Clark v. Department of Revenue ( 2012 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Income Tax
DALE R. CLARK and CATHY M. CLARK, )
)
Plaintiffs, ) TC-MD 120157N
)
v. )
)
DEPARTMENT OF REVENUE, )
State of Oregon, )
)
)
Defendant. ) DECISION OF DISMISSAL
This matter is before the court on Defendant’s Motion to Dismiss (Motion) on the ground
that Plaintiffs failed to appeal within the 90 days required by ORS 305.280(2).
A case management conference was held in this matter on May 8, 2012, during which
Dale Clark (Clark) appeared on behalf of Plaintiffs and Kyle Quiring (Quiring) appeared on
behalf of Defendant. Clark stated that Plaintiffs timely filed a complaint form with the court in
October 2011, but the complaint was returned because Plaintiffs did not include the correct filing
fee of $240. Clark agreed that Plaintiffs’ Complaint, including the correct filing fee, was not
filed within 90 days of Defendant’s Notice of NSF Check Penalty, dated July 13, 2011. Quiring
stated that Plaintiffs could appeal to the Magistrate Division within two years “after the penalty
has been paid in full” pursuant to ORS 305.280(3). (Def’s Mot at 2.)
A review of court records reveals that the court received from Plaintiffs a complaint form
with a $75.00 check on October 12, 2011. On October 17, 2011, the court sent a letter to
Plaintiffs stating that Plaintiffs’ “Complaint was received with a check for $75.00, which is an
insufficient filing fee.” The court’s letter further stated that, “[t]o file a valid appeal with the
Magistrate Division, a Complaint form must be completed and returned with the document being
DECISION OF DISMISSAL TC-MD 120157N 1
appealed and the required fee of $240.00.” See also ORS 305.490(1); Or Laws 2011, Ch 595,
§§ 8, 62. It appears that Plaintiffs attempted to file their complaint on October 12, 2011, but did
not include the correct filing fee. A complaint is not filed until the appropriate fee or a complete
fee waiver application is received. Plaintiffs’ Complaint was not filed until March 27, 2012.
That interval is longer than the 90 days required by ORS 305.280(2) (2011), which provides:
“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.”
The court is not aware of any circumstances that extend the statutory limit of 90 days.
Defendant’s Motion to Dismiss is granted. Now, therefore,
IT IS THE DECISION OF THIS COURT that Defendant’s Motion to Dismiss is granted
and Plaintiffs’ Complaint is dismissed.
Dated this day of May 2012.
ALLISON R. BOOMER
MAGISTRATE PRO TEMPORE
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 Magistrate Pro Tempore Allison R. Boomer on
May 9, 2012. The Court filed and entered this document on May 9, 2012.
DECISION OF DISMISSAL TC-MD 120157N 2