Penaloza v. Department of Revenue, Tc-Md 101251b (or.tax 3-30-2011) ( 2011 )

DECISION OF DISMISSAL This matter is before the court on Defendant's motion to dismiss, filed with its Answer on December 20, 2010. Defendant requests that the case be dismissed because Plaintiff failed to appeal within the 90 days required by ORS 305.280. (Answer at 1.) A case management conference was held in this matter on January 20, 2011, during which the parties discussed Defendant's motion to dismiss. The parties agreed that Plaintiff's optional written arguments in response to Defendant's motion to dismiss would be submitted by February 21, 2011, and that Defendant's optional reply would be submitted by March 7, 2011. The court did not receive any further communication from either party.

A review of Plaintiff's materials shows that the Notice of Deficiency Assessment was mailed to Plaintiff on August 9, 2010. The Complaint was filed on November 10, 2010, and postmarked on November 9, 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 ORS 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 to dismiss is granted. Now, therefore,

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

Dated this ___ day of March 2011.

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 date ofthe Decision or this Decision becomes final and cannot be changed. This document was signed by Magistrate Pro Tempore Allison R.Boomer on March 30, 2011. The Court filed and entered this documenton March 30, 2011.