Rimer v. Dept. of Rev. ( 2018 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Income Tax
COLEEN M. RIMER, )
)
Plaintiff, ) TC-MD 180335R
)
v. )
)
DEPARTMENT OF REVENUE, )
State of Oregon, )
)
Defendant. ) FINAL DECISION OF DISMISSAL1
This matter came before the court on Defendant’s Motion to Dismiss on the grounds that
Plaintiff failed to appeal within the 90 days required by ORS 305.280(2).
Plaintiff appeals Defendant’s Notice of Proposed Refund Adjustment and Offset
(Notice), which was mailed to Plaintiff on May 3, 2018. The Notice became final on June 2,
2018. The Complaint was filed in the Tax Court on September 18, 2019. ORS 305.280(2)2
provides the applicable time for filing an appeal:
“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.”
Plaintiff asserts she was unable to timely appeal Defendant’s Notice because she “was
unable to comprehend the rules” due to PTSD and her age. The court views Plaintiff’s argument
as a request for equitable tolling of the limitation period. In looking at Defendant’s Notice the
court finds the instruction clear:
1
This Final Decision of Dismissal incorporates without change the court’s Decision of Dismissal, signed by
Magistrate Davis and entered December 6, 2018. The court did not receive a statement of costs and disbursements within
14 days after its Decision of Dismissal was entered. See Tax Court Rule–Magistrate Division (TCR–MD) 16 C(1).
2
The court’s references to the Oregon Revised Statutes (ORS) are to 2017.
FINAL DECISION OF DISMISSAL TC-MD 180335R 1
“Appeal to the Oregon Department of Revenue. If you disagree with this
notice, you have the right to appeal. You can either submit a written objection or
request a conference.
*****
“Appeal to the Oregon Tax Court. If you don’t file your appeal with us within
30 days…you must appeal directly to the Magistrate Division of the Oregon Tax
Court. If you didn’t submit a written objection or request a conference, you must
file your appeal within 120 days of the date of our original notice informing you
of the adjustment to your refund.” (Emphasis in original.)
In DeArmond v. Dept. of Rev., 14 OTR 112 (1997), this court stated that equitable tolling is
generally not available to extend a limitations period to file a complaint seeking a refund. The court noted
that prior Supreme Court cases have applied the doctrine of equitable tolling “in only two limited
circumstances”: where the timely filed complaint was defective and when a party was tricked by his/her
adversary. Id. at 117 (citations omitted). Neither of those situations is alleged in this case. Although it is
understandable that Plaintiff’s condition may make it more difficult for her to meet the deadlines for filing
an appeal, the court does not find her situation meets the extraordinary circumstances described above.
Plaintiff’s complaint was untimely and thus Defendant’s Motion to Dismiss is granted. Now, therefore,
IT IS THE DECISION OF THIS COURT that Defendant’s Motion to Dismiss is allowed.
Plaintiff’s appeal is dismissed.
Dated this day of December 2018.
ALLISON R. BOOMER
MAGISTRATE
If you want to appeal this Final Decision of Dismissal, file a complaint in the Regular
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 of the Final Decision of
Dismissal or this Final Decision of Dismissal cannot be changed. TCR-MD 19 B.
This document was signed by Magistrate Allison R. Boomer and entered on December 27,
2018.
FINAL DECISION OF DISMISSAL TC-MD 180335R 2