68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
SA to A-Eng. HB 2325
LC 69-5
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 2325
By COMMITTEE ON JUDICIARY
May 17
On page 1 of the printed A-engrossed bill, line 5, after '
305.430,' insert '305.437,' and after '305.460,' insert '
305.480,'.
In line 6, delete '306.115,' and insert '305.875, 306.115,
306.116,'.
In line 9, delete '321.765,'.
In line 13, after '305.555' insert 'and section 26, chapter
____, Oregon Laws 1995 (Enrolled Senate Bill 192)'.
In line 17, delete '2 and 3' and insert '2 to 3a'.
In line 25, after 'shall' delete the rest of the line.
In line 26, delete 'of the tax court and'.
On page 2, delete lines 12 through 29 and insert:
' (6) The judge of the tax court may appoint one of the
magistrates as presiding magistrate.
' (7) A tax court magistrate and other officers and employees
of the magistrate division of the tax court appointed under a
personnel plan established by the Chief Justice of the Supreme
Court of Oregon are state officers or employees in the exempt
service and not subject to ORS chapter 240. However, an officer
or employee shall have the right to be dismissed only for just
cause after hearing and appeal.
' { + SECTION 3. + } ORS 305.480 is amended to read:
' 305.480. { + Tax court administration; clerk. + } (1) The
State Court Administrator shall act as court administrator for
{ - and clerk of - } the tax court. Other necessary employees
of the court shall be appointed and otherwise governed by
applicable provisions of the personnel plan for employees of the
courts of this state who are state employees.
' (2) The judge and employees of the court shall be reimbursed
for all actual and necessary expenses as provided by law.
' (3) No employee of the court shall act as attorney, counselor
or accountant in the matter of any tax imposed or levied by this
state or any of its political subdivisions.
{ + ' (4) Subject to the applicable provisions of a personnel
plan established by the Chief Justice of the Supreme Court of
Oregon, the judge of the tax court shall appoint a person to
serve as tax court clerk. The tax court clerk shall:
' (a) Keep the seal of the tax court and affix it in all cases
required by law.
' (b) Record the proceedings of the court.
' (c) Keep the records, files, books and papers pertaining to
the tax court.
' (d) File all papers delivered to the officer for that purpose
in any suit or proceeding therein, or before the judge.
' (e) Attend the tax court and administer oaths.
' (f) Under the direction of the judge of the tax court enter
its orders and judgments.
' (g) Authenticate, by certificate or transcript, as may be
required, the records, files or proceedings of the tax court, or
any paper pertaining thereto, and filed with the officer.
' (h) In the performance of duties pertaining to the tax court,
conform to the direction of the tax court judge. + }
' { + SECTION 3a. + } { + Small claims procedure. + }
{ + (1) A plaintiff may elect to file a small claims procedure
in the following classes of cases:
' (a) A proceeding for refund or to set aside additional taxes
assessed or taxes assessed when no return was filed in any case
involving taxes imposed under ORS chapters 314, 316, 317 and 318,
with respect to any year for which the amount in controversy does
not exceed $5,000, exclusive of interest and penalties.
' (b) A proceeding by a taxpayer in any property tax case in
which a taxpayer has the right to appeal and that involves only
the question of the real market or specially assessed value of
real or personal property, where a board of equalization, a board
of ratio review (by order of the board), an assessor or a tax
collector has determined that the real market or specially
assessed value of:
' (A) A parcel of land is not in excess of $250,000;
' (B) The improvement on a parcel of land is not in excess of
$250,000;
' (C) Both a parcel of land and the improvement are not in
excess of $250,000; or
' (D) Personal property is not in excess of $250,000.
' (c) A proceeding for the refund or the revision of taxes
imposed by ORS chapter 118 or 119 where the amount in controversy
does not exceed $5,000, exclusive of interest and penalties.
' (d) A proceeding for the refund of taxes authorized under ORS
310.630 to 310.690 without limitation to the amount in
controversy.
' (e) A proceeding by a taxpayer in any case authorized by ORS
321.560 where the amount in controversy does not exceed $5,000,
exclusive of interest and penalties.
' (f) A proceeding for refund or the revision of taxes imposed
by the Tobacco Products Tax Act where the amount in controversy
does not exceed $5,000, exclusive of interest and penalties.
' (g) A proceeding for refund or to set aside additional taxes
assessed or taxes assessed when no return was filed in any case
involving taxes administered by a state agency or department
under ORS 305.620 with respect to any year in which the amount in
controversy does not exceed $5,000, exclusive of interest and
penalties.
' (h) A proceeding for refund or to set aside interest or
penalties assessed in connection with any tax administered by the
Department of Revenue, where the amount in controversy does not
exceed $5,000. This paragraph does not apply to the denial of a
request for the discretionary waiver of interest or penalties.
' (2) Under a small claims procedure, the hearing shall not be
recorded and the parties shall have no right to appeal the
determination of the magistrate.
' (3)(a) If the plaintiff elects a small claims procedure in a
property tax case involving only the question of the real market
or specially assessed value of real property, the plaintiff may
elect, in lieu of a hearing in the magistrate division, to have
the property appraised as provided in this subsection.
' (b) The election by the taxpayer may be included in the
petition, or may be made by a separate petition in a form and
filed as prescribed by the rules of the tax court. The clerk of
the court shall give notice of the election by the taxpayer to
the applicable county assessor.
' (c) If the taxpayer elects as provided under this paragraph
to have the real property appraised, there shall be no hearing in
the magistrate division and the magistrate shall appoint an
independent fee appraiser to appraise the property. The appraisal
by the appointed appraiser shall be in writing and signed by the
appraiser. For the purpose of the proceeding, the appraisal shall
constitute the real market or specially assessed value of the
property and shall be incorporated in the determination of the
magistrate.
' (d) The taxpayer shall pay to the appraiser appointed under
paragraph (c) of this subsection a reasonable fee for the
appraisal services rendered by the appraiser. + } ' .
In line 33, delete 'by the judge of the tax court' and insert
'under the personnel plan established by the Chief Justice of the
Supreme Court pursuant to ORS 1.008'.
On page 3, after line 18, insert:
' { + SECTION 5a. + } { + Records. + } { + (1) The records
of the tax court magistrate division shall include information as
to the dates cases are filed and the dates decisions are issued.
' (2) At the time of preparation biennially of consolidated
budgets for submission to the Legislative Assembly under ORS
8.125, for petitions or appeals filed after July 1, 1996, the
State Court Administrator shall prepare and submit to the
Legislative Assembly general statistical information as to the
amount of time required by the tax court magistrate division to
reach its decisions. + }
' { + SECTION 5b. + } { + If Senate Bill 192 becomes law,
section 26, chapter _____, Oregon Laws 1995 (Enrolled Senate Bill
192) (amending ORS 305.485), is repealed.'. + }
In line 20, after '(1)' delete the rest of the line and delete
lines 21 through 45 and insert 'Plaintiffs or petitioners filing
a complaint or petition in the tax court shall pay a filing fee
for each complaint or petition as follows:
' (a) If a small claims procedure is elected, $10.
' (b) For a complaint or petition in the magistrate division,
$25.
' (c) For a complaint or petition in the regular division, $50.
' (d) If a complaint or petition is specially designated under
section 11 of this 1995 Act for hearing in the regular division,
a fee of $50.'.
On page 4, delete lines 1 through 39.
In line 40, delete '(3)' and insert '(2)'.
On page 5, line 1, delete '(4)' and insert '(3)' and after
'proceeding' delete the rest of the line and insert ' before the
tax court judge involving'.
In lines 7 through 11, restore the bracketed material.
In line 8, delete 'department' and insert 'magistrate'.
In line 11, delete 'under this section' and insert 'before the
tax court judge' and delete 'department' and insert '
magistrate'.
Delete lines 12 through 15.
In line 19, delete '(5)' and insert '(4)'.
After line 21, insert:
' { + SECTION 6a. + } ORS 305.437 is amended to read:
' 305.437. { + (1) + } Whenever it appears to the Oregon Tax
Court that proceedings before it have been instituted or
maintained by a taxpayer primarily for delay or that the
taxpayer's position in such proceeding is frivolous or
groundless, damages in an amount not to exceed $5,000 shall be
awarded to the Department of Revenue by the Oregon Tax Court in
its judgment. Damages so awarded shall be paid within 10 days
after the judgment becomes final. If the damages remain unpaid,
the department may collect the amount awarded in the same manner
as income taxes are collected under ORS 314.430.
' { + (2) As used in this section, a taxpayer's position is '
frivolous' if there was no objectively reasonable basis for
asserting the position. + } ' .
On page 6, after line 3, insert:
' (4) A county assessor who is aggrieved by an order of the
county board of equalization or the county board of ratio review
may appeal from the order as provided in this section, ORS
305.280 and 305.560.'.
In line 25, restore '90' and delete '60'.
In line 29, delete '60' and insert '90'.
In line 34, restore '90'.
In line 35, delete '60'.
In line 36, restore '90' and delete '60'.
In line 39, restore '30' and delete '60'.
On page 7, line 17, after '(b)' insert 'The clerk of the tax
court shall serve certified copies of all complaints and
petitions on the Department of Revenue.' and delete 'of Revenue'.
In line 19, delete 'Oregon' and delete line 20 and insert '
rules of practice and procedure promulgated by the tax court.'.
In line 35, delete '60-day period' and insert 'period for
filing an appeal'.
On page 8, line 8, delete 'assigned for hearing' and insert '
heard'.
In line 9, before the period insert 'unless specially
designated by the tax court judge for hearing in the regular
division. In any matter arising under the ad valorem tax laws and
involving a county or county assessor that is designated for
hearing in the regular division, the Department of Revenue shall
be substituted for the county as a party'.
After line 15, insert:
' (4)(a) Subject to the rules of practice and procedure
established by the tax court, a magistrate is not bound by common
law or statutory rules of evidence or by technical or formal
rules of procedure, and may conduct the hearing in any manner
that will achieve substantial justice. A hearing may be conducted
in person or by telephone. Magistrates may confer with each other
in order to reach a decision on any matter.
' (b) All written magistrate decisions shall be mailed to the
parties to the appeal and to the Department of Revenue.'.
In line 16, delete '(4)' and insert '(5)(a)' and delete '
final' and insert 'written'.
In line 18, delete 'final' and insert 'written' and after the
period delete the rest of the line and delete line 19 and insert:
' (b) If a decision of a magistrate involves any matter arising
under the ad valorem tax laws and a county was a party to the
proceeding before the magistrate, the Department of Revenue may
file a notice of appeal whether or not the department had
intervened in the proceeding before the magistrate. In such
cases, the department shall appear before the tax court judge in
any proceeding on appeal.
' (c) If a decision of a magistrate involves any matter arising
under the ad valorem tax laws and a party other than a county
appeals the decision to the tax court judge, the Department of
Revenue shall be the respondent.
' (d) Appeal to the judge of the tax court is the sole and
exclusive remedy for review of a written decision of a
magistrate.'.
In line 20, delete '(5)' and insert '(6)'.
Delete lines 22 through 29 and insert:
' (7) If no appeal is taken to the tax court judge within 60
days, the decision of the magistrate shall become final. The tax
court shall enter a judgment enforcing all final decisions of the
magistrate, which judgment shall be binding upon all parties.
Upon the final determination of any ad valorem tax matter, either
in a proceeding before the magistrate division or in a small
claims procedure, ORS 305.440 (2) shall be applicable.'.
In line 36, after 'magistrate' insert 'or the Department of
Revenue'.
In line 40, after 'magistrate' insert 'or the department'.
In line 42, delete 'stockholder' and insert ' shareholder'.
In line 43, after 'magistrate' insert 'or the department'.
In line 44, delete 'stockholder' and insert ' shareholder'.
In line 45, after the period insert 'The S corporation must
designate in writing a tax matters shareholder authorized to
represent the S corporation.'.
On page 9, line 3, after 'magistrate' insert 'or the
department'.
Delete lines 8 through 11 and insert:
' (6) In a small claims procedure, a taxpayer may be
represented by any of the persons described in subsections (1) to
(5) of this section or by any other person permitted by the tax
court.'.
In line 13, after 'magistrate' insert 'or department'.
In line 14, after 'magistrate' insert 'or department'.
In line 19, after 'magistrate' insert 'or department'.
In line 20, after 'magistrate' insert 'or department'.
On page 10, line 20, restore the bracketed material and before
the period insert 'or before a complaint specially designated for
hearing in the regular division under section 11 of this 1995 Act
is heard'.
On page 12, line 2, after the period delete the rest of the
line and delete line 3 and insert 'All proceedings in the regular
division of the tax court shall be reported unless waived by the
parties with the consent of the court. The ex-'.
In line 4, after the period insert 'Proceedings before the
magistrate division shall not be reported.'.
Delete lines 8 and 9 and insert:
' (3) In any proceeding before a magistrate or before the tax
court judge in which confidential business records, tax returns
or documents containing trade secrets are to be introduced into
evidence, upon motion of a party to the proceeding, the
magistrate or judge may make such protective orders as'.
In line 10, after 'records' insert 'or the information
contained therein'.
In line 12, after the period insert 'Complaints, pleadings and
other filings containing confidential business record
information, tax return information or trade secret information
shall be subject to the provisions of this subsection.'.
On page 13, line 24, restore the bracketed material.
In line 26, after 'taxpayer' insert 'or county assessor'.
In line 43, after 'law' insert 'or lack of substantial evidence
in the record to support the tax court's decision or order' and
restore the bracketed material.
In lines 44 and 45, restore the bracketed material.
In line 44, delete 'equity cases' and insert 'actions at law'.
On page 14, lines 1 and 2, restore the bracketed material.
On page 15, line 38, restore '90' and delete '60'.
In line 39, restore '90-day' and delete '60-day'.
On page 17, line 43, restore '90' and delete '60'.
In line 44, restore '90-day' and delete '60-day'.
On page 18, delete lines 19 through 25 and insert:
' (3) Notwithstanding any other provision of law, filing of
proof of a timely federal appeal under subsection (2) of this
section shall extend the time for appeal to the tax court in
accordance with this subsection. The person shall notify the
department in writing within 30 days after the federal appeal is
finally resolved. The department shall review the issues raised
by the federal appeal and shall make a determination of the
effect upon the person's state income or excise tax liabilities.
The department shall then issue a refund, notice of denial of
refund or notice of assessment, as appropriate, to the person. If
the person disagrees with the department's action, the person may
file a complaint or petition with the tax court with 60 days
after the date of the department's action as provided under ORS
305.405 to 305.555.'.
On page 19, line 11, after the first 'the' delete the rest of
the line and insert 'Oregon Tax Court.'.
On page 25, line 12, restore '90' and delete '60'.
In line 18, delete 'Director'.
In line 19, delete 'of the Department of Revenue' and insert
'tax court' and restore '90' and delete '60'.
In line 34, delete '60' and restore '90'.
In line 41, delete 'director' and insert 'tax court'.
In line 42, delete '60' and restore '90'.
On page 34, lines 30 and 31, restore the bracketed material.
After line 44, insert:
' { + SECTION 66a. + } ORS 306.116 is amended to read:
' 306.116. (1) The { - Department of Revenue may - }
{ + tax court shall + } order a change or correction applicable
to a separate assessment of property to the assessment and tax
roll for the current tax year or for either of the two tax years
immediately preceding the current tax year, or for any or all of
those tax years, if all of the following conditions exist:
' (a) For the tax year to which the change or correction is
applicable, the property was or is used primarily as a dwelling
(or is vacant) and was and is a single-family dwelling, a
multifamily dwelling of not more than four units, a condominium
unit, a manufactured structure or a floating home.
' (b) The change or correction requested is a change in value
for the property for the tax year and it is asserted in the
request and determined by the { - department by order and no
appeal is taken from the order, or determined by the Oregon - }
tax court
{ - or the Supreme Court by order that constitutes a final
determination of the matter, - } that the difference between the
real market value of the property for the tax year and the value
on the assessment and tax roll for the tax year is equal to or
greater than 20 percent.
' (2) For purposes of this section, 'current tax year' has the
meaning given the term under ORS 306.115.
' (3) The remedy provided under this section is in addition to
all other remedies provided by law.'.
On page 36, line 42, restore '90' and delete '60'.
On page 41, line 20, restore '30' and delete '60'.
On page 46, line 1, restore '30' and delete '60'.
On page 52, lines 9 through 22, restore the bracketed material
and delete the boldfaced material.
In line 9, delete 'Appeal from' and insert 'A request for a
conference on'.
In line 11, delete 'An appeal of' and insert 'A request for a
conference on'.
In line 13, delete 'an appeal' and insert 'a request for a
conference'.
In line 14, delete 'hearings' and insert 'conferences'.
In line 15, delete 'appeals' and insert 'conferences'.
In line 17, delete 'An appeal' and insert 'A request for a
conference'.
In line 21, delete 'hearings' and insert 'conferences'.
In line 22, delete 'appeals' and insert 'conferences'.
On page 55, delete lines 25 through 35 and insert:
' { + NOTE: + } Section 96 was deleted by amendment.
Subsequent sections were not renumbered.'.
On page 61, line 9, restore '30' and delete '60'.
In line 12, restore '30' and delete '60'.
In line 20, restore '30' and delete '60'.
In line 45, restore the bracketed material and delete 'in a
hardship situation'.
On page 62, line 3, restore the bracketed material.
In line 32, after 'including' insert 'informal conferences
and'.
After line 40, insert:
' { + SECTION 112a. + } ORS 305.875 is amended to read:
' 305.875. { + Taxpayer rights. + } In any meeting or
communication with the Department of Revenue, including but not
limited to audits, conferences, interviews { - , hearings - }
and any other meeting or communication between the taxpayer and
the department, the taxpayer shall have the following rights,
unless waived by the taxpayer:
' (1) The right to an explanation, by an officer or employee of
the department before or during the meeting of:
' (a) The audit, conference { - , hearing - } or meeting
process and the taxpayer's rights under such process; and
' (b) The collection process and the taxpayer's rights under
such process.
' (2) The right to make an audio recording of any meeting
relating to the determination or collection of any tax with the
department representative, using the taxpayer's own equipment,
and at the taxpayer's own expense.
' (3) If the department makes an audio recording of the
meeting, the taxpayer has the right to advance notice of the
recording and a copy of the recording upon request. The taxpayer
shall reimburse the department the reasonable cost of the copy.
' (4) The right to consult with an attorney, certified public
accountant, enrolled agent, or an other person permitted to
represent a taxpayer at any meeting before the department, if the
taxpayer clearly states to the department representative at any
time during any meeting, that the taxpayer wishes to consult with
the person. This subsection does not apply to a meeting initiated
by an administrative subpoena.
' (5) The right to be represented by anyone who is permitted to
represent the taxpayer before the department, as provided under
ORS 305.230 and 305.245.
' (6) The right not to be present, if represented, at the
meeting unless subpoenaed by the department pursuant to ORS
305.190, or other laws of this state.'.
On page 63, delete lines 14 through 45 and delete page 64 and
insert:
' { + SECTION 116. + } { + Applicability. + } { + (1)
Except as provided in this section, this Act becomes operative on
September 1, 1996.
' (2)(a) For petitions or appeals filed with the Department of
Revenue before January 1, 1996, the department shall issue a
final determination before December 31, 1996. If the department
is unable to make a final determination within that time, the
department shall petition the tax court judge for transfer of
jurisdiction of the petition or appeal to the tax court for
determination.
' (b)(A) If the tax court judge denies the department's
petition for transfer, the department shall make a final
determination on the merits within 30 days after the date the
department's petition for transfer is denied. If the department
fails to make a final determination on the merits within the
30-day period, the petition or appeal shall be deemed granted in
favor of the taxpayer on the date of the denial.
' (B) If the department's petition for transfer is denied by
the tax court judge and the petition or appeal on the merits is
deemed granted in favor of the taxpayer, the department, county
assessor or other opposing party may appeal the 'deemed granted '
petition or appeal within 30 days after the date the petition or
appeal is deemed granted, and thereafter the tax court shall have
jurisdiction to determine the petition or appeal upon the merits
in the same manner as an appeal or petition filed after the
operative date of this Act.
' (c) If the tax court judge grants the department's petition
for transfer, the department shall transfer the appeal to the tax
court within 10 days after the petition is granted.
' (3)(a) For petitions or appeals on the merits filed with the
department on or after January 1, 1996, and before September 1,
1996, the department shall hear and decide the appeal within one
year after the operative date of this Act. If the department is
unable to make a final determination within the one-year period,
the department shall petition the tax court judge for transfer of
jurisdiction of the petition or appeal to the tax court.
' (b)(A) If the tax court judge denies the department's
petition for transfer, the department shall make a final
determination on the merits within 30 days after the date the
department's petition for transfer is denied. If the department
fails to make a final determination on the merits within the
30-day period, the petition or appeal shall be deemed granted in
favor of the taxpayer on the date of the denial.
' (B) If the department's petition for transfer is denied by
the tax court judge and the petition or appeal on the merits is
deemed granted in favor of the taxpayer, the department, county
assessor or other opposing party may appeal the 'deemed granted '
petition or appeal within 30 days after the date the petition or
appeal is deemed granted and thereafter, the tax court shall have
jurisdiction to determine the petition or appeal upon the merits
in the same manner as an appeal or petition filed after the
operative date of this Act.
' (c) If the tax court judge grants the department's petition
for transfer, the department shall transfer the appeal to the tax
court within 10 days after the petition is granted and the tax
court shall have jurisdiction to determine the petition or appeal
upon the merits in the same manner as an appeal or petition filed
after the operative date of this Act. + }
' { + SECTION 117. + } { + Department; court action before
operative date. + } { + The Department of Revenue and the Oregon
Tax Court make take any action after the effective date of this
Act and before its operative date to enable the department and
court properly to exercise their duties, functions and powers on
or after the operative date of sections 1 to 114 of this Act,
including but not limited to:
' (1) The acquisition, assumption, disposition or transfer of
facilities, services or information and the employment of
personnel.
' (2) The adoption or promulgation of rules and procedures. + }
' .
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