Moore v. Department of Revenue, Tc-Md 081219c (or.tax 2-19-2009)

DECISION OF DISMISSALThis matter is before the court on Defendant's motion to dismiss, included in its Answer filed January 16, 2009. The basis for Defendant's request is that Plaintiffs did not timely appeal within the 90 days required by ORS 305.280(2).¹ The tax year at issue is 2007.

ORS 305.280(2) provides in relevant part:

"An appeal * * * from any notice of assessment or refund denial issued by the Department of Revenue * * * shall be filed within 90 days after the date of the notice."

A review of the pleadings shows the assessment notice was mailed to Plaintiffs on September 23, 2008. Plaintiffs filed their Complaint with the Magistrate Division of the Oregon Tax Court December 29, 2008. The 90-day deadline was December 22, 2008. Plaintiffs missed the 90-day deadline.

The court is not aware of any circumstance that extends the statutory limit of 90 days. Defendant's motion is therefore granted.² Now, therefore, *Page 2 IT IS THE DECISION OF THIS COURT that this matter be dismissed.

Dated this ___ day of February 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 Dan Robinson on February 19,2009. The Court filed and entered this document on February 19, 2009.

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

² Plaintiffs' appeal is untimely and will be dismissed. However, it appears Plaintiffs qualify for the subtraction claimed on their 2007 return for active-duty military service pay and Defendant is sending Plaintiffs' tax preparer a doubtful liability form which Plaintiffs can use to request reduction or cancellation of the tax, penalties, and interest per ORS 305.295(1)(d). Another option discussed was Plaintiffs paying the tax assessed, and then appealing to the Tax Court within two years of the date of payment of that tax, per ORS 305.280(3).