Johnson v. Dept. of Revenue, Tc-Md 091183b (or.tax 12-15-2009)

Oregon Tax Court

Johnson v. Dept. of Revenue, Tc-Md 091183b (or.tax 12-15-2009)

DecidedDecember 15, 2009

DocketTC-MD 091183B.

StatusPublished

This text of Johnson v. Dept. of Revenue, Tc-Md 091183b (or.tax 12-15-2009) (Johnson v. Dept. of Revenue, Tc-Md 091183b (or.tax 12-15-2009)) is published on Counsel Stack Legal Research, covering Oregon Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Johnson v. Dept. of Revenue, Tc-Md 091183b (or.tax 12-15-2009), (Or. Super. Ct. 2009).

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Opinion

DECISION Plaintiff appeals concerning certain personal income tax matters for the 2008 tax year. At issue is the calculation of an Earned Income Credit (EIC).

A case management conference was held September 29, 2009. Sharon K. Johnson appeared on her own behalf. Jared Houser, Tax Auditor, represented Defendant. Written information was later filed; the record closed November 4, 2009.

I. STATEMENT OF FACTS Plaintiff timely submitted a 2008 Oregon Form 40. On the return, she claimed an Oregon EIC of $551. Defendant reviewed the return and determined Plaintiff was entitled to a smaller Oregon EIC of $17. A Notice of Deficiency Assessment, dated May 7, 2009, asserted an additional tax to pay of $327.

At the case management conference, Plaintiff agreed to submit a copy of her 2008 Federal return to aid in the computation comparisons. A copy of the original return was not later filed.

II. ANALYSIS The Oregon EIC is 6 percent of the federal EIC. ORS 315.266.¹ Taken directly from the 2008 W-2 wage information, Plaintiff's total earned income was $9,252 (rounded). Based on the *Page 2 2009 U.S. Master Tax Guide, the federal EIC correctly computed is $276. (Def's Answer at 3.) For Oregon, when multiplied by 6 percent, the correct EIC becomes $17. That amount Defendant has allowed.

Plaintiff has the burden of proof and must establish her case by a "preponderance" of the evidence. See ORS 305.427. A "[p]reponderance of the evidence means the greater weight of evidence, the more convincing evidence." Feves v. Dept. of Revenue, 4 OTR 302, 312 (1971). "[I]f the evidence is inconclusive or unpersuasive, the taxpayer will have failed to meet [her] burden of proof." Reed v. Dept. of Rev., 310 Or 260, 265,798 P2d 235 (1990). Plaintiff in this case has not met that statutory requirement. Accordingly, her appeal must be denied.

III. CONCLUSION Plaintiff's 2008 Oregon tax return overstated the EIC to which she was entitled. Defendant's calculations are correct. Now, therefore,

IT IS THE DECISION OF THIS COURT that the appeal is denied.

Dated this ___ day of December 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 Magistrate Jeffrey S. Mattson on December15, 2009. The Court filed and entered this document on December 15,2009.

¹ All references to the Oregon Revised Statutes (ORS) are to 2007. *Page 1

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DECISION Plaintiff appeals concerning certain personal income tax matters for the 2008 tax year. At issue is the calculation of an Earned Income Credit (EIC).

A case management conference was held September 29, 2009. Sharon K. Johnson appeared on her own behalf. Jared Houser, Tax Auditor, represented Defendant. Written information was later filed; the record closed November 4, 2009.

I. STATEMENT OF FACTS Plaintiff timely submitted a 2008 Oregon Form 40. On the return, she claimed an Oregon EIC of $551. Defendant reviewed the return and determined Plaintiff was entitled to a smaller Oregon EIC of $17. A Notice of Deficiency Assessment, dated May 7, 2009, asserted an additional tax to pay of $327.

At the case management conference, Plaintiff agreed to submit a copy of her 2008 Federal return to aid in the computation comparisons. A copy of the original return was not later filed.

II. ANALYSIS The Oregon EIC is 6 percent of the federal EIC. ORS 315.266.¹ Taken directly from the 2008 W-2 wage information, Plaintiff's total earned income was $9,252 (rounded). Based on the *Page 2 2009 U.S. Master Tax Guide, the federal EIC correctly computed is $276. (Def's Answer at 3.) For Oregon, when multiplied by 6 percent, the correct EIC becomes $17. That amount Defendant has allowed.

Plaintiff has the burden of proof and must establish her case by a "preponderance" of the evidence. See ORS 305.427. A "[p]reponderance of the evidence means the greater weight of evidence, the more convincing evidence." Feves v. Dept. of Revenue, 4 OTR 302, 312 (1971). "[I]f the evidence is inconclusive or unpersuasive, the taxpayer will have failed to meet [her] burden of proof." Reed v. Dept. of Rev., 310 Or 260, 265,798 P2d 235 (1990). Plaintiff in this case has not met that statutory requirement. Accordingly, her appeal must be denied.

III. CONCLUSION Plaintiff's 2008 Oregon tax return overstated the EIC to which she was entitled. Defendant's calculations are correct. Now, therefore,

IT IS THE DECISION OF THIS COURT that the appeal is denied.

Dated this ___ day of December 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 Magistrate Jeffrey S. Mattson on December15, 2009. The Court filed and entered this document on December 15,2009.

¹ All references to the Oregon Revised Statutes (ORS) are to 2007. *Page 1

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Johnson v. Dept. of Revenue, Tc-Md 091183b (or.tax 12-15-2009), Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-dept-of-revenue-tc-md-091183b-ortax-12-15-2009-ortc-2009.

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