Hernlein v. Department of Revenue, Tc-Md 101336c (or.tax 3-31-2011) ( 2011 )

DECISION OF DISMISSAL This matter is before the court on Defendant's Motion to Dismiss (Motion), filed January 20, 2011, asserting Plaintiffs' Complaint for the 2009 tax year was filed after the statutory deadline and that the court should therefore grant Defendant's Motion and dismiss the Complaint. Defendant cites ORS 305.280 and ORS 305.265.

The court discussed the Motion with the parties at a telephone case management hearing March 28, 2011. Plaintiffs both appeared for that hearing. Defendant was represented by Faith Derickson, an auditor with the Oregon Department of Revenue.

Plaintiffs acknowledge that the dates in Defendant's Motion are accurate. Specifically, Defendant issued a "Notice of Assessment of Deficiency" on September 14, 2010. (Def's Motion at 1, 2.) Plaintiffs' Complaint was postmarked December 14, 2010, and filed with the court December 16, 2010.

ORS 305.280(2)¹ provides in relevant part that "[a]n appeal * * * from any notice of assessment * * * shall be filed within 90 days after the date of the notice." Plaintiffs' 90-day appeal deadline under that statute was December 13, 2010. Plaintiffs missed the deadline by one day (based on the postmark date). ORS 305.265(14) provides in relevant part that "[a]ssessments and billings of taxes shall be final after the expiration of the appeal period specified in ORS 305.280, except to the extent that an appeal is allowed under ORS 305.280(3) following payment of the tax."

There was discussion about Plaintiffs' options to either pursue relief under the "doubtful liability" provisions of ORS 305.295 and/or proceeding under ORS 305.280(3), the latter of which requires payment of the tax and then gives the taxpayers two years to file an appeal with this court. 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 dateof the Decision or this Decision becomes final and cannot bechanged. This document was signed by Magistrate Dan Robinsonon March 31, 2011. The Court filed and entered this documenton March 31, 2011.

¹ All references to the Oregon Revised Statutes (ORS) are to 2009.