Ledesma v. Department of Revenue, Tc-Md 080904c (or.tax 2-9-2009)

DECISION OF DISMISSALThis matter is before the court on Defendant's motion to dismiss, included in its Answer filed August 20, 2008. Defendant asserts Plaintiff's Complaint was not timely filed. The official notices supporting that assertion were submitted to the court October 9, 2008.

Plaintiff timely filed her 2007 Oregon return, reporting a working family credit of $2,400 based on reported child care expenses of $6,000. On February 7, 2008, Defendant sent Plaintiff a written request for additional information regarding the working family credit. Plaintiff did not timely respond and, on March 7, 2008, Defendant issued a Notice of Deficiency denying the working family credit. Plaintiff submitted a written objection to Defendant later that month, which included a typed statement of child care expenses dated January 14, 2008, reflecting monthly payments of $500. The provider was Plaintiff's mother.

Defendant was apparently not persuaded by that information and, on April 22, 2008, issued a Notice of Deficiency Assessment. That assessment notice informed Plaintiff that, if she disagreed with the assessment, she had the right to appeal to the Oregon Tax Court "within 90 days from the date of the Notice of Assessment." (Def's Assessment Notice at 2.) Plaintiff appealed Defendant's assessment to the Tax Court. Her appeal was postmarked July 31, 2008. *Page 2

ORS 305.275¹ provides that a taxpayer aggrieved by an act of the Department of Revenue (department) may appeal to "the magistrate division of the Oregon Tax Court as provided in ORS 305.280 and 305.560." Plaintiff is clearly aggrieved by Defendant's assessment. However, as indicated in Defendant's assessment notice, Plaintiff had a limited time in which to appeal that assessment. ORS 305.280(2) provides in relevant part that "[a]n appeal * * * from any notice of assessment * * * issued by the Department of Revenue * * * shall be filed within 90 days after the date of the notice." Based on the April 22, 2008, assessment date, Plaintiff's 90-day appeal period expired July 21, 2008. Plaintiff filed her appeal 10 days after that deadline. Plaintiff's appeal is untimely. Defendant is therefore entitled to dismissal. Now, therefore,

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 9,2009. The Court filed and entered this document on February 9, 2009.

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