Serrano-Reyes v. Department of Revenue, Tc-Md 100941c (or.tax 11-17-2010)

DECISION OF DISMISSAL This matter is before the court on Defendant's Motions to Dismiss (Motions) Plaintiff's appeal for 2006 and 2007, filed with the court July 29, 2010. Defendant asserted that the appeal for 2006 was filed too early and the 2007 appeal too late.

The court addressed the Motions with the parties at a case management hearing on November 1, 2010. After considerable discussion at that hearing, in which Plaintiff was aided by a Spanish speaking interpreter, the court finds Defendant's Motions are well taken and is therefore dismissing Plaintiff's appeal for both tax years.

Defendant reviewed Plaintiff's Oregon personal income tax return for 2007 and issued a Notice of Deficiency dated December 30, 2009. Plaintiff did not respond to that notice and, on February 17, 2010, Defendant issued a Notice of Deficiency Assessment. Under ORS 305.280(2), ¹ Plaintiff had 90 days from the date of the assessment notice to file an appeal with this court. Plaintiff filed his appeal with this court June 17, 2010, approximately one month after the 90-day deadline. Accordingly, Plaintiff's appeal is untimely and must be dismissed because his appeal rights have expired. However, as Defendant notes in its Motions, under ORS 305.280(3), Plaintiff can pay the tax, penalties, and interest due, and then file another appeal with this court within two years from the date of that payment.

Turning to Plaintiff's appeal of the 2006 tax year, as indicated above, Plaintiff's Complaint was filed with this court on June 17, 2010. Defendant's Notice of Deficiency for 2006 was not issued until July 20, 2010. A notice of deficiency is not an appealable act, and therefore does not create a right of appeal. See generally ORS 305.265. Rather, it is the notice of assessment that entitles a taxpayer to file an appeal with the Magistrate Division of the Tax Court. ORS 305.265(15); ORS 305.275(1). Plaintiff appealed before a deficiency was even issued, and to date, no assessment has been issued. Accordingly, Plaintiff's appeal for tax 2006 was filed prematurely and must be dismissed. Now, therefore,

IT IS THE DECISION OF THIS COURT that Plaintiff's appeal for 2006 is dismissed as premature; and

IT IS FURTHER DECIDED that Plaintiff's appeal for 2007 is dismissed as untimely because it was filed too late.

Dated this ___ day of November 2010.

If you want to appeal this Decision, file a Complaint in theRegular Division of the Oregon Tax Court, by mailing to:1163 State Street, Salem, OR 97301-2563; or by hand delivery to:Fourth Floor, 1241 State Street, Salem, OR. Your Complaint must be submitted within 60 days after the date ofthe Decision or this Decision becomes final and cannot be changed. This document was signed by Magistrate Dan Robinsonon November 17, 2010. The Court filed and entered this documenton November 17, 2010.

¹ All references to the Oregon Revised Statutes (ORS) are to 2009.