Opinion
TC-MD 091469B.
March 4, 2010.
DECISION OF DISMISSAL
This matter is before the court on Defendant's motion to dismiss (motion), filed October 21, 2009, as part of its Answer, requesting that the Complaint be dismissed.
A case management conference was held on January 8, 2010, to discuss Defendant's motion. Diana L. Berkelew, Certified Public Accountant, appeared on Plaintiffs' behalf. Mary L. Stewart, Tax Auditor, appeared for Defendant.
Defendant contends that Plaintiffs filed their appeal several months after the date of the Notice of Deficiency Assessment (Notice), dated June 23, 2009. Plaintiffs' representative stated the taxpayers were "unaware of how to respond" to the filing deadline. During the conference, Plaintiffs' representative acknowledged that she delivered the Complaint to the court on September 30, 2009, which is more than 90 days after the date the Defendant's Notice became final. See ORS 305.280(2) (2007); McDowell v. Dept. of Rev., TC-MD No 050812C (Nov 28, 2005) (citing ORS 305.280(2) and holding that taxpayer's appeal filed three days after the statutory deadline must be dismissed).
Plaintiffs' representative stated she was told by a court representative that a Complaint could be filed "at any time." Her contact apparently was made after the deadline had passed. The statement itself is true: a filing may be made at any date. But that does not mean that it is timely or that the court may act on the request. Here, the advice after the deadline cannot somehow open up the timeline anew.
No exceptions apply to extend the mandatory filing deadline. Because Plaintiffs acknowledge that the Complaint was filed after the statutory deadline, the court grants Defendant's motion. Now, therefore,
IT IS THE DECISION OF THIS COURT that the appeal is dismissed.
Dated this ___ day of March 2010.
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 Decision of Dismissal was signed by Magistrate Jeffrey S. Mattson on March 4, 2010. The court filed and entered the Decision of Dismissal on March 4, 2010.