Ebaugh v. Department of Revenue, 4557 (or.tax 3-20-2002)

This matter is before the court on Defendant Department of Revenue's (the department) Motion for Judgment on the Pleadings and Plaintiffs' (taxpayers) response. Taxpayers filed a Complaint on November 21, 2001. The Complaint questioned the correctness of a Decision by a magistrate, which was dated and filed August 31, 2001.

Although taxpayers' Complaint was received on October 30, 2001, it was neither submitted with the filing fee required by ORS 305.490 (2001); TCR 1 E nor accompanied by a motion requesting deferral or waiver of the filing fee as contemplated by ORS 21.605. TCR 1 E requires that such a motion be filed with the complaint.

By the time taxpayers submitted a filing fee so that their Complaint could be filed, the 60-day period specified in ORS 305.501 within which complaints must be filed following a decision by a magistrate had expired. Taxpayers' Complaint is time barred and must be dismissed.

IT IS ORDERED that Defendant's Motion for Judgment on the Pleadings is granted, and

IT IS FURTHER ORDERED that Plaintiffs' Complaint is dismissed. Costs to neither party.

Dated this _____ day of March 2002.

______________________________

Henry C. Breithaupt Judge