Devore v. Department of Revenue, Tc-Md 081075c (or.tax 1-23-2009)

• Court: Oregon Tax Court
• Decided: January 23, 2009
• Docket: TC-MD 081075C.
• Status: Published

Opinion

DECISION OF DISMISSAL This matter is before the court on Defendant's motion to dismiss filed November 13, 2008, in its Answer, alleging that Plaintiff failed to file her appeal within the 90 days required by ORS 305.280(2).¹

A case management conference was held Monday, January 12, 2009. Plaintiff appeared on her own behalf. Laurie Fery, Tax Auditor, appeared on behalf of Defendant.

The parties agree that Defendant's Notice of Deficiency Assessment (Notice) was dated July 22, 2008. Plaintiff's Complaint was postmarked October 21, 2008. That interval is longer than the 90 days allowed by ORS 305.280(2), which provides:

"An appeal under ORS 323.416 or 323.623 or from any notice of assessment or refund denial issued by the Department of Revenue with respect to a tax imposed under ORS chapter 118, 308, 308A, 310, 314, 316, 317, 318, 321 or this chapter, or collected pursuant to ORS 305.620, shall be filed within 90 days after the date of the notice. An appeal from a proposed adjustment under ORS 305.270 shall be filed within 90 days after the date the notice of adjustment is final."

Defendant's Notice denying Plaintiff's refund request was final October 20, 2008. Plaintiff had 90 days from the date the Notice was final to file her appeal. Plaintiff's appeal was filed more than 90 days after that date. The court is not aware of any circumstance that extends the statutory limit of 90 days.

Plaintiff alleges that no one told her that the appeal must be filed within 90 days of the time Defendant's Notice was final. Plaintiff stated that she mailed it "three months" after she received the Notice. She was busy and unaware that she needed to file her appeal 90 days, rather than 3 months, after receipt of the Notice.

Defendant responded to Plaintiff's questions concerning part-year resident status. Plaintiff stated that she plans to file an amended state income tax return to resolve that issue. Defendant provided her fax number and stated that she would file Plaintiff's amended income tax return when received.

Plaintiff failed to file her appeal in the court within 90 days after Defendant's Notice was final. Unfortunately, the statutory limit cannot be extended. Defendant's motion is granted. Now, therefore,

IT IS THE DECISION OF THIS COURT that Defendant's motion to dismiss is allowed. Plaintiff's Complaint is dismissed.

Dated this ___ day of January 2009.

If you want to appeal this Decision, file a Complaint in the RegularDivision of the Oregon Tax Court, by mailing to: 1163 State Street,Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 StateStreet, Salem, OR. Your Complaint must be submitted within 60 days after the date of theDecision or this Decision becomes final and cannot be changed. This document was signed by Presiding Magistrate Jill A. Tanner onJanuary 23, 2009. The Court filed and entered this document on January23, 2009.

¹ References to the Oregon Revised Statutes (ORS) are to year 2007.