O'Brien v. Department of Revenue, Tc-Md 090016b (or.tax 4-10-2009)

DECISION OF DISMISSALDefendant moves to dismiss the Complaint filed in this matter. The motion was contained in the Answer filed February 5, 2009. Subsequently, written arguments were submitted; the record closed March 20, 2009.

I. STATEMENT OF FACTSDefendant issued a Notice of Deficiency Assessment¹ on September 16, 2008. On December 15, 2008, Plaintiff submitted a letter to the Magistrate Division of the Oregon Tax Court protesting Defendant's assessment. However, he did not include the mandatory $25 filing fee.

On that same day, his letter of protest was returned to Plaintiff, along with a request for "the required filing fee of $25.00 in order for a valid appeal to be filed in the Magistrate Division." (Court's Ltr, Dec 15, 2008) (emphasis in original).

Plaintiff then submitted a Complaint form, accompanied by the filing fee. It was postmarked January 2, 2009. *Page 2

II. ANALYSISORS 305.280(2)² requires a taxpayer to appeal a notice of assessment within 90 days after the date of the notice. The last day of that 90-day deadline from Defendant's notice was December 15, 2008. Plaintiff's Complaint is deemed filed January 2, 2009; that is beyond the 90-day deadline.

An appeal to the Tax Court is not perfected until the applicable filing fee is paid. The $25 filing fee for appeal to this Magistrate Division is required both by statute and court rule. ORS 305.490(1)(a) and Tax Court Rules-Magistrate Division 1 A(2).³

The Regular Division of this court dismissed as untimely an appeal submitted without a filing fee and later resubmitted after the deadline. The Oregon Supreme Court upheld that dismissal. Garrison v. Dept ofRev., 345 Or 544, 200 P3d 126, WL 5412461 (2008). See also Knapp v.Dept. of Rev., TC-MD No 090047C (March 10, 2009).

Because the appeal is late, the court is without the requisite authority to reach the merits of the underlying case. *Page 3

III. CONCLUSIONNow, therefore,

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

Dated this ___ day of April 2009.

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 April 10,2009. The Court filed and entered this document on April 10, 2009.

1 ¹ It concerned a Working Family Credit for the 2007 tax year. 2 ² All references to the Oregon Revised Statutes (ORS) are to 2007. 3 ³ Reference to the rules of the Magistrate Division are to those in effect as of January 1, 2009.