Torres v. Dept. of Revenue, Tc-Md 070855c (or.tax 4-16-2008)

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 90 days of the assessment notice, as required by ORS 305.280(2).

Defendant's Answer stated that the assessment notice was mailed to Plaintiffs on June 26, 2007. The Complaint was filed on December 7, 2007. This interval is longer than the 90 days required by ORS305.280(2), ¹ 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.² Defendant's motion is granted. Now, therefore,

IT IS THE DECISION OF THIS COURT that Defendant's motion to dismiss is allowed; and,

IT IS THE FURTHER DECISION OF THIS COURT that the Complaint is dismissed.

Dated this ___ day of April 2008.

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 April 16, 2008.The Court filed and entered this document on April 16, 2008.

¹ All references to the Oregon Revised Statutes (ORS) are to 2005.

² Defendant noted at the April 14, 2008, case management conference, that Plaintiffs could pursue "doubtful liability" under ORS 305.295, and the corresponding administrative rule, OAR 150-305.295, because Plaintiffs appear to have satisfactory proof of withholding that was denied by Defendant in processing. Defendant further indicated that forms for pursuing such relief are available on Defendant's website. Plaintiffs may be able to receive credit for with holding with out filing a claim for doubtful liability.