SHOTROPA v. DEPARTMENT OF REVENUE, TC-MD 090012D (Or.Tax 3-20-2009)

TC-MD 090012D.In the Oregon Tax Court. Magistrate Division, Income Tax.
March 20, 2009.

DECISION OF DISMISSAL
JILL A. TANNER, Presiding Magistrate.

Plaintiffs request that the penalty and interest assessed for tax years 2005 and 2006 be waived.

On August 29, 2008, and again on September 22, 2008, Plaintiffs requested that Defendant waive assessed penalty and interest. Defendant denied Plaintiffs’ August 29, 2008, request on October 22, 2008. (Def’s Answer at 1.) Defendant wrote that it did not have a “record of receiving the 9/22/08 waiver request.” (Id.)

On March 10, 2009, Defendant filed a letter with the court in response to Plaintiffs’ “waiver request dated 03/08/09 via fax.” Defendant again denied Plaintiffs’ request.

Defendant “has the authority, on a showing of `good and sufficient cause,’ to waive penalties and interest. ORS 305.145.”[1] Pelett v. Dept. of Rev., 11 OTR 364, 365 (1990). That authority “is discretionary.”Id. The court does not have the authority “to review defendant’s discretion in waiving penalties or interest.” Id. at 366. In addition, the Legislature did not give the court discretionary authority to waive penalty or interest. Because the only issue before the court is Plaintiffs’ request that the court review Defendant’s decision not to waive assessed

Page 2

penalties and interest, the court must dismiss Plaintiffs’ appeal because it lacks jurisdiction to consider this matter. Now, therefore,

IT IS THE DECISION OF THIS COURT that this matter be dismissed.

Dated this ___day of March 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 Presiding Magistrate Jill A. Tanner onMarch 20, 2009. The Court filed and entered this document on March 20,2009.