Gonzales v. Department of Revenue ( 2012 )

IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax CHARLES GONZALES ) and MICHELLE GONZALES, ) ) Plaintiffs, ) TC-MD 111216C ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant. ) DECISION OF DISMISSAL This matter is before the court on Defendant’s motion to dismiss, requesting that all three tax years be dismissed. Plaintiffs filed their Complaint on November 22, 2011, challenging adjustments Defendant made to their state income tax returns for the 2008, 2009, and 2010. Defendant filed its Answer on December 30, 2011, requesting that the court dismiss all three tax years for lack of jurisdiction. (Def’s Ans at 3.) Defendant states in Answer the dates notices were sent for each tax year. (Id. at 1-2.) During a case management conference held on February 14, 2012, Plaintiffs acknowledged that they received each of the notices referred to in Defendant’s Answer for each tax year. For the reasons stated below, Defendant’s motion to dismiss all three tax years is granted. A review of the parties’ materials show that for tax year 2008, a Notice of Proposed Refund Adjustment and/or Distribution was mailed to Plaintiffs on August 24, 2009. (Def’s Ans at 1.) For tax year 2009, a Notice of Proposed Refund Adjustment and/or Distribution was mailed to Plaintiffs on September 27, 2010. (Id.) Plaintiffs conceded at the February 14, 2012, case management conference that they did not file written objections or request a conference. Therefore, the notices for 2008 and 2009 became final 30 days after the date they were issued. DECISION OF DISMISSAL TC-MD 111216C 1 ORS 305.270(4)(b), (5)(b).1 Plaintiffs’ Complaint was filed November 22, 2011. This interval is longer than the 90 days required by ORS 305.280(2), which provides: “An appeal under ORS 323.416 * * * 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.” (Emphasis added.) Plaintiffs’ appeal deadlines were December 22, 2009, for the 2008 tax year, and January 25, 2011, for the 2009 tax year. Plaintiffs filed their Complaint approximately 23 months and 10 months after the respective deadlines. The court is not aware of any circumstances that extend the statutory limit of 90 days. Defendant’s motion to dismiss is granted for the 2008 and 2009 tax years. For tax year 2010, a Notice of Deficiency was mailed to Plaintiffs on November 11, 2011. ORS 305.265(15) states in part that an “[a]ppeal may be taken to the tax court from any notice of assessment.” (Emphasis added). Because an assessment has not been issued for 2010, Plaintiffs’ appeal is premature for this tax year, and Defendant’s motion to dismiss must be granted. Now, therefore, /// /// /// /// /// /// 1 All references to the Oregon Revised Statutes (ORS) are to 2009. DECISION OF DISMISSAL TC-MD 111216C 2 IT IS THE DECISION OF THIS COURT that Defendant’s motion to dismiss is granted. The Complaint is dismissed. Dated this day of February 2012. JILL A. TANNER PRESIDING MAGISTRATE If you want to appeal this 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 Decision or this Decision becomes final and cannot be changed. This document was signed by Presiding Magistrate Jill A. Tanner on February 22, 2012. The Court filed and entered this document on February 22, 2012. DECISION OF DISMISSAL TC-MD 111216C 3