Opinion
TC-MD 120690D
09-19-2012
DIANNA UPTHAGROVE, Plaintiff v. DEPARTMENT OF REVENUE, State of Oregon, Defendant.
DECISION OF DISMISSAL
JILL A. TANNER PRESIDING MAGISTRATE.
This matter is before the court on Defendant's Motion to Dismiss on the ground that Plaintiff failed to appeal within the 90 days required by ORS 305.280(2).
A review of Plaintiff's materials shows that Defendant's Notice of Refund Denial was mailed to Plaintiff on April 19, 2012. Plaintiff's Complaint was filed on July 19, 2012. Plaintiff submitted her Complaint and accompanying documents using a private carrier, not the United States Postal Service. The file date for Plaintiff's Complaint is the date the private carrier delivered her Complaint to the court. This interval is longer than the 90 days required by ORS 305.280(2) (2011), 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.”
Plaintiff's Complaint was filed 91 days after Defendant's Notice of Refund Denial. The court is not aware of any circumstances that extend the statutory limit of 90 days. Defendant's Motion to Dismiss is granted. Now, therefore, IT IS THE DECISION OF THIS COURT that Defendant's Motion to Dismiss is allowed. Plaintiff's appeal is dismissed.