El Mansy v. Multnomah County Assessor ( 2018 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
A. EL MANSY, )
)
Plaintiff, ) TC-MD 180169R
)
v. )
)
MULTNOMAH COUNTY ASSESSOR, )
) ORDER DISMISSING
Defendant. ) ACCOUNT R108705
This matter came before the court on Defendant’s Motion to Dismiss filed on May 18,
2018. Plaintiff filed its response on May 29, 2018. Defendant filed a reply on June 11, 2018, to
which Plaintiff filed an additional reply brief on June 28, 2018. Because this case is at the
pleadings stage “the court assumes that all of the well-pleaded facts in [the] taxpayer’s complaint
are true.” Buras v. Dept. of Rev., 17 OTR 282, 284 (2004).
I. STATEMENT OF FACTS
Plaintiff purchased a home with an adjacent lot in Portland in March 2018, 58 days after
the deadline to file an appeal with the Board of Property Tax Appeals (BOPTA). Plaintiff filed
an appeal to the Magistrate Division on April 16, 2018, requesting the Real Market Value of the
purchased property to be reduced from $1,467,370 to $940,000—a difference of 35.94 percent.
The properties in question consist of two tax accounts located adjacent to one another. The first
account, R108705, is an unimproved vacant lot. The second account, R108709, contains a house
and other related improvements such as patios and yard landscaping. Plaintiff purchased the two
accounts as part of a single transaction.
In response to Plaintiff’s Complaint, Defendant filed a Motion to Dismiss account
R108705 on the grounds that Plaintiff failed to file a timely appeal with BOPTA before filing an
ORDER DISMISSING ACCOUNT R108705 TC-MD 180169R 1
appeal with the Magistrate Division and that Plaintiff has failed to show good and sufficient
cause for failing to file an appeal with BOPTA.
II. ANALYSIS
The first issue before the court: are the two tax accounts a single economic unit, with tax
account R108709 supporting R108705, eligible for the 20 percent rule found in ORS
305.288(1)(b)1? The second issue before the court: does purchasing a tax lot after the BOPTA
deadline has passed constitute a good and sufficient cause for not timely appealing to BOPTA
under ORS 305.288(3), (5)(b)?
Oregon has a structured appeals system for taxpayers to follow when challenging the
values assessed on their property. The first step is to file an appeal with the local county BOPTA
by December 31 of the current tax year. ORS 309.100. If the taxpayer is aggrieved by the
BOPTA order they may appeal to the Tax Court within 30 days of that order. ORS 305.280(4).
If a taxpayer does not timely appeal to BOPTA the court may still consider an appeal under ORS
305.288. This court has described ORS 305.288 as providing:
“two additional routes to relief: a taxpayer may allege an error of at least twenty
percent in the value of a residential dwelling (the twenty percent error exception),
or a taxpayer may, if that taxpayer has no other statutory right of appeal
remaining, provide a ‘good and sufficient cause,’ determined by the court, for the
failure to pursue the statutory right of appeal (the good and sufficient cause
exception). If a taxpayer meets the requirements of either exception, the Tax
Court may order a change or correction to an assessment or the tax roll. Both
exceptions allow the Tax Court to make changes for ‘the current tax year and for
either of the two tax years immediately preceding the current tax year.’ ORS
305.288(1), (3).”
Zervis v. Dept. of Rev., 20 OTR 79, 83 (2010) (footnote omitted).
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1
The court’s references to the Oregon Revised Statutes (ORS) are to 2015.
ORDER DISMISSING ACCOUNT R108705 TC-MD 180169R 2
A. Single Economic Unit
Plaintiff contends that the subject property creates one economic unit which meets the
criteria established in ORS 305.288, thus allowing him to challenge the county assessor’s
valuation despite missing deadline to appeal to BOPTA. ORS 305.288(1) provides that even if a
taxpayer has not timely appealed from a BOPTA order, the tax court may order a change to the
assessment and tax roll if:
“(a) For the tax year to which the change or correction is applicable, the property
was or is used primarily as a dwelling (or is vacant) and was and is a single-
family dwelling, a multifamily dwelling of not more than four units, a
condominium unit, a manufactured structure or a floating home.”
ORS 305.288(1)(a) (emphasis added).
Plaintiff must show that the property is and was used primarily as a dwelling. Clearly the
Complaint shows account R108709, which contains a house and related improvements, meets
definition of a single-family dwelling that was used primarily as a dwelling. Tax account
R108705, an undeveloped lot, does not by itself meet the definition.
The court in Cascade Funding Group, LLC v. Deschutes County Assessor, TC-MD
110206C, 2012 WL 3055569 (Or Tax M Div July 26, 2012) considered whether 20
condominium units designed for recreational vehicle storage should be evaluated separately or as
one economic unit. The court explained that although somewhat ambiguous in both statute and
case law “the determining factor in deciding whether to appraise tax lots individually or as one
economic unit is the concept of highest and best use.” Cascade Funding, 2012 WL 3055569 at
*3. The court further explained that the “[h]ighest and best use of an improved property is the
use that is legally permissible, physically possible, appropriately supported, financially feasible,
and that results in the highest value.” Id. (citations omitted).
Applying the test of highest and best use to the case at hand, it is hard to see how an
ORDER DISMISSING ACCOUNT R108705 TC-MD 180169R 3
unimproved vacant lot in a residential neighborhood is the highest and best use of R108705.
Despite being adjacent, Plaintiff presents no facts to suggest that R108705 and R108709 are
connected in any way that would prevent R108705 from being sold or developed independently
from R108709. Indeed, it is plausible to see how R108705 developed independently is legally
permissible, physically possible, and financially feasible way to result in the highest value.
Plaintiff does not provide evidence to refute that the lots, despite common ownership, are
independent parcels of property. Plaintiff contends that because the sale of the two adjacent
parcels was one transaction, the parcels should be considered one unit. However, the test is the
concept of highest and best use, not adjacent and part of a single transaction. Plaintiff fails to
point to any authority that justifies their interpretation.
Plaintiff cites to the language in ORS 310.160 (units of property; description necessary to
determine if amount of taxes exceeds 1990 Measure 5 limits) as a definition of how a unit of
property is defined. That statute states “the unit of property to be considered shall consist of all
contiguous property within a single code area in the county under common ownership that is
used and appraised for a single integrated purpose, whether or not that property is taxed as a
single account or multiple accounts.” ORS 310.160. True, Plaintiff’s property is contiguous
within a single code area in the county under common ownership; but Plaintiff fails to prove that
the property is used for a single integrated purpose. Again, it is difficult to see how an
unimproved vacant lot and a developed home are part of single integrated purpose. The court
finds that account R108705 does not meet the rule allowing Plaintiff to appeal by alleging a 20
percent error as required in ORS 305.288(1)(b).
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ORDER DISMISSING ACCOUNT R108705 TC-MD 180169R 4
B. Good and Sufficient Cause
Plaintiff next contends that by purchasing the property after the BOPTA deadline had
passed Plaintiff has good and sufficient cause. Plaintiff purchased a home with an adjacent lot in
Portland in March of 2018—58 days after the BOPTA deadline to file a property tax appeal. The
test of good and sufficient cause is laid out in ORS 305.288(3),(5)(b):
“The tax court may order a change or correction applicable to a separate
assessment of property to the assessment or tax roll for the current tax year and
for either of the two tax years immediately preceding the current tax year if, for
the year to which the change or correction is applicable, the assessor or taxpayer
has no statutory right of appeal remaining and the tax court determines that good
and sufficient cause exists for the failure by the assessor or taxpayer to pursue the
statutory right of appeal.”
“Good and sufficient cause:
(A) Means an extraordinary circumstance that is beyond the control of the
taxpayer, or the taxpayer’s agent or representative, and that causes the taxpayer,
agent or representative to fail to pursue the statutory right of appeal; and
(B) Does not include inadvertence, oversight, lack of knowledge, hardship or
reliance on misleading information provided by any person except an authorized
tax official providing the relevant misleading information.”
Plaintiff clearly meets the first test: no statutory right of appeal remains available.
Plaintiff argues that he purchased the property after the BOPTA deadline and “the new owner
has no other recourse than to file these type[s] of appeals to collect the overpayment of the tax.”
(Ptf’s Reply at 2.) However, Plaintiff has not provided sufficient authority to show that
purchasing property after the deadline to appeal to BOPTA is an extraordinary circumstance
beyond the control of the taxpayer. The court in Zervis faced the issue of “[w]hen the appealing
taxpayer is not the owner of the property for the tax year at issue” which party must show good
and sufficient cause for failing to timely pursue the statutory right of appeal. Zervis, 20 OTR at
84. In that case the court held that the court will look to the prior owner for the “good and
sufficient cause.” Id. In this case Plaintiff did not present any evidence to demonstrate that the
ORDER DISMISSING ACCOUNT R108705 TC-MD 180169R 5
prior owners of the property had good and sufficient cause for failing to timely appeal to
BOPTA. Thus, Plaintiff has not demonstrated a right to relief with respect to account R108705.
III. CONCLUSION
The court concludes that Plaintiff has no statutory basis for appeal of the 2017-18 tax
assessment for account R108705 under ORS 305.275, and their appeal does not meet the
requirements of any exception under ORS 305.288. Now, therefore,
IT IS ORDERED that Defendant’s Motion to Dismiss is granted with respect to account
R108705.
IT IS FURTHER ORDERED that trial on account R108709 will remain as previously
scheduled.
Dated this day of August 2018.
RICHARD DAVIS
MAGISTRATE
This interim order may not be appealed. Any claim of error in regard to this
order should be raised in an appeal of the Magistrate’s final written decision
when all issues have been resolved. ORS 305.501.
This document was signed by Magistrate Davis and entered on August 15, 2018.
ORDER DISMISSING ACCOUNT R108705 TC-MD 180169R 6