TC-MD 100886C.In the Oregon Tax Court. Magistrate Division, Income Tax.
November 17, 2010.
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DECISION OF DISMISSAL
DAN ROBINSON, Magistrate.
This matter is before the court on Defendant’s (the Department) request to dismiss Plaintiff’s appeal as premature. That request was included in the Department’s Answer filed June 15, 2010.
An initial case management conference was held by telephone September 1, 2010. The Department’s request was discussed during that proceeding and after some discussion, the court granted the request. This Decision memorializes the court’s ruling.
On May 19, 2010, Plaintiff filed an appeal with this court regarding tax years 1995, 1996, 1997, 1998, and 1999. The Department’s Answer indicated it issued Failure to File assessments in August and September 2001 for the years at issue because it had no record of receiving returns from Plaintiff and the notices it mailed to Plaintiff’s last known address were not returned as undeliverable.
The Department correctly notes in its Answer that it is not responsible for ensuring that taxpayers receive assessment notices. Oregon law only requires that the department mail notices to taxpayers at their last-known address. See
ORS 305.265(11) (1999).[1] Plaintiff claims he
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timely filed the returns and did not receive the Department’s subsequent assessment notices. That challenge can be made administratively to the Department pursuant to ORS 305.820.
As for the Department’s dismissal request, ORS 305.265(10) provides that when a taxpayer fails to file a return, the Department must determine the tax according to the best information it has available and assess the tax accordingly, including imposing penalty and interest charges. ORS 305.265(10)(a). Additionally, the provisions of ORS 305.265(14), which state that assessments are final after the expiration of the appeal period provided in ORS 305.280, are inapplicable to failure to file assessments. Instead, under paragraph (b) of ORS 305.265(10)(b) (2009)[2] “the department may accept the filing of a report or return submitted by a person who has been assessed a tax under paragraph (a) of [ORS 305.265 (10)].” In other words, unlike situations where a taxpayer files a return and the Department ultimately issues an assessment, which may then be appealed to this court within 90 days of the date of mailing of the assessment notice, a taxpayer challenges a failure to file assessment by filing a return. If the Department rejects the return, the taxpayer may appeal to the Magistrate Division of the Oregon Tax Court under ORS 305.265(10)(d) (2009).
Plaintiff in this case only recently submitted returns to the Bend field office. Those returns were subsequently forwarded to the auditor assigned to the case in Salem. Once the auditor reviews the returns she may accept or reject them. In the event they are rejected. Plaintiff may then file an appeal with this court. However, at this time Plaintiff’s appeal is premature and the Department’s request for dismissal is well taken. Now, therefore,
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IT IS THE DECISION OF THIS COURT that Plaintiff’s appeal regarding tax years 1995, 1996, 1997, 1998, and 1999, is dismissed as premature in accordance with the court’s above explanation.
Dated this ___ day of November 2010.
If you want to appeal this Decision, file a Complaint in theRegular Division of the Oregon Tax Court, by mailing to:1163 State Street, Salem, OR 97301-2563; or by hand delivery to:Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the date ofthe Decision or this Decision becomes final and cannot be changed.
This document was signed by Magistrate Dan Robinsonon November 17, 2010. The Court filed and entered this documenton November 17, 2010.