Roberge v. Dept. of Rev. , 20 Or. Tax 423 ( 2012 )

No. 51 February 7, 2012 423
IN THE OREGON TAX COURT
REGULAR DIVISION
Daniel ROBERGE
and Kathy Lynn Roberge,
Plaintiffs,
v.
DEPARTMENT OF REVENUE,
Defendant.
(TC 5040)
Plaintiffs (taxpayers) appealed from a Magistrate Division decision of dis-
missal and sought a judgment to have the court order a classification correction
be made for the 2007-08 year and to change the maximum assessed value of tax-
payers’ real property for that year. Granting Defendant (the department)’s motion
to dismiss, the court ruled that the tax years at issue were closed to appeal and
the court was without statutory jurisdiction to provide a remedy to taxpayers.
Oral argument on Defendant’s Motion to Dismiss was
held in the courtroom of the Oregon Tax Court, Salem on
January 20, 2012.
William H. Sumerfield, Attorney at Law, Hood River, filed
the response and argued the cause for Plaintiffs (taxpayers).
Nathan Carter, Assistant Attorney General, Department
of Justice, Salem, filed the motion and argued the cause for
Defendant (the department).
Decision for Defendant rendered February 7, 2012.
HENRY C. BREITHAUPT, Judge.
This matter is before the court on the motion to
dismiss filed by Defendant Department of Revenue (the
department) on November 28, 2011. Plaintiffs (taxpayers)
responded and a hearing was held on January 20, 2012.
In this property tax case, the property in question
is an improvement that is in part residential and in part
commercial. In the year it was first added to the assessment
and tax rolls, the 2007-08 tax year, the assessor considered
the property as commercial for purposes of determining the
maximum assessed value and the assessed value under ORS
424 Roberge v. Dept. of Rev.
308.146 through ORS 308.166, and in particular what is
generally referred to as the changed property ratio (CPR).1
Taxpayers assert that they inquired of the assessor
as to whether there was a more favorable classification for
the property given its mixed use, but were told that no other
classification was available. Taxpayers did not challenge the
determination of the CPR as established by the assessor for
the 2007-08 year.2
In this proceeding, taxpayers seek to have the court
order a classification correction be made for the 2007-08
year and to change the maximum assessed value for that
year. The taxpayers note, correctly, that unless such a cor-
rection is made for the 2007-08 year, the initial maximum
assessed value for the property determined in that year will,
most likely, cause the assessed value of the property to be
greater than it would be if the correction in classification is
made.
Under Measure 50, the facts and actions taken in
the first year a property goes on the rolls can have continu-
ing effect.3 That said, unless a timely appeal of any allegedly
incorrect action is taken, the initial actions of the assessor
are immune from attack by taxpayers and may be binding
on the assessor. That is the teaching of cases such as Ellis
v. Lorati, 14 OTR 525 (1999); Zervis v. Dept. of Rev., 20 OTR
79 (2010); Kaufman v. Dept. of Rev., 20 OTR 159 (2010); and
Clackamas Cty. Assessor v. Village at Main Street II, 20 OTR
96 (2010).
As stated above, taxpayers took no appeal under
ORS 305.275, or otherwise, from the original action of the
assessor in classifying the property. Although they did file
an appeal with BOPTA as to the valuation of the property
1
All references to the Oregon Revised Statutes (ORS) are to 2009.
2
As to the 2007-08 tax year, taxpayers appealed to the Board of Property Tax
Appeals (BOPTA) with respect to the real market value placed on the property
but did not raise any question as to the classification of the property. Taxpayers
also appealed with respect to the 2008-09 and 2009-10 years and a Magistrate
Division decision determined that for those years the classification of the prop-
erty on the rolls should be changed. That decision did not purport to address
the 2007-08 year nor did it purport to alter the maximum assessed value of the
property as determined for the 2007-08 tax year.
3
See, e.g., Oregon Constitution, Art XI, § 11(1)(b).
Cite as 20 OTR 423 (2012) 425
and did obtain some relief, the action of BOPTA did not
address the proper classification of the property for Measure
50 purposes. No appeal from that BOPTA order was taken.
In this proceeding, taxpayers assert that the court
can provide relief to them pursuant to ORS 305.288. That
statue provides for certain types of relief, but only for the cur-
rent tax year or either of the two tax years immediately pre-
ceding the current tax year. Under ORS 305.288(5)(a) and
ORS 306.115, the current tax year in this case is the 2010-11
year and the two years preceding that are the 2009-10
and 2008-09 years.
Accordingly, the court is without statutory jurisdic-
tion to provide a remedy to taxpayers for the 2007-08 tax
year. The motion of the department is granted. Counsel for
the department is directed to prepare an appropriate form
of judgment. Now, therefore,
IT IS ORDERED that Defendant’s Motion to
Dismiss is granted.