Steimle v. Dept. of Rev.

22 Or. Tax 304

Opinion

304 October 25, 2016 No. 32

IN THE OREGON TAX COURT REGULAR DIVISION

Daniel E. STEIMLE, Plaintiff, v. DEPARTMENT OF REVENUE, Defendant. (TC 5277) Plaintiff (taxpayer) filed a complaint in the Regular Division, seeking to appeal a Magistrate Division decision. Defendant Department of Revenue (the department) moved to dismiss the complaint as taxpayer had neither paid the tax, interest, and penalty, or alleged an undue hardship would result from doing so under ORS 305.419. At the hearing on the motion, taxpayer conceded that pay- ment would not be an undue hardship. Taxpayer instead argued that the statute requiring payment did not apply in the case because the Magistrate Division had not reached the merits of taxpayer’s case before dismissing it. Granting the department’s motion, the court ruled that the statute did apply to the case and that taxpayer had been required to pay the amounts due upon filing the complaint.

Oral argument on Defendant’s Response to Plaintiff’s Trial Brief and Defendant’s Motion for Summary Judgment was held October 25, 2016, in the courtroom of the Oregon Tax Court, Salem. Dale R. Kennedy, Attorney at Law, Salem, appeared and argued the cause for Plaintiff (taxpayer). James C. Wallace, Senior Assistant Attorney General, Department of Justice, Salem, filed the motion and argued the cause for Defendant Department of Revenue. Decision for Defendant rendered October 25, 2016. HENRY C. BREITHAUPT, Judge. This matter comes before the court on Defendant’s Motion to Dismiss. Defendant Department of Revenue (the department) argued that dismissal is warranted because Plaintiff (taxpayer) failed to pay the tax, interest, and pen- alty on or before filing his complaint in the Regular Division as required by ORS 305.419. Cite as 22 OTR 304 (2016) 305

Taxpayer did not contest that he failed to pay the amount due. In addition, taxpayer conceded at the hearing that it would not be an undue hardship to pay the amount due. Rather, taxpayer argued that ORS 305.419 does not apply to this case because the magistrate did not reach the merits of taxpayer’s case before dismissing it. The court concludes that ORS 305.419 does apply to this case. Therefore, taxpayer was required to either allege undue hardship, or pay the tax, interest, and penalty. Counsel for the department is directed to prepare and sub- mit an appropriate form of judgment. Now, therefore, IT IS ORDERED that Defendant’s Motion to Dismiss is granted.