” (Def’s Ans at 1.) Defendant clarified that “liability 3”
FINAL DECISION TC-MD 140034N 2 was abated after it determined that it was a duplicate of “liability 2.” (Def’s Resp to Arguments
in Opp’n at 1.) “Liability 2” was never fully abated, though it was reduced based on Plaintiff’s
Oregon tax withheld in 2009. (See id. at 1-2.) Defendant acknowledged that the wording of its
“form letters” and notices may, at times, cause confusion. (Id. at 3.) To remedy any confusion
in this case, Defendant’s representatives corresponded with Plaintiff on six occasions in 2012
and 2013. (Id.)
1. Liability 2
Defendant wrote that, on his 2009 income tax return, Plaintiff “did not include, as taxable
income, the wages he received from New Seasons Markets but * * * did include the Oregon state
taxes withheld from his wages. He did not include a copy of his W2 from New Seasons Market
to verify the taxes withheld.” (Def’s Ans at 1.) Defendant adjusted Plaintiff’s 2009 return,
adding Plaintiff’s 2009 wages of $29,392 as Oregon taxable income and disallowing “the
claimed taxes withheld because they could not be verified.” (Id.) Based on Defendant’s
adjustments, “[a] deficiency was set up on tax year 2009, liability 2, for the tax owing and
included a $250 frivolous return fee. This deficiency was assessed on February 15, 2011.” (Id.)
On November 19, 2013, Plaintiff “provided a copy of his W2 from New Seasons Market
showing the Oregon taxes withheld from his 2009 wages[,]” so Defendant “added [the
withholding] to [Plaintiff’s] account.” (Id. at 2.)
2. Liability 3
On May 16, 2012, Defendant “received a federal Revenue Agent Report (RAR) from the
IRS showing [it] added taxable income to [Plaintiff’s] 2009 return for wages received from New
Seasons Market. The report was processed [by Defendant] creating a deficiency on tax year
2009, liability 3. This liability was assessed on July 17, 2012.” (Def’s Ans at 1.) On August 21,
FINAL DECISION TC-MD 140034N 3 2012, Defendant issued a Notice of Abatement to Plaintiff for liability 3 based on its realization
that liability 3 “was a duplicate [of] the liability set for tax year 2009, liability 2.” (Id.)
II. ANALYSIS
Plaintiff requests that the court order Defendant to rescind its Distraint Warrant for the
2009 tax year based on the Notice of Abatement, also issued for the 2009 tax year, stating that
the assessment is canceled and the balance is zero. As Defendant acknowledged, the language of
its Notice of Abatement is not as clear as it could be, particularly with respect to identifying the
deficiency that had been abated. Nevertheless, Defendant’s authorized representative provided a
clear explanation to Plaintiff verbally during the case management conference and in writing in
its Answer and Response to Plaintiff’s Arguments in Opposition. The burden of proof falls on
Plaintiff to prove that he, in fact, paid his 2009 Oregon income tax liability. See ORS 305.4271
(“[t]he burden of proof shall fall upon the party seeking affirmative relief”). Plaintiff has not
asserted or offered any evidence that he paid his original Oregon income tax liability owing for
the 2009 tax year, which was assessed based on Plaintiff’s failure to report his Oregon wages.
As a secondary argument, Plaintiff asserts that he is not liable for Oregon income taxes
on his wages because he was neither a U.S. citizen living and working abroad nor a nonresident
alien in 2009. In Ellibee v. Dept. of Rev., 17 OTR 226, 228 (2003), this court addressed
arguments similar to those made by Plaintiff in this case:
“Taxpayer seeks some benefit from the provisions of IRS section 861, and through a convoluted series of arguments, attempts to show that those provisions result in a conclusion that compensation for personal services rendered in Oregon is somehow not subject to taxation. Taxpayer’s conclusion and logic are equally flawed. The idea that individual or multiple provisions of the IRC would result in the conclusion that compensation for personal services paid to a citizen of a state and the United States is not subject to taxation at the federal or state levels is entirely frivolous and without an objective foundation.
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IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax
RANDALL JOHN CALLISON ) aka Randy J. Callison, ) ) Plaintiff, ) TC-MD 140034N ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant. ) FINAL DECISION
The court entered its Decision in the above-entitled matter on May 20, 2014. The court
did not receive a request for an award of costs and disbursements (TCR-MD 19) within 14 days
after its Decision was entered. On May 21, 2014, Plaintiff filed a Motion to Dismiss Complaint
and Seal Case (Motion). As of the date of this Final Decision, Defendant has not filed a response
to Plaintiff’s Motion. The court’s Final Decision incorporates its Decision of Dismissal without
change and includes the court’s determination of Plaintiff’s Motion in section III.
Plaintiff filed his Complaint on February 4, 2014, challenging Defendant’s Distraint
Warrant issued November 28, 2012, for the 2009 tax year. (Ptf’s Compl at 3.) A case
management conference was held in this matter on March 11, 2014, during which the parties
discussed Plaintiff’s appeal and agreed to file written arguments. The agreed-upon briefing
schedule is now closed and this matter is ready for decision.
///
FINAL DECISION TC-MD 140034N 1 I. STATEMENT OF FACTS
A. Plaintiff’s Arguments in Support of Requested Relief
Plaintiff attached to his Complaint a Distraint Warrant issued November 28, 2012, for the
2009 tax year and a Notice of Abatement issued on August 21, 2012, for the 2009 tax year, the
latter of which states,
“We’ve made changes to your liability based on your contact with the department. Your balance is now zero. Thank you for the information regarding our Notice of Assessment. I am canceling the assessment.”
(Ptf’s Compl at 2.) In his Complaint, Plaintiff requests that Defendant “[r]escind the Distraint
Warrant recorded at Deschutes County” based on the Notice of Abatement “cancelling the
assessment and zero balance.” (Id. at 1.)
Plaintiff asserts that “The Notice of Abatement states without question that based on the
information [Plaintiff] gave [Defendant] that the balance is now zero. * * * The changes to * * *
Plaintiff’s liability resulting in a zero balance can only call for one conclusion, that * * * Plaintiff
had no liability for 2009.” (Ptf’s Corrected Arguments in Opp’n at 1.) Plaintiff’s remaining
arguments question Oregon’s authority to impose an income tax on the wages of residents of this
state. (Id. at 2-3.) Plaintiff argues that the only income that may be taxed under the Internal
Revenue Code is that of “U.S. citizens living and working abroad and nonresident aliens.” (Id. at
3.) Because Oregon begins with federal taxable income to determine Oregon taxable income,
Plaintiff concludes that he is not liable for Oregon income taxes on residents. (Id. at 4.)
B. Defendant’s Arguments
In its Answer and Response to Plaintiff’s Arguments in Opposition, Defendant explained
that, for the 2009 tax year, Defendant issued at least two notices of liability, which Defendant
refers to as “liability 2” and “liability 3.” (Def’s Ans at 1.) Defendant clarified that “liability 3”
FINAL DECISION TC-MD 140034N 2 was abated after it determined that it was a duplicate of “liability 2.” (Def’s Resp to Arguments
in Opp’n at 1.) “Liability 2” was never fully abated, though it was reduced based on Plaintiff’s
Oregon tax withheld in 2009. (See id. at 1-2.) Defendant acknowledged that the wording of its
“form letters” and notices may, at times, cause confusion. (Id. at 3.) To remedy any confusion
in this case, Defendant’s representatives corresponded with Plaintiff on six occasions in 2012
and 2013. (Id.)
1. Liability 2
Defendant wrote that, on his 2009 income tax return, Plaintiff “did not include, as taxable
income, the wages he received from New Seasons Markets but * * * did include the Oregon state
taxes withheld from his wages. He did not include a copy of his W2 from New Seasons Market
to verify the taxes withheld.” (Def’s Ans at 1.) Defendant adjusted Plaintiff’s 2009 return,
adding Plaintiff’s 2009 wages of $29,392 as Oregon taxable income and disallowing “the
claimed taxes withheld because they could not be verified.” (Id.) Based on Defendant’s
adjustments, “[a] deficiency was set up on tax year 2009, liability 2, for the tax owing and
included a $250 frivolous return fee. This deficiency was assessed on February 15, 2011.” (Id.)
On November 19, 2013, Plaintiff “provided a copy of his W2 from New Seasons Market
showing the Oregon taxes withheld from his 2009 wages[,]” so Defendant “added [the
withholding] to [Plaintiff’s] account.” (Id. at 2.)
2. Liability 3
On May 16, 2012, Defendant “received a federal Revenue Agent Report (RAR) from the
IRS showing [it] added taxable income to [Plaintiff’s] 2009 return for wages received from New
Seasons Market. The report was processed [by Defendant] creating a deficiency on tax year
2009, liability 3. This liability was assessed on July 17, 2012.” (Def’s Ans at 1.) On August 21,
FINAL DECISION TC-MD 140034N 3 2012, Defendant issued a Notice of Abatement to Plaintiff for liability 3 based on its realization
that liability 3 “was a duplicate [of] the liability set for tax year 2009, liability 2.” (Id.)
II. ANALYSIS
Plaintiff requests that the court order Defendant to rescind its Distraint Warrant for the
2009 tax year based on the Notice of Abatement, also issued for the 2009 tax year, stating that
the assessment is canceled and the balance is zero. As Defendant acknowledged, the language of
its Notice of Abatement is not as clear as it could be, particularly with respect to identifying the
deficiency that had been abated. Nevertheless, Defendant’s authorized representative provided a
clear explanation to Plaintiff verbally during the case management conference and in writing in
its Answer and Response to Plaintiff’s Arguments in Opposition. The burden of proof falls on
Plaintiff to prove that he, in fact, paid his 2009 Oregon income tax liability. See ORS 305.4271
(“[t]he burden of proof shall fall upon the party seeking affirmative relief”). Plaintiff has not
asserted or offered any evidence that he paid his original Oregon income tax liability owing for
the 2009 tax year, which was assessed based on Plaintiff’s failure to report his Oregon wages.
As a secondary argument, Plaintiff asserts that he is not liable for Oregon income taxes
on his wages because he was neither a U.S. citizen living and working abroad nor a nonresident
alien in 2009. In Ellibee v. Dept. of Rev., 17 OTR 226, 228 (2003), this court addressed
arguments similar to those made by Plaintiff in this case:
“Taxpayer seeks some benefit from the provisions of IRS section 861, and through a convoluted series of arguments, attempts to show that those provisions result in a conclusion that compensation for personal services rendered in Oregon is somehow not subject to taxation. Taxpayer’s conclusion and logic are equally flawed. The idea that individual or multiple provisions of the IRC would result in the conclusion that compensation for personal services paid to a citizen of a state and the United States is not subject to taxation at the federal or state levels is entirely frivolous and without an objective foundation. Taxpayer’s particular
1 The court’s references to the Oregon Revised Statutes (ORS) are to 2011.
FINAL DECISION TC-MD 140034N 4 reliance on IRC section 861 is fundamentally flawed because that provision only provides definitions for income sources. Those definitions then are to be applied under IRC sections 871 and 881, in connection with the imposition of tax on nonresident aliens and foreign corporations, respectively. Taxpayer is concededly neither a nonresident alien nor a foreign corporation.”
(Emphasis added.) The court concluded that “the overall result that taxpayer seeks to establish,
tax-free compensation for personal services, is completely and utterly outside the realm of
reasonable thinking and legal reality.” Id. at 229. Similarly, Plaintiff’s argument in this case that
he is not liable for Oregon income taxes on his Oregon-source wages is without merit.
III. PLAINTIFF’S MOTION TO DISMISS COMPLAINT AND SEAL CASE
In his Motion, Plaintiff “move[s] the court to dismiss filed complaint and to request the
sealing of the case.” The court considers Plaintiff’s request to dismiss his complaint as a request
for reconsideration. Under TCR-MD 17 B, “[f]ollowing issuance of a written decision * * * the
[Magistrate Division] will not accept motions for reconsideration * * *[.]” Plaintiff’s request to
dismiss his Complaint must, therefore, be denied.
Plaintiff’s other request is to “seal” this case. State law does not automatically protect
Tax Court records from disclosure or from publication on the internet. Most court records,
including Tax Court records, are open to the public unless a state statute or a court order makes
the record or part of the record confidential. Plaintiff did not identify a statute or rule supporting
his request. As a result, Plaintiff’s request to seal this case must be denied.
IV. CONCLUSION
After careful consideration, the court concludes that Plaintiff has not presented any
evidence or legal argument in support of his requested relief. Plaintiff’s Motion to Dismiss
Complaint and Seal Case is denied. Now, therefore,
FINAL DECISION TC-MD 140034N 5 IT IS THE DECISION OF THIS COURT that Plaintiff’s appeal is denied.
IT IS FURTHER DECIDED that Plaintiff’s Motion to Dismiss Complaint and Seal Case
is denied.
Dated this day of June 2014.
ALLISON R. BOOMER MAGISTRATE
If you want to appeal this Final 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 the Final Decision or this Final Decision cannot be changed.
This document was signed by Magistrate Allison R. Boomer on June 6, 2014. The court filed and entered this document on June 6, 2014.
FINAL DECISION TC-MD 140034N 6