Wihtol II v. Dept. of Rev. , 21 Or. Tax 291 ( 2013 )

No. 36 November 13, 2013 291
IN THE OREGON TAX COURT
REGULAR DIVISION
Jeffrey B. WIHTOL,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
Defendant,
and
MULTNOMAH COUNTY ASSESSOR,
Defendant-Intervenor.
(TC 5171)
Following the court’s order granting Plaintiff (taxpayer)’s motion for sum-
mary judgment, Defendant (the department) moved for reconsideration on the
grounds that taxpayer had not established that he was the prevailing party, and
that entry of a Regular Division judgment prior to consideration of the matter on
remand to the Magistrate Division could lead to the department having to appeal
the judgment before the matter was resolved on the merits in the Magistrate
Division. Granting the department’s motion, the court ruled that taxpayer had
prevailed on the dispute that brought the case to the Regular Division, but that
department’s argument was well taken as to judicial economy regarding the tim-
ing of entry of judgment for recovery of the fee paid in the Regular Division,
therefore the court determined it would hold taxpayer’s form of judgment until
the remanded matter was resolved.
Submitted on Defendant (the department)’s Motion for
Reconsideration.
Jeffrey B. Wihtol, Attorney at Law, Portland, filed a
response for Plaintiff (taxpayer).
James C. Wallace, Senior Assistant Attorney General,
Department of Justice, Salem, filed the motion for Defendant
Department of Revenue (the department).
Decision for Defendant rendered November 13, 2013.
HENRY C. BREITHAUPT, Judge.
This matter is before the court on the motion of
the Department of Revenue (the department) for recon-
sideration of the opinion and order of this court issued
September 5, 2013. The opinion and order followed cross-
motions for summary judgment filed by Plaintiff (taxpayer)
292 Wihtol II v. Dept. of Rev.
and Defendant-Intervenor Multnomah County Assessor (the
county). The department did not oppose taxpayer’s motion
but now seeks reconsideration.
The department first argues that taxpayer has not
established that he is the prevailing party. In its motion the
department also asserts that taxpayer’s right to a recovery
of his filing fee in the Regular Division is dependent on his
right to a filing fee in the Magistrate Division. The court is
of the opinion that taxpayer prevailed on the dispute that
brought the case to the Regular Division—that is whether
there was any right to recovery of filing fees paid for proceed-
ings in the Magistrate Division. Indeed, the only question
raised in the motion of the county related to the authority
of a magistrate to award costs and expenses to a prevailing
party. On that point taxpayer prevailed and should not have
to bear the economic burden of the fee paid to achieve that
victory.
In transmitting its opinion and order to the parties,
the court directed taxpayer to prepare a form of judgment.
The department raises the question of whether a judg-
ment should be entered at this point in the proceeding. The
department argues that entry of a judgment prior to consid-
eration of the matter on remand to the Magistrate Division
that was included in the opinion and order could lead to it
having to appeal the judgment before the matter is resolved
on the merits.
As to the timing of entry of judgment for recovery of
the fee paid in the Regular Division, the court is of the opin-
ion that the department raises a good point as to judicial
economy and the problems that would potentially be created
if a judgment were to be entered by the Regular Division
prior to completion of the proceedings in the Magistrate
Division on remand. Accordingly, this court will hold the
form of judgment presented by taxpayer until the completion
of the proceedings in the Magistrate Division on remand. At
the completion of such proceedings, or on any appeal of the
decision of the magistrate in those proceedings, the court
will enter the judgment in favor of taxpayer for the fee paid
to appeal the initial decision of the Magistrate Division to
this division.
Cite as 21 OTR 291 (2013) 293
Next, the department argues that a remand of this
matter is not necessary or appropriate. A remand of the
matter is appropriate. On remand, a magistrate, possibly
after consultation with other magistrates as permitted by
ORS 305.501(4)(a), can consider and decide how to approach
such claims for recovery of filing fees and the question of
who is the prevailing party.1 In the first instance those deci-
sions are for the magistrates to make, subject to appeal to
this division.
The department next argues that it should not
be a judgment debtor on the judgment issued by this divi-
sion, arguing that the opponent of taxpayer was the county.
That may be as to the liability for the filing fee paid in the
Magistrate Division. However, in the appeal that taxpayer
took to establish his right, as a matter of law, to that filing
fee his opponent was, as required by statute in property tax
cases, the department. ORS 305.501(5)(c). That conclusion
is not changed by the fact that the department chose not
to participate actively in the proceedings in the Regular
Division.
The order of the court is modified as discussed above
and the court will defer entering judgment on this matter in
accordance with the foregoing. Now, therefore,
IT IS ORDERED that Defendant’s Motion for
Reconsideration is granted.
1
All references to the Oregon Revised Statutes (ORS) are to 2011.