Jimenez v. Dept. of Rev. ( 2022 )

No. 2 February 9, 2022 55
IN THE OREGON TAX COURT
REGULAR DIVISION
Mickey JIMENEZ
and Theresa Jimenez,
Plaintiffs,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant.
(TC 5422)
In this personal income tax case, after the court granted summary judgment
in favor of Defendant Department of Revenue, Defendant moved for attorney fees
of $11,255. See Jimenez v. Dept. of Rev., 24 OTR 618 (2021). The court concluded
that an award was allowed under ORS 20.075(1) because Plaintiffs relied on
objectively unreasonable claims and defenses, and an award would deter other
taxpayers from asserting similar claims in the future, and would not deter other
taxpayers from asserting reasonable claims in the future. The court determined
that the amount of fees was reasonable under 20.075(2) because a similar amount
was awarded in another case involving similar time, labor, and skill. Routledge
v. Dept. of Rev., 24 OTR 103 (2020). The court awarded the requested attorney
fees of $11,255.
Submitted on Defendant’s Statement of Attorney Fees.
Mickey Jimenez, Plaintiff, submitted a response pro se.
Samual B. Zeigler, Senior Assistant Attorney General,
Department of Justice, Salem, filed the statement for
Defendant.
Decision for Defendant rendered on February 9, 2022.
ROBERT T. MANICKE, Judge.
On December 3, 2021, the court granted summary
judgment in favor of Defendant. On January 5, 2022, Defen-
dant filed a Statement of Attorney Fees requesting an award
of $11,255 in attorney fees. The statement was accompa-
nied by a certificate showing service on Plaintiffs by mail
that day. As of this date, the court has received no response
from Plaintiffs. The court concluded in its order on sum-
mary judgment that an award of reasonable attorney fees
is required because all three of Plaintiffs’ arguments rely
56 Jimenez v. Dept. of Rev.
on positions that, in other published decisions, have been
held objectively unreasonable. See Jimenez v. Dept. of Rev.
24 OTR 618 (2021); ORS 20.105. The only remaining issue is
the amount of fees to award.
In determining the amount of the award, the court
must consider all factors in ORS 20.075(1) and (2). See ORS
20.105(1). Regarding the factors in ORS 20.075(1), the court
relies primarily on its analysis that Plaintiffs’ claims and
defenses were objectively unreasonable and that this and
other courts have reached the same conclusion regarding
other taxpayers’ similar arguments. See ORS 20.075(1)(b).
The court believes that taxpayers rationally considering
whether to assert such claims and defenses in the future are
likely to be deterred by an award to Defendant of all reason-
able attorney fees actually incurred. See ORS 20.075(1)(d).
On the other hand, because the award is premised on the
objectively unreasonable nature of Plaintiffs’ arguments,
the court sees no reason why the award would deter tax-
payers from asserting all reasonable claims and defenses in
future cases. See ORS 20.075(1)(c). The remaining factors
in ORS 20.075(1) do not affect the court’s decision as to the
amount of the award because:
1. In this de novo proceeding, Defendant has not
alleged conduct by Plaintiffs before or during the
litigation that was reckless, willful, malicious, in
bad faith or illegal;
2. Plaintiffs have alleged that Defendant’s collections
officer used “threatening language” to “coerce”
Plaintiffs into relinquishing their “private prop-
erty.” However, Plaintiffs have not shown that the
officer did anything beyond sending out standard
collection notices. The court finds that Plaintiffs’
allegations are grounded in their objectively unrea-
sonable position that they are entitled to avoid tax
in the first place;
3. The parties have not made the court aware of any
settlement efforts; and
4. The prevailing party fees described in ORS 20.190
are not available in this court. This court awarded
Cite as 25 OTR 55 (2022) 57
a penalty of $4,000 under ORS 305.437 on essen-
tially the same grounds supporting this award of
attorney fees. See Jimenez, 24 OTR at 627.
The court turns to the factors in ORS 20.075(2).
Here, the court finds that the hourly rates incurred by
Defendant are generally at the low end of regional mar-
ket rates and that the total amount requested is simi-
lar to the amount of $12,687.50 awarded in Routledge
v. Dept. of Rev., 24 OTR 103 (2020); ORS 20.075(2)(c).
Routledge is relevant because it involved similar time, labor
and skill: both cases involve some of the same timeworn,
scattershot arguments—ultimately meritless, yet tedious
and time-consuming to decipher and address—that wage
income is not subject to the personal income tax; both cases
were presented on cross-motions for summary judgment
after denial of Defendant’s motion to dismiss; and the cases
were decided less than two years apart. See ORS 20.075(2)(a).
The amount of tax at issue is comparable as well: in Routledge
the tax in dispute was $11,292 for one tax year; in this case,
the tax at issue was approximately $20,000 for three tax
years. See ORS 20.075(2)(d). The court sees no issue regard-
ing the experience, reputation or ability of counsel staffing
the case. See ORS 20.075(2)(g). The court finds the remain-
ing factors in ORS 20.075(2) inapposite. The court will grant
Defendant’s requested award in the full amount of $11,255.
Counsel for Defendant is directed to submit an
appropriate form of supplemental judgment. Now, therefore,
IT IS ORDERED that Defendant’s Statement for
Attorney Fees is granted in the full amount of $11,255.