Fleming v. Department of Revenue, Tc-Md 090369d (or.tax 5-29-2009)

• Court: Oregon Tax Court
• Decided: May 29, 2009
• Docket: TC-MD 090369D.
• Status: Published

Opinion

DECISION OF DISMISSAL This matter is before the court on Defendant's motion to dismiss filed April 14, 2009, in its Answer, alleging that Plaintiffs failed to file their appeal within the 90 days required by ORS 305.280(2).¹

A case management conference was held Wednesday, May 13, 2009. Morgan Fleming (Plaintiff) appeared on Plaintiffs' behalf. Maribel #3930, Tax Auditor, appeared on behalf of Defendant.

The parties agree that Defendant's Notice of Deficiency Assessment (Notice) was dated November 25, 2008. Plaintiffs' Complaint was hand delivered March 25, 2009. 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."

Plaintiffs had 90 days from the date of the Notice to file their appeal. Plaintiffs' 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 stated that he called Defendant on February 24, 2009, and was advised he had 120 days to file an appeal. Plaintiff did not know the name of person with whom he spoke. Defendant responded that there was no computer entry on Plaintiffs' tax account referencing the telephone call. Plaintiff was told that he could pay the assessment and file a request for refund with Defendant or file a complaint. Defendant's representative stated that doubtful liability forms are available on its website.

Plaintiffs failed to file their appeal in the court within 90 days after the date of Defendant's Notice. 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. Plaintiffs' Complaint is dismissed.

Dated this _____ day of May 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 on May29, 2009. The Court filed and entered this document on May 29, 2009.

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