Keeler v. Department of Revenue, Tc-Md 081111b (or.tax 1-30-2009)

• Court: Oregon Tax Court
• Decided: January 30, 2009
• Docket: TC-MD 081111B.
• Status: Published

Opinion

DECISION OF DISMISSAL This matter is before the court on Defendant's motion to dismiss (motion), filed November 19, 2008, as part of its Answer, requesting that the Complaint be dismissed. At issue are certain credits relating to a mobile home park closure for the 2007 tax year.

A case management conference was held on January 8, 2009. Joanne Worrell participated on behalf of her sister, Kathlyn S. Keeler. Laurie Fery, Tax Auditor, appeared for Defendant.

Defendant mailed its Notice of Proposed Refund Adjustment (Notice) to Plaintiff on June 26, 2008. It became final 30 days later on July 26, 2008. ORS 305.270.¹ From that date, Plaintiff had 90 days to appeal to this court. ORS 305.280(2). Those appeal rights expired October 24, 2008. Plaintiff's Complaint was mailed to this court on November 5, 2008. Plaintiff's representative stated the delay was due, in part, to serious health concerns and other exigent circumstances.

Plaintiff has acknowledged that she postmarked her Complaint to the court more than 90 days after the date the Defendant's Notice became final. See ORS 305.280(2) (2007); McDowell v. Dept. of Rev., TC-MD No 050812C (Nov 28, 2005) (citing ORS305.280(2) and holding that taxpayer's appeal filed three days after the statutory deadline must be dismissed).

The Regular Division of this court issued an Opinion on this matter. InWebb v. Dept. of Rev., 19 OTR 20, 21 (2006) it was held that the: "* * * state statute[] of limitation[] leaves taxpayer no state remedy unless the department is estopped from asserting the bar of ORS 314.415(1)(b)(A)." Here, Plaintiff offers no probative evidence of misleading advice by Defendant prior to filing.

Although this finding may appear unfair, it is consistent with other similar cases decided by this court. Tirrill v. Dept. of Rev., TC-MD No 040694A (Aug 9, 2004); Stubbs v. Dept of Rev., TC-MD No 041047D (Mar 2, 2005).

This court has no equitable authority to waive or modify the statutory deadlines. Because the Complaint was filed after the statutory deadline, the court must grant Defendant's motion. Now, therefore,

IT IS THE DECISION OF THIS COURT that this matter be 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 Magistrate Jeffrey S. Mattson on January30, 2009. The Court filed and entered this document on January 30,2009.

¹ All references to the Oregon Revised Statutes (ORS) are to 2005.