Bly v. Department of Revenue, Tc-Md 090142d (or.tax 8-14-2009) ( 2009 )

DECISION OF DISMISSAL This matter is before the court on its own motion to dismiss.

Plaintiffs filed their Complaint, challenging Defendant's Notice of Deficiency Assessment (Notice), dated December 26, 2008. Defendant's Notice of Deficiency, dated October 24, 2008, stated that "[b]ased on the Federal audit report (IRC Sec 61), your Oregon income is increased as follows:

Forgiveness of Federal Indebtedness * * * $21,717.00." (Def's Answer at 5.) In a letter dated February 26, 2009, Plaintiffs wrote that they concluded Defendant's "calculations" were "incorrect" and "the information they [Defendant] received from the IRS to be incorrect." Plaintiffs timely appealed Defendant's Notice.

A case management conference was held on April 15, 2009. Plaintiff Roger A. Bly (Plaintiff) appeared on behalf of Plaintiffs. At the conclusion of the conference, Plaintiff stated that he would request a transcript from the Internal Revenue Service.

On July 16, 2009, Defendant's representative, Faith Derickson, Tax Auditor, wrote to the court, stating:

"As of this time, the plaintiff has not provided from the IRS the requested Account Transcript for the tax year 2006. The defendant has obtained a copy of the said transcript received 03/27/09. As of that date the transcript shows the adjusted Gross Income, the Taxable Income and the additional tax that was assessed have not been revised since the IRS audit. Therefore, under ORS 305.305 the defendant is unable to make any revision to the Notice of Assessment of Deficiency issued by the Oregon Dept. of Revenue dated 12/26/08 which was based on the IRS audit."

Because Plaintiffs' appeal is challenging the determination of the Internal Revenue Service and that determination, which is the sole basis for Defendant's assessment, remains unchanged, there is no justiciable issue before the court. Now, therefore,

IT IS THE DECISION OF THIS COURT that this matter be dismissed.

Dated this day ___ of August 2009.

If you want to appeal this Decision, file a Complaint in theRegular Division of the Oregon Tax Court, by mailing to: 1163 StateStreet, 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 August 14, 2009. The Court filed and entered this documenton.