Opinion
TC-MD 110061D.
May 19, 2011.
DECISION OF DISMISSAL
This matter is before the court on Defendant's motion to dismiss, filed March 3, 2011, in its Answer, stating that Plaintiff failed to appeal within the 90 days required by ORS 305.280(2).
The parties agree that Plaintiff received a request for information from Defendant, dated March 30, 2010, after filing her 2009 Oregon state income tax return. After Plaintiff responded, Defendant issued a Notice of Proposed Adjustment and/or Distribution, dated April 20, 2010. Plaintiff filed a written objection, dated May 19, 2010.
A review of Plaintiff's materials shows the Notice of Refund Denial (Notice) was mailed to Plaintiff on August 6, 2010. That Notice stated that Plaintiff had "90 days from the date of this letter to send a written appeal to the Magistrate Division of the Oregon Tax Court." Plaintiff's Complaint was filed on February 8, 2011. This interval is longer than the 90 days required by ORS 305.280(2) (2009), which provides:
"An appeal under ORS 323.416 or 323.623 or from any notice of assessment or refund denial issued by the Department of Revenue with respect to a tax imposed under ORS chapter 118, 308, 308A, 310, 314, 316, 317, 318, 321 or this chapter, or collected pursuant to ORS 305.620, shall be filed within 90 days after the date of the notice. An appeal from a proposed adjustment under ORS 305.270 shall be filed within 90 days after the date the notice of adjustment is final."
The court is not aware of any circumstances that extend the statutory limit of 90 days. Defendant's Motion to Dismiss is granted.
Plaintiff wrote that on August 6, 2010, she "[r]eceived letter that it was denied. Told I could appeal in the letter. In retrospect I realize now this was outside of the 90 day period, so I should have never been given this option at this time." (Ptf's Ltr at 1, Apr 11, 2011.) Plaintiff is incorrect in concluding that she did not have 90 days to appeal Defendant's Notice. She in fact did have 90 days as stated in Defendant's Notice. Unfortunately, Plaintiff did not file her Complaint within 90 days of the date of the Notice. Now, therefore,
IT IS THE DECISION OF THIS COURT that Defendant's motion to dismiss is granted. The Complaint is dismissed.
Dated this ____ day of May 2011.
If you want to appeal this Decision, file a Complaint in the Regular 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 of the Decision or this Decision becomes final and cannot be changed. This document was signed by Presiding Magistrate Jill A. Tanner on May 19, 2011. The Court filed and entered this document on May 19, 2011.