Kushner v. Department of Revenue, Tc-Md 080644b (or.tax 11-5-2008)

DECISION OF DISMISSALThis matter is before the court on Defendant's motion to dismiss (motion), filed July 1, 2008, as part of its Answer, requesting that the Complaint be dismissed.

A case management conference was held on August 11, 2008, to discuss Defendant's motion. Joseph J. Kushner appeared on his own behalf. Leah Kimsey, Tax Auditor, appeared for Defendant. Subsequently, written arguments were received.

This appeal concerns the 2004 tax year. Defendant sent Plaintiff a Notice of Proposed Adjustment and/or Distribution (notice), dated January 28, 2008. That notice became final on February 27, 2008. ORS305.270(5)(b).¹ From that date, Plaintiff had 90 days to file his appeal with this court. Defendant claims the appeal should be dismissed because it was late.

Plaintiff stated he was aware of the filing deadline, but admits that he was confused by the February 29 leap year date. In his filing of October 10, 2008, Plaintiff "asks the court to use its discretionary powers to exclude Leap Day from the count of days." The court does not have that inherent discretionary power. *Page 2

During the conference, Plaintiff acknowledged that the postmark on his Complaint to the court is May 28, 2008, which is more than 90 days after the date the Defendant's Notice became final. See ORS 305.280(2);McDowell v. Dept. of Rev., TC-MD No 050812C (Nov 28, 2005) (citing ORS305.280(2) and holding that taxpayer's appeal filed three days after the statutory deadline must be dismissed).

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 this matter be dismissed.

Dated this ___ day of November 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 Jeffrey S. Mattson on November5, 2008. The Court filed and entered this document on November 5,2008.

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