Kowaleski v. Department of Revenue, Tc-Md 090860c (or.tax 10-30-2009)

DECISION OF DISMISSAL This matter is before the court on Defendant's request, contained in its Answer filed July 29, 2009, to dismiss Plaintiffs' appeal as untimely. The court addressed the motion with the parties at a hearing held October 12, 2009. Carl Kowaleski appeared for Plaintiffs. Jan Jackman appeared for Defendant.

The tax year at issue is 2008, and Plaintiffs appealed from a Notice of Proposed Adjustment and/or Distribution Defendant issued May 4, 2009. Pursuant to that notice, Defendant applied Plaintiffs' $699 joint state refund to a financial obligation Paula Kowaleski incurred with another agency of the state.

Plaintiff Carl Kowaleski has requested a separate refund based on his adjusted gross income, expenses, deductions, and exemptions.

Authority for such actions is found in ORS 314.415(7), ¹ and the corresponding administrative rule, OAR 150-314.415(7)(4).² The statute authorizes "the department [to] make separate refunds at the request of either spouse." ORS 314.415(7) (emphasis added). The rule, written by the Department of Revenue (Department), provides in relevant part that a "request for separate refund[] must be mailed to the Department of Revenue within 30 days of the date of the Notice of Proposed Adjustment and/or Distribution." OAR 150-314.415(7)(4).

The 30-day period in this case ended June 3, 2009. Plaintiffs acted within that timeframe, but they filed their Complaint with the Tax Court instead of the Department on June 1, 2009. Defendant has agreed to treat the Tax Court Complaint as a timely request for the Department to consider issuing a separate refund to Plaintiff Carl Kowaleski.

Plaintiffs' appeal to the Tax Court is premature, having been filed with the court before the expiration of the June 3, 2009, deadline for pursuing administrative relief. Accordingly, Defendant's request for dismissal is in order. Furthermore, Plaintiff Carl Kowaleski did not object to Defendant's request for dismissal and has agreed to work with the Department regarding his request for a separate refund for tax year 2008.

Now, therefore,

IT IS THE DECISION OF THIS COURT that Defendant's request to dismiss Plaintiffs' appeal as premature is granted.

Dated this ____ day of October 2009.

If you want to appeal this Decision, file a Complaint in the RegularDivision of the Oregon Tax Court, by mailing to: 1163 State Street,Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 StateStreet, Salem, OR. Your Complaint must be submitted within 60 days after the date of theDecision or this Decision becomes final and cannot be changed. This document was signed by Magistrate Dan Robinson on October 30,2009. The Court filed and entered this document on October 30, 2009.

¹ All references to the Oregon Revised Statutes (ORS) are to 2007.

² All references to the Oregon Administrative Rules (OAR) are to the current rules.