Petrich General Store v. Dept. of Rev. ( 2018 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Tobacco Tax
PETRICH GENERAL STORE )
and TOM PETRICH, )
)
Plaintiffs, ) TC-MD 180333G
)
v. )
)
DEPARTMENT OF REVENUE, )
State of Oregon, )
)
Defendant. ) FINAL DECISION1
This case is ready for decision upon agreement of the parties. Defendant assessed tax,
penalty, and interest after discovering tobacco products for which no invoices were available during
an inspection of Plaintiffs’ store. Plaintiffs appealed, attaching copies of receipts for the tobacco
products to their Complaint. At the case management conference on November 13, 2018, the parties
agreed that the assessment under appeal was for the period ending April 30, 2018. Plaintiffs orally
provided information about the quantities of purchased tobacco products, and Defendant agreed to
cancel its tax, penalties and interest.
Defendant filed a written objection to Plaintiffs’ request for an award of their filing fee.
Defendant’s objection identified reasons the court might exercise discretion not to award costs,
alleging Plaintiffs failed to take reasonable steps to avoid litigation (such as providing Defendant
with copies of the relevant invoices before filing their appeal). Although the court granted Plaintiffs
leave to file a response to that objection, no response was received.
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1
The court’s decision was issued November 16, 2018.
FINAL DECISION TC-MD 180333G 1 of 3
Magistrates have discretionary authority to award costs and disbursements to prevailing
parties under ORS 305.490(2).2 Wihtol I v. Dept. of Rev., 21 OTR 260, 266 (2013). That
authority is limited to what is given by statute; it does not exist at common law. Compton v.
Weyerhaeuser, 302 Or 366, 367, 730 P2d 540 (1986); Wood v. Fitzgerald, 3 Or 568, 583–84
(1870). Therefore, the court only exercises discretion if the party requesting costs is a
“prevailing party.” TCR–MD 16 B.3 In Oregon, unlike some other jurisdictions, plaintiffs who
obtain relief by settlement rather than court order are not prevailing parties. Dar Makkah
Assoc. v. Multnomah County Assessor, TC–MD 180280G, WL 4348334 (Sept 5, 2018).
Here, because Defendant voluntarily gave Plaintiffs their requested relief, Plaintiffs are
not prevailing parties and are not eligible for an award of costs and disbursements under TCR–
MD 16. Now, therefore,
IT IS THE DECISION OF THIS COURT that, based on the agreement of the parties,
Plaintiffs’ appeal is granted. Defendant shall cancel its assessment of tax, penalty, and interest
for the period ending April 30, 2018.
IT IS FURTHER DECIDED that Plaintiffs’ request for their filing fee is denied.
Dated this day of December, 2018.
POUL F. LUNDGREN
MAGISTRATE
If you want to appeal this Final Decision, 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 or this Final Decision cannot be changed. TCR-MD 19 B.
2The court’s references to the Oregon Revised Statutes (ORS) are to 2017.
3
Tax Court Rule – Magistrate Division (TCR–MD)
FINAL DECISION TC-MD 180333G 2 of 3
This document was signed by Magistrate Poul F. Lundgren and entered on
December 12, 2018.
FINAL DECISION TC-MD 180333G 3 of 3