Casanova v. Dept. of Revenue, Tc-Md 091196b (or.tax 1-7-2010)

DECISION OF DISMISSAL This matter is before the court on Defendant's motion to dismiss (motion), filed July 24, 2009, as part of its Answer, requesting that the Complaint be dismissed.

A case management conference was held on September 29, 2009, to discuss Defendant's motion. William Casanova appeared on his own behalf. Susan Zwemke, Tax Auditor, appeared for Defendant. Subsequently, written materials were filed; the record closed December 4, 2009.

Defendant contends that Plaintiff filed his appeal several years after the date of the Notice of Liability (Notice), dated June 9, 2003. Plaintiff stated he was unaware of the assessment in his name until May of 2009.

The underlying issue concerns unpaid withholding taxes for tax years 2001 and 2002. Plaintiff was the Chief Executive Officer of the business involved. The Notice was sent to the official address of record in Virginia. Plaintiff claims he did not receive that notice. According to Oregon law, "[m]ailing of notice to the person at the person's last-known address shall constitute the giving of notice * * * ." ORS 305.265(11) (2003).

During the conference, Plaintiff acknowledged that he postmarked the Complaint to the court on June 9, 2009, which is more than 90 days after the date the Defendant's Notice became final. See ORS 305.280(2) (2007); McDowell v. Dept. of Rev., TC-MD No 050812C (Nov 28, 2005) (citing ORS 305.280(2) and holding that taxpayer's appeal filed three days after the statutory deadline must be dismissed).

No exceptions apply to extend the mandatory filing deadline. Because Plaintiff acknowledges that the Complaint was filed after the statutory deadline, the court grants Defendant's motion. Now, therefore,

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

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 Jeffrey S. Mattson on January7, 2010. The Court filed and entered this document on January 7, 2010.