Gutierrez-Acuna v. Department of Revenue, Tc-Md 100062d (or.tax 5-12-2010) ( 2010 )

DECISION OF DISMISSAL This matter is before the court on Defendant's motion to dismiss (motion), ¹ on the ground that Plaintiffs failed to appeal within the 90 days required by ORS 305.280(2).

A case management conference was held April 26, 2010. Donna J. Grove, Licensed Tax Consultant appeared on behalf of Plaintiffs. Kevin Cole, Tax Auditor, appeared on behalf of Defendant.

The parties and the court reviewed Defendant's Answer. Defendant's Answer states that the Notice of Refund Denial was issued to Plaintiffs on October 19, 2009. The Complaint was postmarked February 4, 2010. That interval is longer than the 90 days required by ORS 305.280(2) (2009), 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."

The court is not aware of any circumstances that extend the statutory limit of 90 days. Defendant's motion is granted. Now, therefore,

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

Dated this ___ day of May 2010.

If you want to appeal this Decision, file a Complaint in theRegular Division of the Oregon Tax Court, by mailing to:1163 State Street, Salem, OR 97301-2563; or by hand delivery to:Fourth Floor, 1241 State Street, Salem, OR. Your Complaint must be submitted within 60 days after the dateof the Decision or this Decision becomes final and cannot bechanged. This document was signed by Presiding Magistrate Jill A.Tanner on May 12, 2010. The Court filed and entered this documenton May 12, 2010.

¹ Contained in its Answer filed April 1, 2010.