Shevtsov v. Dept. of Rev. , 24 Or. Tax 83 ( 2020 )

No. 5 March 4, 2020 83
IN THE OREGON TAX COURT
REGULAR DIVISION
Alexsandr SHEVTSOV,
Plaintiff,
v.
DEPARTMENT OF REVENUE
and Clackamas County Assessor,
Defendants.
(TC 5392)
Taxpayer appealed the Magistrate Division’s dismissal of his complaint as
untimely. On a motion to dismiss the complaint in the Regular Division, the court
upheld the magistrate’s dismissal. The magistrate had correctly determined that
taxpayer filed his complaint one day after the regular filing deadline. Taxpayer
argued that the extended filing deadline for certain property containing a “dwell-
ing” applied under ORS 305.288(1)(a), but the court held that the extended filing
deadline did not apply because the property lacked a fixed building or structure.
Submitted on Defendant-Intervenor’s Motion to Dismiss.
Kathleen J. Rastetter, Clackamas County Counsel,
Oregon City, filed the motion for Defendant-Intervenor
Clackamas County Assessor.
Plaintiff Aleksandr Shevtsov filed the response pro se.
Decision for Defendants rendered March 4, 2020.
ROBERT T. MANICKE, Judge.
Plaintiff (taxpayer) appeals from a Magistrate
Division decision dismissing his complaint as untimely.
Defendant-Intervenor (the “Assessor”) has moved to dismiss
the complaint in this division of the court as well, on the
grounds that (1) the magistrate correctly determined that
the complaint in the Magistrate Division was untimely
filed; (2) taxpayer likewise filed his complaint in this divi-
sion untimely; and (3) taxpayer is ineligible for relief from
the filing deadline in either division of the court because his
property is not within the definition of a “dwelling” as that
term is used in ORS 305.288.1
1
References to the Oregon Revised Statutes (ORS) are to the 2017 edition.
References to court rules are to those in effect for 2019.
84 Shevtsov v. Dept. of Rev.
The court starts with the Assessor’s second asser-
tion, that the complaint in this division was untimely. The
court finds no evidence supporting the Assessor’s assertion.
The Magistrate Division entered its Decision of Dismissal on
August 5, 2019. ORS 305.501(5)(a) requires any party appeal-
ing a Magistrate Division decision to file a complaint in the
Regular Division “within 60 days after the date of entry of
the [magistrate’s] written decision.” Although, according to
Tax Court Rule (TCR) 9 B(5), “filing” of a paper document
such as taxpayer’s complaint generally occurs when the court
receives the document and “endorses or stamps” it with the
date and time of receipt, ORS 305.418 overrides that rule and
deems a complaint sent by the United States Postal Service
to have been filed on the date shown on the postmark. The
postmark on the envelope containing taxpayer’s complaint in
this division shows that he mailed it on October 4, 2019, the
60th day. Taxpayer’s complaint in this division is timely.
The court agrees with the Assessor, however, that
taxpayer’s complaint in the Magistrate Division was not
timely. Under ORS 305.280(4), taxpayer was required to file
his complaint in the Magistrate Division “within 30 days
after the date of * * * the date of mailing of the order [of a
county board of property tax appeals].” This case involves
two property tax accounts, and thus two such orders. Both
were mailed on March 12, 2019. The 30th day after March
12 was April 11. Taxpayer mailed his complaint to the
Magistrate Division on April 12, 2019, as shown on the post-
mark on the envelope. April 11, 2019, was a Thursday and
was not a holiday. As the magistrate concluded, taxpayer
filed his complaint in the Magistrate Division one day late.2
Finally, the court addresses taxpayer’s claim for
relief from the regular filing deadline in the Magistrate Div-
ision based on subsection (1) of ORS 305.288.3 Subsection (1)
2
Plaintiff asks the court to add three days to the filing deadline because he
mailed his complaint to the court. This argument fails because the rule that adds
three days to the deadline, by its plain terms, “does not apply to the period for
filing a complaint in the Magistrate Division * * *.” Tax Court Rule-Magistrate
Division 3 A(3).
3
A separate provision in the same statute, subsection (3), offers an alter-
native ground for relief from the regular deadlines for a timely appeal: The
court must determine that “good and sufficient cause” exists for the failure to
Cite as 24 OTR 83 (2020) 85
allows a valuation appeal to proceed for the current tax year
and the two preceding years if two conditions are met.4 First,
the property must meet the “dwelling” requirements in ORS
305.288(1)(a). Second, the taxpayer’s requested change in
value must be equal to or greater than 20 percent of the
property’s RMV as shown on the assessment roll, as pro-
vided in ORS 305.288(1)(b).
The “dwelling” requirements are that the property
(1) be “used primarily as a dwelling (or [be] vacant)” and
(2) be “a single-family dwelling, a multifamily dwelling of
not more than four units, a condominium unit, a manufac-
tured structure or a floating home.” ORS 305.288(1)(a). The
property must satisfy both dwelling requirement (1) and
dwelling requirement (2). The Assessor asserts that the
property is “vacant,” referring to staff observations that no
building or structure is on the land. The court observes that
there may be some ambiguity in the term “vacant” as used
in requirement (1). The court need not address the meaning
of “vacant,” however, if the property does not satisfy dwell-
ing requirement (2), to which the court now turns.
Taxpayer does not argue that his property includes
a “condominium unit, a manufactured structure or a float-
ing home.” Therefore, taxpayer’s property satisfies require-
ment (2) only if the property includes a “dwelling,” specifi-
cally a single-family dwelling or a multifamily dwelling of
not more than four units.
file timely. See ORS 305.288(3). Taxpayer has asserted only that the difference
between the property’s actual RMV and the RMV shown on the roll is equal to or
greater than 20 percent; he has not appealed under subsection (3).
4
ORS 305.288(1) provides:
“The tax court shall order a change or correction applicable to a separate
assessment of property to the assessment and tax roll for the current tax year
or for either of the two tax years immediately preceding the current tax year,
or for any or all of those tax years, if all of the following conditions exist:
“(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.
“(b) The change or correction requested is a change in value for the prop-
erty for the tax year and it is asserted in the request and determined by the
tax court that the difference between the real market value of the property
for the tax year and the real market value on the assessment and tax roll for
the tax year is equal to or greater than 20 percent.”
86 Shevtsov v. Dept. of Rev.
The legislature has not defined “dwelling” for pur-
poses of ORS 305.288. The court therefore analyzes the
term using the Oregon Supreme Court’s template in State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009) (prescribing analysis
of statutory text, context and, where appropriate, legislative
history). The court turns first to the dictionary definition
of “dwelling” to determine the plain meaning of the term.
See Comcast Corp. v. Dept. of Rev., 356 Or 282, 295-96, 337
P3d 768 (2014) (seeking plain meaning in dictionary defini-
tion). The “dwelling” requirements first appeared relatively
recently, in a 1991 predecessor to ORS 305.288.5 Webster’s
defines “dwelling” as “a building or construction used for res-
idence.” Webster’s Third New Int’l Dictionary 706 (unabridged
ed 2002). The American Heritage Dictionary defines the term
more broadly as “[a] place to live in; an abode.” American
Heritage Dictionary of the English Language 558 (5th ed 2011).
As between the two possibilities, the statutory con-
text confirms that the legislature intended the term “dwell-
ing” to refer to a fixed building or structure. First, the intro-
ductory portion of ORS 305.288(1) makes clear that the relief
is available only for a “separate assessment of property.”
This phrase refers to a “parcel” of property consisting of
land together with “buildings, structures and improvements
thereon.” See ORS 308.215(1)(a)(E), (F); Gray, 23 OTR at 233.
A “parcel,” however, does not include personal property (gen-
erally, moveable items such as vehicles), because the assessor
must record personal property on the roll pursuant to a dif-
ferent set of criteria. See ORS 308.215(1)(b). By referring to a
“separate assessment of property,” the legislature indicated
its intent that the 20-percent difference in value be measured
by the value of all real property comprising the parcel.6
5
As explained in Gray v. Dept. of Rev., 23 OTR 220, 245 (2018):
“In 1991, the legislature moved the provisions governing retrospective
correction of residential property from ORS 306.115 to a new provision cod-
ified as ORS 306.116. Or Laws 1991, ch 459, §§ 32, 32a. This change also
removed the gross error provisions from ORS 306.115, thereby limiting the
availability of gross error relief to residential properties under new ORS
306.116 (1991).”
(Emphasis in original.)
6
Where the legislature intended to afford the benefit of ORS 305.288(1) to an
item of personal property, it did so specifically, by naming manufactured struc-
tures and floating homes. See ORS 308.875 (manufactured structure classified as
personal property unless owned by the same person owning the land on which it
Cite as 24 OTR 83 (2020) 87
Second, in the same bill in which the legislature
first adopted the predecessor to ORS 305.288(1), the legis-
lature amended several other property tax statutes contain-
ing the word “dwelling.” See Or Laws 1991, ch 459. In each
of those statutes, the legislature used the term “dwelling”
consistently with the meaning of a fixed building or struc-
ture. See, e.g., ORS 307.169 (1991) (amended by Or Laws
1991, ch 459, § 46) (exemption for fallout shelters “located
in structures used as dwellings”); ORS 308.229(4)(b) (1991)
(amended by Or Laws 1991, ch 459, § 95) (separately listing
“dwelling,” “other structures,” and “land” in defining “home-
site” for purposes of forestland special assessment); ORS
308.377(3) (1991) (amended by Or Laws 1991, ch 459, § 121)
(similar for farm use special assessment); see also ORS
308.372(3)(a)(A) (1991) (amended by Or Laws 1991, ch 459,
§ 117a) (referring to land “under dwellings” for purposes of
farm use special assessment); see generally Gray, 23 OTR at
251-52. Neither party has identified any relevant legislative
history. Accordingly, the court concludes that the property
must include a building or structure in order to satisfy the
“dwelling” requirement (2).
The Assessor filed a declaration of an appraisal man-
ager employed in the Assessor’s office, who testified that he
inspected the property and found no signs of a structure on
the property. Taxpayer filed a response repeating his general
assertion that “the property is residential,” but he did not
address or refute the Assessor’s evidence that no structure
is on the property. The magistrate’s decision states that tax-
payer asserted before the magistrate that he lives in a van
on the property. Even if that is the case, the lack of a struc-
ture prevents the property from qualifying as a “dwelling”
within the meaning of requirement (2) in ORS 305.288(1)(a).
The court therefore grants the Assessor’s motion
and orders this case dismissed as having been untimely
filed in the Magistrate Division. Now, therefore,
IT IS ORDERED that Defendant-Intervenor’s
motion to dismiss is granted.
sits); Sherman v. Dept. of Rev., 17 OTR 132, 133 (2003) (floating home is personal
property pursuant to ORS 308.190(2)(c)).