Scott v. Dept. of Rev. , 21 Or. Tax 313 ( 2013 )

No. 39 December 18, 2013 313
IN THE OREGON TAX COURT
REGULAR DIVISION
Leslie SCOTT,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
Defendant.
(TC 5192)
Plaintiff (taxpayer) appealed from a Magistrate Division decision as to
income tax. Taxpayer moved for a stay of payment of income tax, but an accom-
panying hardship affidavit required by statute was not received by the court.
Defendant (the department) moved to dismiss taxpayer’s complaint on the ground
of the defect. Taxpayer’s counsel argued that even if a hardship affidavit was not
received by the court, the court could, via its rules, consider counsel’s signature
to the motion as an equivalent affidavit. Granting the department’s motion to
dismiss, the court ruled that the filing of a hardship affidavit must be with the
complaint and not later, and that the court’s rules do not have the same authority
as statute, therefore provisions on the certification of matters subscribed by coun-
sel cannot be treated as making assertions made over an attorney’s signature the
equivalent of an affidavit of a taxpayer.
Oral argument on Defendant’s Motion to Dismiss was
held via telephone on December 9, 2013.
Orrin L. Grover, Attorney at Law, Woodburn, filed a
response and argued the cause for Plaintiff (taxpayer).
Vanessa A. McDonald, Assistant Attorney General,
Department of Justice, Salem, filed the motion and argued
the cause for Defendant Department of Revenue (the
department).
Decision for Defendant rendered December 18, 2013.
HENRY C. BREITHAUPT, Judge.
This matter is before the court on the motion to dis-
miss filed by Defendant Department of Revenue (the depart-
ment). Plaintiff (taxpayer) filed an opposition to the motion
and a hearing was held on the matter on December 9, 2013.
In an attempt to appeal from a decision of a magis-
trate, counsel for taxpayer asserts that, to his best recollec-
tion, he sent to the court a complaint, declaration of mailing,
314 Scott v. Dept. of Rev.
motion for stay of the requirement to pay tax as required by
ORS 305.419, a hardship declaration and the filing fee for
the complaint.1 The court received all of the foregoing items
except for the hardship declaration.2 At the hearing on this
matter, counsel for taxpayer stated that he did not know
why the court did not receive the declaration, but that he
may be mistaken about his best recollection that it was in
the packet sent to the court.
To satisfy the jurisdictional requirements of the
statutes, where tax, interest and penalty (hereafter “tax”)
is not paid on or before the filing of the complaint, “plain-
tiff may file an affidavit alleging undue hardship with the
complaint.” ORS 305.419(3) (emphasis supplied). Although
the word “may” is generally permissive, in the context of the
requirements of ORS 305.419(1) stating the requirement of
payment of tax, the apparently permissive “may” becomes, in
fact, a requirement if a plaintiff, such as the taxpayer here,
does not pay the tax in full at the time of filing. Further,
the statute is clear that the filing of the affidavit must be
with the complaint and not later. The court cannot rewrite
the statute to allow the filing of a declaration long after the
filing of the complaint.3
Taxpayer’s counsel argued at the hearing that even
if a hardship document signed by taxpayer was not received
by the court at the time the complaint was filed, his actions
in subscribing to the motion filed with the complaint should
be considered the “affidavit” of the “plaintiff” required by
1
All references to the Oregon Revised Statutes (ORS) are to 2011.
2
In opposition to the motion to dismiss, taxpayer filed a Declaration and
Application For Waiver or Deferral of Fees and Court Costs, on a form provided
on the web site of the court. The document was dated August 21, 2013. Although a
form of affidavit, rather than declaration, is provided on the web site of the court
for use in connection with tax payment hardship motions, the form for waiver or
deferral of filing fees was used by taxpayer—a fact acknowledged in the motion
filed with the complaint—even though the form itself, as mentioned, was not
received by the court.
3
As this matter is decided based on the timing of the filing of a declaration
signed by Plaintiff, the court does not address whether the use of a declaration
rather than an affidavit, as required by the statute, constitutes another basis
for this decision. The court calls to the attention of all counsel that although the
rules of this court generally allow use of declarations instead of affidavits, the
rules of this court do not have the authoritative status of the Oregon Rules of
Civil Procedure and cannot displace statutory requirements.
Cite as 21 OTR 313 (2013) 315
ORS 305.419. Taxpayer’s counsel asserts that the Tax Court
Rule 17 provisions on the certification of matters subscribed
by counsel should be treated as making assertions made over
his signature the equivalent of an affidavit of the “plaintiff.”
These positions by counsel for the taxpayer are not
well taken. As mentioned in footnote 3 of this opinion, the
rules of the Tax Court are not statutory or quasi-statutory
in nature, as are the Oregon Rules of Civil Procedure.
Accordingly, a rule of this court cannot—contrary to the
statutory requirement—convert a certification by a lawyer
for a plaintiff into an affidavit by a plaintiff. That is espe-
cially so as the court must assume that in adopting the lan-
guage of ORS 305.419, the legislature must have assumed
that plaintiffs in this court would often be represented by
counsel. The specification in ORS 305.419 of an affidavit of
“plaintiff,” cannot be read as “a statement of the attorney for
a plaintiff.” Requiring an affidavit of the plaintiff personally
is sensible because the affidavit must provide facts about the
financial condition of the plaintiff and those facts are per-
haps peculiarly within the knowledge of the plaintiff rather
than his, her, or its attorney.
Taxpayer has the burden of proof that the provi-
sions of ORS 305.419 were satisfied. A document signed by
Plaintiff and setting forth financial information supporting
the assertion of financial hardship was not received by the
court with the complaint. Counsel for taxpayer only states
that to his best recollection he included a declaration of
Plaintiff in the packet sent to the court. Taxpayer has not
provided evidence to the court that, more probably than not,
the declaration was sent but misplaced by the court.
The assertions of taxpayer as to alternatives to
timely receipt of an affidavit are not well taken. The motion
signed by counsel does not satisfy the statutory requirement
of an affidavit of Plaintiff.
The motion to dismiss is granted. Counsel for the
department is directed to prepare an appropriate form of
judgment. Costs to neither party. Now, therefore,
IT IS ORDERED that Defendant’s Motion to
Dismiss is granted.