Opinion
TC-MD 111051D
02-14-2012
CLYDE F. JUSSILA and LIISA JUSSILA, Plaintiffs v. DEPARTMENT OF REVENUE, State of Oregon,w Defendant.
DECISION OF DISMISSAL
JILL A. TANNER PRESIDING MAGISTRATE, JUDGE.
This matter is before the court on Defendant's motion to dismiss, filed as part of Defendant's Answer, on the ground that Plaintiffs failed to appeal within the 90 days required by ORS 305.280(2).
A case management conference was held January 25, 2012. Plaintiffs' authorized representative, Jackie S. Coulter, enrolled agent, appeared on Plaintiffs' behalf. Kyle Quiring, Tax Auditor, appeared on behalf of Defendant.
Defendant's motion to dismiss for failure to file a timely appeal was discussed. Plaintiffs were given until February 8, 2012, to submit a written response to Defendant's motion to dismiss. As of this date, Plaintiffs have not filed a written response.
Defendant's Answer states that a Proposed Refund Adjustment Notice was mailed to Plaintiffs on April 25, 2011. Plaintiffs' Complaint was filed on September 27, 2011. This interval is longer than the 90 days required by ORS 305.280(2), 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. Plaintiffs' lack of response provides the court with no evidence contrary to that presented by Defendant. Defendant's motion to dismiss is granted. Now, therefore, IT IS THE DECISION OF THIS COURT that Defendant's motion to dismiss is allowed. Plantiffs' Complaint is dismissed.