Otis v. Department of Revenue, Tc-Md 111013d (or.tax 12-6-2011) ( 2011 )

DECISION OF DISMISSAL This matter is before the court on Defendant's Motion to Dismiss on the ground that Plaintiffs failed to appeal within the 90 days required by ORS 305.280(2). A review of Plaintiffs' materials shows the Notice of Deficiency Assessment was mailed to Plaintiffs on June 22, 2011. The Complaint was postmarked on September 21, 2011. This interval is longer than the 90 days required by ORS 305.280(2), which provides:

"An appeal under ORS 323.416 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, 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.

Plaintiff, Ken Otis, appeared at the case management conference held December 5, 2011. Plaintiff stated that he mailed Plaintiffs' Complaint on September 16, 2011, but did not have any proof of mailing. Absent any evidence to the contrary that the postmark on the envelope dated September 21, 2011, was not the date of mailing, Defendant's Motion to Dismiss is granted. Now, therefore,

IT IS THE DECISION OF THIS COURT that Defendant's Motion to Dismiss is allowed.

The Complaint is dismissed.

Dated this ___ day of December 2011.

If you want to appeal this Decision, file a Complaint in theRegular 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 ofthe Decision or this Decision becomes final and cannot be changed. This document was signed by Presiding Magistrate Jill A. Tanneron December 6, 2011. The Court filed and entered this documenton December 6, 2011.