Chapter 305

NOTES OF DECISIONS

Policy of efficient and effective tax collection makes doctrine of estoppel against government in tax cases one of rare application. Pacific Conference v. Dept. of Rev., 7 OTR 429 (1978)

LAW REVIEW CITATIONS: 9 WLJ 193-260 (1973); 48 WLR 147 (2011)

305.057

NOTES OF DECISIONS

Director of Department of Revenue is required to delegate in writing authority to enter into installment agreement with taxpayer for installment payments of tax liability and to file delegation with Secretary of State in advance of entering into installment agreement, if delegated department employee is to determine that agreement will facilitate collection of liability. Christensen II v. Dept. of Rev., 23 OTR 155 (2018)

305.110

COMPLETED CITATIONS: Emanuel Lutheran Charity Bd. v. Dept. of Rev., 4 OTR 410 (1971), aff’d 263 Or 287, 502 P2d 251 (1972)

305.190

NOTES OF DECISIONS

In cases where Department of Revenue seeks to subpoena various records of a taxpayer and taxpayer refuses to comply, department may apply to the Oregon Tax Court for an order that taxpayer produce records or attend and testify or otherwise comply with the department’s demand. In re Eola Concrete Tile and Products Co., 8 OTR 128 (1979), aff’d 288 Or 241, 603 P2d 1181 (1979)

Oregon Constitution limits authority of Department of Revenue to subpoena records to extent that department seeks records relevant to lawful investigation and issues subpoena no broader than needs of particular investigation. Dept. of Rev. v. D.R. Johnson Lbr. Co., 289 Or 679, 617 P2d 603 (1980); Dept. of Rev. v. Universal Foods Corp., 12 OTR 231 (1992), aff’d 318 Or 78, 862 P2d 1288 (1993)

Department inquiries and actions taken in furtherance of inquiries are “necessary” if relevant to purposes of lawful investigation and objective of demonstrable, practical need. State ex rel Dept. of Rev. v. Capital Shelters, 295 Or 561, 668 P2d 1214 (1983)

Department of Revenue is not required to pass rules interpreting statute prior to issuing subpoena. Dept. of Rev. v. Universal Foods Corp., 318 Or 78, 862 P2d 1288 (1993)

Subpoena power is not limited to information located in Oregon nor to Oregon resident enterprises. Dept. of Rev. v. Universal Foods Corp., 318 Or 78, 862 P2d 1288 (1993)

305.192

NOTES OF DECISIONS

When determining whether department may disclose information regarding industrial property, court must determine whether need for disclosure of information outweighs potential harm of disclosure to owner including use of information by competitors, unions, suppliers, customers and any entities or persons who affect operations of owner. Lamb-Weston, Inc. v. Dept. of Rev., 12 OTR 253 (1992)

Statute does not limit disclosure of information to confidential information. Lamb-Weston, Inc. v. Dept. of Rev., 12 OTR 253 (1992)

Owner of industrial property has burden of proving that potential harm from disclosure of information outweighs need for disclosure of information. Lamb-Weston, Inc. v. Dept. of Rev., 12 OTR 253 (1992)

305.220

NOTES OF DECISIONS

Interest rate described in ORS 305.222 applies to Forest Products Harvest Tax and Western Oregon Privilege Tax deficiencies for period beyond 60 days’ delinquency. Thomas Creek Lumber and Log Co. v. Dept. of Revenue, 19 OTR 259 (2007), aff’d 344 Or 131, 178 P3d 217 (2008)

305.222

NOTES OF DECISIONS

Interest rate described in this section applies to Forest Products Harvest Tax and Western Oregon Privilege Tax deficiencies for period beyond 60 days’ delinquency. Thomas Creek Lumber and Log Co. v. Dept. of Revenue, 19 OTR 259 (2007), aff’d 344 Or 131, 178 P3d 217 (2008)

305.230

See annotations under ORS 305.239.

305.239

(formerly 305.230)

NOTES OF DECISIONS

Under this section, Department of Revenue must refuse recognition of claim of representation until taxpayer notifies department that representative has been authorized to act on his behalf. Barron v. Dept. of Rev., 11 OTR 305 (1989)

305.263

NOTES OF DECISIONS

Under former similar statute

Generalized claim that filing return might result in self-incrimination does not make process to compel unconstitutional. Department of Revenue v. McCann, 293 Or 522, 651 P2d 717 (1982)

Where department establishes reasonable cause to believe person may have taxable income, burden is on person to establish that demand is baseless. Department of Revenue v. McCann, 293 Or 522, 651 P2d 717 (1982)

305.265

NOTES OF DECISIONS

This section provides that assessments of tax shall be final after expiration of appeal period. Case v. Dept. of Rev., 11 OTR 1 (1988); Arnold v. Dept. of Rev., 12 OTR 69 (1991)

Notice that is not sent to last known address of taxpayer is ineffective to commence appeal period. Stokes v. Dept. of Rev., 11 OTR 56 (1988); Boardman v. Dept. of Rev., 12 OTR 44 (1991)

Letter accompanying deficiency payment stating that “payment is made under protest” was written objection under this section. Amco-West Properties, Inc. v. Dept. of Rev., 11 OTR 468 (1990)

Even though plaintiff’s tax return was audited and accepted with no change, Department of Revenue was not estopped from later assessing deficiency based on audit of S corporation of which plaintiff was shareholder, because this provision permits department to adjust return if subsequent information indicates correction is necessary. Simone v. Dept. of Rev., 12 OTR 5 (1991)

Where return is not filed and department assesses deficiency on basis of “best of its information and belief,” to challenge deficiency, appeal must be taken within required time. Arnold v. Dept. of Rev., 12 OTR 69 (1991)

If notice of assessment is correctly mailed, this section does not require actual receipt of notice. Esnard v. Dept. of Rev., 12 OTR 73 (1991)

Assessment is “final” both for collection and tax court appeal purposes if administrative appeal is not initiated within 90 days. Van Tran v. Dept. of Rev., 320 Or 170, 880 P2d 924 (1994)

“Last known address” of taxpayer is determined at time notice of assessment and determination is sent. Morris v. Dept. of Revenue, 320 Or 579, 889 P2d 1294 (1995)

“Last known address” is address on last filed tax return unless department has actual notice of address change, requiring exercise of reasonable diligence to determine new address. Morris v. Dept. of Revenue, 320 Or 579, 889 P2d 1294 (1995)

Inclusion of certification that adjustments are made in good faith is necessary for notice of deficiency to be valid. Preble v. Dept. of Revenue, 331 Or 320, 14 P3d 613 (2000)

Notice of deficiency need not contain handwritten signature or variant of word “certified.” Dept. of Revenue v. Faris, 19 OTR 178 (2006)

Requirement that notice of deficiency be certified by Department of Revenue does not require that department employee sign notice by hand. Department of Revenue v. Faris, 345 Or 97, 190 P3d 364 (2008)

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.270

NOTES OF DECISIONS

Provision for notice of proposed adjustment and tendering taxpayer an opportunity to be heard prior to reducing taxpayer’s claim for refund is mandatory and Department of Revenue’s failure to provide notice and hearing prior to making adjustments in refund claim denied plaintiffs’ procedural due process in violation of Fourteenth Amendment to United States Constitution. Kent v. Dept. of Revenue, 9 OTR 356 (1983)

Refund provisions of this section are limited to taxes “shown on a report or return filed by the person with the department” and do not act to extend period of time in which taxpayer may contest assessment. Estate of Frances Tate v. Dept. of Rev., 10 OTR 343 (1987)

Requirement that notices and determinations set forth rights of appeal does not apply to notices issued by county assessor. Ecumenical Ministries v. Dept. of Rev., 12 OTR 302 (1992), aff’d317 Or 576, 858 P2d 449 (1993)

Refund provisions do not apply to supplement special refund provisions applicable to invalidly assessed taxes under ORS 305.765. Atkins v. Dept. of Rev., 320 Or 713, 894 P2d 449 (1995)

Issuance of notice of deficiency pursuant to ORS 305.265 satisfies requirement to send claimant notice of proposed adjustment. Simson v. Dept. of Revenue, 15 OTR 89 (2000)

Date of successful garnishment by Department of Revenue is date of payment of tax for purposes of commencing period within which claim must be filed. Patton v. Dept. of Revenue, 18 OTR 111 (2004)

Except with regard to paid income taxes, appeal from Department of Revenue action and procedure for seeking refund are independent and mutually exclusive remedies. Patton v. Dept. of Revenue, 18 OTR 111 (2004)

No “examination or audit” of taxpayer’s refund claim occurred under subsection (8) of this section where Department of Revenue’s facial review of taxpayer’s claim for refund, when compared with department’s own payment records, was basis for department’s finding of taxpayer’s miscalculation, which resulted in department’s payment of refund to taxpayer in amount that was greater than amount requested in taxpayer’s claim for refund. Vesta Corp. v. Dept. of Rev., 22 OTR 539, slip op. TC 5253 (2018)

Fact that Department of Revenue paid refund to taxpayer in amount greater than amount requested in taxpayer’s refund claim does not render subsection (8) of this section inapplicable, because variation in amount paid did not arise from examination or audit of refund claim. Vesta Corp. v. Dept. of Rev., 22 OTR 539, slip op. TC 5253 (2018)

Notice of deficiency is subset of category of notices of proposed adjustment contemplated under subsection (3) of this section and thus may be used for purposes of determining whether extensions to time limitations provided by subsection (8) of this section are available. Vesta Corp. v. Dept. of Rev., 22 OTR 539, slip op. TC 5253 (2018)

305.275

NOTES OF DECISIONS

Under former similar statute

Plaintiffs were entitled to appeal to Department of Revenue under this section when significant change of position by assessor affecting their property occurred too late to allow them to appeal to board of equalization. Moore v. Dept. of Rev., 4 OTR 573 (1971)

Jurisdiction over question of applicability of partial exemption lies not with board of equalization under ORS 309.100, but pursuant to provisions of [former] ORS 306.520. Heenan and Domogalla v. Dept. of Rev., 5 OTR 78 (1972)

COMPLETED CITATIONS: Emanuel Lutheran Charity Bd. v. Dept. of Rev., 4 OTR 410 (1971), aff’d 263 Or 287, 502 P2d 251 (1972)

In general

Appealing party from an order of Multnomah County Board of Equalization reducing true cash value must be Department of Administrative Services of Multnomah County, acting through its appropriate officer. Multnomah County v. Dept. of Revenue, 8 OTR 422 (1980)

After valuation of property is placed on tax rolls and affirmed by a board of equalization, assessor may not correct “value judgment” and is not aggrieved party for purposes of this section. Wynne v. Dept of Revenue, 9 OTR 378 (1983)

Appeal under this section of alleged overvaluation of property in one tax year was insufficient to invoke department’s supervisory authority under ORS 306.115 to correct erroneous valuations made in earlier years. ESCO Corp. v. Dept. of Rev., 307 Or 639, 772 P2d 413 (1989)

Where legislature recognized taxpayer’s interest in [former] ORS 311.215 and assessor denied relief plaintiff was seeking, plaintiff-taxpayer was aggrieved by act or omission of assessor and has standing to seek writ of mandamus against county assessor. NW Medical Lab. v. Good Samaritan Hospital, 309 Or 262, 786 P2d 718 (1990)

Appeal of disqualification for special farm use assessment must be made directly to department. Glancy v. Dept. of Rev., 12 OTR 117 (1991)

Where taxpayer challenges property assessment, de novo nature of proceeding permits assessor to introduce evidence establishing market value higher than appealed valuation and to obtain increased assessment. Clark v. Dept. of Revenue, 14 OTR 221 (1997)

To be “aggrieved,” taxpayer must have immediate claim of wrong. Kaady v. Dept. of Revenue, 15 OTR 124 (2000)

To prove “aggrievement,” requires showing that person suffered injury or wrong that creates a private interest in outcome that is different from interest of member of general public. Seneca Sustainable Energy, LLC v. Department of Revenue, 363 Or 782, 429 P3d 360 (2018)

LAW REVIEW CITATIONS

In general

48 WLR 147 (2011)

305.280

NOTES OF DECISIONS

If appeal is not taken within appeal period specified, assessment is final. Arnold v. Dept. of Rev., 12 OTR 69 (1991)

Failure to furnish assessor copy of formal board order as required under ORS 309.110 is good and sufficient cause for assessor’s failure to appeal value within time required under this section and assessor may appeal value ordered under ORS 306.115. Umatilla County Assessor v. Dept. of Rev., 12 OTR 121 (1992)

Where board of equalization adjusted assessed value of shopping center’s tax accounts, assessor was entitled to appeal adjustment within same period available for taxpayer appeal. Bear Creek Plaza v. Dept. of Rev., 12 OTR 272 (1992)

Taxpayer’s belief that appeal by business partner on identical issue would protect taxpayer’s rights did not excuse failure to file appeal within time limit. Vanderweele v. Dept. of Rev., 12 OTR 511 (1993)

Date of successful garnishment by Department of Revenue is date of payment of tax for purposes of commencing period within which appeal must be filed. Patton v. Dept. of Revenue, 18 OTR 111 (2004)

Limitation of extended appeal period under this section to taxes imposed under ORS chapters 314, 316, 317 and 318 prevents applying extended appeal period under ORS 321.560 to determination of timber taxes. Patton v. Dept. of Revenue, 18 OTR 111 (2004)

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.287

NOTES OF DECISIONS

This section applies to reviews by county board of property tax appeals, Magistrate Division and Regular Division but not to appeals from Regular Division to Supreme Court because Supreme Court is limited in scope of review by ORS 305.445 that does not permit Supreme Court to engage in original fact finding, so long as appeal to board, Magistrate Division or Regular Division was filed after effective date of this section. Village at Main Street Phase II v. Dept. of Revenue, 356 Or 164, 339 P3d 428 (2014)

305.288

NOTES OF DECISIONS

Taxpayer must allege 20 percent difference in real market value of land and improvements to land between taxpayer’s position and as listed on assessment roll. Gray v. Dept. of Rev., 23 OTR 220 (2018)

Court could not grant county’s motion for summary judgment that plaintiff’s property failed to satisfy statutory conditions for appeal, because evidence showed genuine issue of material fact regarding whether property was “dwelling,” as used in this section. Helms Deep, LLC v. Dept. of Revenue, 25 OTR 210 (2023)

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.305

NOTES OF DECISIONS

Where taxpayer does not file good faith petition with Department of Revenue contesting tax, filing of tax appeal with federal agency is insufficient to prevent suspension of occupational license. Sherrer v. Dept. of Revenue, 15 OTR 156 (2000)

305.403

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.405

NOTES OF DECISIONS

The Tax Court has jurisdiction under ORS 305.410 and 118.410 and this section to determine the right to property on the death of a decedent for purposes of determining state inheritance taxes. Estate of Anderson v. Dept. of Rev., 6 OTR 339 (1976)

Tax Court’s jurisdiction over Local Budget Law matters is not conferred by this section but by [former] ORS 294.485. Gugler v. Baker County Education Serv. Dist., 86 Or App 549, 740 P2d 798 (1987), aff’d 305 Or 563, 754 P2d 900 (1988)

305.410

NOTES OF DECISIONS

The Tax Court has jurisdiction under ORS 305.405 and 118.410 and this section to determine the right to property on the death of a decedent for purposes of determining state inheritance taxes. Estate of Anderson v. Dept. of Rev., 6 OTR 339 (1976)

City business and property taxes enacted pursuant to city charter were not “tax laws of this state” subject to exclusive jurisdiction of Oregon Tax Court. Jarvill v. City of Eugene, 289 Or 157, 613 P2d 1 (1980)

ORS 358.475 to 358.565 are not tax laws which, under this section, can be reviewed only by the Tax Court. Multnomah County v. Talbot, 56 Or App 235, 641 P2d 617 (1982), aff’d 294 Or 478, 657 P2d 684 (1983)

Because a claim is not one “arising under the tax laws” unless it has some bearing on tax liability, plaintiff’s tort claims against tax assessors are not within the subject-matter jurisdiction of the Tax Court. Sanok v. Grimes, 294 Or 684, 662 P2d 693 (1983)

A claim which seeks to establish factual predicate for forest land status is within jurisdiction of the Tax Court. Sanok v. Grimes, 294 Or 684, 662 P2d 693 (1983)

Dispute over whether ORS 294.080 (3) applies to tax moneys held in county treasurer’s unsegregated account comes within circuit court jurisdiction and not within tax court jurisdiction. Clackamas Co. Ed. Serv. Dist. v. Clackamas Co., 86 Or App 259, 739 P2d 587 (1987), Sup Ct review denied

Tax Court has jurisdiction under this section to determine validity of section 11b, Article XI of Oregon Constitution. Savage v. Munn, 12 OTR 145 (1992), aff’d 317 Or 283, 856 P2d 298 (1993)

Where Department of Revenue held it had no jurisdiction and could not provide relief and plaintiff’s complaint and motion for summary judgment raised question of law under ORS 311.806, Tax Court had jurisdiction over plaintiff’s appeal. PGE v. Dept. of Rev., 12 OTR 311 (1992)

Issues that arise as defenses to foreclosure action are not subject to exclusive jurisdiction of tax court. Multnomah County v. Finance America Corp., 120 Or App 30, 852 P2d 262 (1993), Sup Ct review denied

Tax court has jurisdiction over nontax questions that arise out of same facts as tax matter properly before court, provided resolution of nontax question does not have substantial nontax consequences. Knapp v. City of Jacksonville, 18 OTR 22 (2004), aff’d 342 Or 268, 151 P3d 143 (2007)

Determinations related to issuance and enforceability of timber tax warrants are outside of Tax Court jurisdiction and must be resolved in circuit court. Perkins v. Dept. of Revenue, 22 OTR 370 (2017)

305.418

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.419

NOTES OF DECISIONS

Taxpayer’s failure to pay taxes assessed and all penalties and interest due on or before filing complaint constituted jurisdictional defect. Leffler Industries v. Dept. of Revenue, 299 Or 481, 704 P2d 97 (1985); Lowry v. Dept. of Revenue, 15 OTR 221 (2000)

Employee withholding tax described in ORS 316.167 is not tax “imposed upon or measured by net income.” Zamani v. Dept. of Revenue, 19 OTR 318 (2007)

Because filing of affidavit of undue hardship with complaint, as required under this section, is not jurisdictional requirement, taxpayer’s failure to file affidavit with complaint did not support dismissal of complaint. Scott v. Dept. of Revenue, 358 Or 795, 370 P3d 844 (2016)

Range of circumstances may constitute “undue hardship,” as used in this section, from inability to maintain minimal standard of living to excessive loss caused by having to sell property at distress sale price. Peterson v. Dept. of Rev., 23 OTR 554 (2019); Lamka v. Dept. of Rev., 23 OTR 566 (2019)

Taxpayers must pay entire amount of notice of assessment issued by Department of Revenue, plus penalties and interest, before appeal may be made to regular division of Oregon Tax Court, even when magistrate division of tax court had found certain amounts of assessment in favor of taxpayers and department had conceded those amounts, because notice of assessment is only plausible source for court to determine if this section’s requirements are satisfied. Hillenga v. Dept. of Revenue, 25 OTR 191 (2020)

Court may order taxpayers to provide additional information when taxpayers seek stay of payment of assessed tax based on undue hardship. Hillenga v. Dept. of Revenue, 25 OTR 191 (2020)

Tax Court did not err in dismissing taxpayer’s complaint when taxpayer failed to pay assessment or submit documentation of undue financial hardship if assessment were paid, and also did not err in refusing to consider evidence unrelated to financial hardship. Picker v. Dept. of Rev., 370 Or 673, 523 P3d 109 (2022)

305.425

NOTES OF DECISIONS

Presumption that official duty has been regularly performed does not relate to the correctness of the value ascribed to property by the assessor. J.R. Widmer, Inc. v. Dept. of Rev., 261 Or 371, 494 P2d 854 (1972)

It was permissible for county assessor’s appraisers to revise their presentation of value before the tax court following their experiences in the Board of Equalization and Department of Revenue hearing, under provision of this section that all proceedings before tax court shall be original, independent proceedings tried de novo. Price v. Dept. of Rev., 7 OTR 18 (1977)

Where an issue is not considered at the hearing before the board of equalization, but is raised at the Department of Revenue hearing, the issue is properly considered by the Tax Court. Oregon Broadcasting Co. v. Dept. of Rev., 287 Or 267, 598 P2d 689 (1979)

Writ of review is available before Oregon Tax Court. Rosboro Lumber Co. v. Heine, 289 Or 909, 618 P2d 960 (1980)

Under this section, Oregon Tax Court conducting “original, independent...and de novo” proceedings in property evaluation is not restricted to values previously alleged by parties on appeal to Department of Revenue. Mid Oil Company v. Dept. of Revenue, 297 Or 583, 686 P2d 1020 (1984)

When Tax Court admits new evidence, it must evaluate that evidence and reach its own conclusions. Reed v. Dept. of Rev., 310 Or 260, 798 P2d 235 (1990)

On de novo review, Supreme Court reaches decision without regard to either party’s prelitigation position. Reed v. Dept. of Rev., 310 Or 260, 798 P2d 235 (1990)

Whether earlier administrative determination in tax case should be given preclusive effect for subsequent years depends on formality of determination and other listed factors. Fisher Broadcasting, Inc. v. Dept. of Rev., 321 Or 341, 898 P2d 1333 (1995)

Scope of review by regular division of tax court extends to procedural issues raised by decisions of magistrate division. Norpac Foods, Inc. v. Dept. of Revenue, 15 OTR 331 (2001)

Requirement for de novo review prevents reliance on record created in magistrate division absent consent of parties. Dept. of Revenue v. Guardian Management Corp., 16 OTR 17 (2002)

Requirement that judicial review be de novo does not apply to review of Department of Revenue decision under ORS 306.115. ADC Kentrox v. Dept. of Revenue, 19 OTR 91 (2006)

Where tax court magistrate division dismisses action on procedural grounds, de novo review by regular division is limited to determining whether magistrate abused discretion. Freitag v. Dept. of Revenue, 19 OTR 144 (2006)

Party may appeal from separate part of tax magistrate’s decision without necessarily putting other parts of magistrate’s decision at issue before tax court. Work v. Department of Revenue, 363 Or 745, 429 P3d 375 (2018)

305.427

NOTES OF DECISIONS

Once taxpayer has introduced substantial evidence showing a value of property different than that asserted by the assessor, the burden of going forward shifts. Publishers Paper Co. v. Dept. of Rev., 270 Or 737, 530 P2d 88 (1974)

Where the Department of Revenue presents no testimony of evidential value as to true cash value and the plaintiff presents some testimony which carries weight with the court, then the plaintiff has met the burden of proof required by this section. Astoria Plywood Corp. v. Dept. of Rev., 6 OTR 40 (1975)

Tax Court’s duty is to determine value based upon preponderance of evidence before it, and it is not confined to values pled by parties. Bylund v. Dept. of Rev., 7 OTR 532 (1978)

Role of Supreme Court as “fact finder” is to try case “anew upon the record”, so Supreme Court should not go outside record for evidence on definition of terminology or on methods of appraisal. Oregon Broadcasting Co. v. Dept. of Rev., 287 Or 267, 598 P2d 689 (1979)

Appraisal based on sales of “comparable” properties failed to meet preponderance of evidence rule where residence had been on market at price lower than assessed valuation for several years and had never sold. Martin v. Dept. of Rev., 8 OTR 141 (1979)

On appeal from Revenue Department’s valuation of newly constructed banking facility, where there was unrefuted testimony that property had one of highest traffic count locations in city and that major new branch bank was established farther out on same street, taxpayer did not sustain burden of proving “economic obsolescence” to reduce valuation. The Oregon Bank v. Dept. of Rev., 8 OTR 291 (1980)

Where plaintiffs were uncertain as to date and contents of letter of protest they claim to have sent to defendant and introduced no evidence of settlement with Internal Revenue Service and were unable to explain at what level or on what basis it was resolved and defendant had three witnesses that testified no letter of protest or appeal was received, defendant’s order dismissing plaintiffs’ appeal from audit of 1981 income tax return was sustained. Martin v. Dept. of Rev., 11 OTR 162 (1989)

In determining whether to exercise discretion in order to protect confidential information under this section, court must: 1) determine whether information is confidential; 2) determine whether disclosure will cause actual harm; and 3) weigh possible harm against benefit to public resulting from disclosure. Lamb-Weston, Inc. v. Dept. of Rev., 11 OTR 448 (1990)

Canceled check that is labeled and not inconsistent with other evidence is best evidence of deductible expense. Reed v. Dept. of Rev., 310 Or 260, 798 P2d 235 (1990)

Where claim for additional taxes was first raised in department’s amended answer to taxpayer’s appeal, burden of proof regarding new claim was on taxpayer. Mentor Graphics Corp. v. Dept. of Rev., 12 OTR 521 (1993)

COMPLETED CITATIONS: J.R. Widmer, Inc. v. Dept. of Rev., 4 OTR 361 (1971), aff’d 261 Or 371, 494 P2d 854 (1972)

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.437

NOTES OF DECISIONS

Damages were properly imposed against taxpayer under this section where taxpayer’s position was “groundless” in that: (1) no evidence was offered that, if believed, would support a finding and resulting judgment for taxpayer; and (2) there was no caselaw, statute, rule or regulation that supported taxpayer’s claim to relief. Detrick v. Dept. of Rev., 311 Or 152, 806 P2d 682 (1991)

Court may award damages under this section and attorney fees under ORS 20.105 in same case. Sesma v. Dept. of Revenue, 16 OTR 29 (2002)

Taxpayer assertion of frivolous claim, defense or argument is enough for award of penalty under this section without regard to any other claim, defense or argument taxpayer may assert. Jimenez v. Dept. of Rev., 370 Or 543, 522 P3d 522 (2022)

305.445

NOTES OF DECISIONS

Unless an issue is raised in Tax Court, Supreme Court will not consider it. Oregon Broadcasting Co. v. Dept. of Rev, 287 Or 267, 598 P2d 689 (1979)

Judgment of Tax Court is not appealable under this section where judgment does not finally dispose of claim. Dept. of Rev. v. Universal Foods Corp., 311 Or 537, 815 P2d 1237 (1991)

“Substantial evidence” is term of art drawn from administrative law and means that, when reviewing Tax Court’s findings of fact, court considers whether record, viewed as whole, would permit reasonable person to make that finding. Khalaf v. Dept. of Rev., 368 Or 563, 495 P3d 1258 (2021)

305.447

NOTES OF DECISIONS

Criteria for awarding attorney fees is that department interpretation of statute contradicts clear meaning disclosed by text, context or legislative history. Swarens v. Dept. of Revenue, 320 Or 669, 890 P2d 1374 (1995); Preble v. Dept. of Revenue, 331 Or 599, 19 P3d 335 (2001)

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.487

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.490

NOTES OF DECISIONS

Guidelines for award of attorney fees to taxpayer or executor in action involving income taxes include assessment of actions of both Dept. of Revenue and taxpayer, benefit to general public and what is just and equitable. Romani v. Dept. of Rev., 10 OTR 64 (1985)

“Reasonable expenses” under this section is intended to reimburse items similar to those defined by ORCP 68A (2). Romani v. Dept. of Rev., 10 OTR 64 (1985)

No statutory authority existed for corporate taxpayers to recover “reasonable expenses” and since issues for resolution were resolved on legal principles, taxpayer’s expert witnesses were not necessary. PGE v. Dept. of Rev., 11 OTR 78 (1988)

Tax Court had no statutory authority to award attorney fees on appeal involving property tax assessments because this section allows for award of attorney fees only in personal income tax, gift and inheritance cases. Dennehy v. Dept. of Rev., 308 Or 423, 781 P2d 346 (1989)

Tax court will consider whether laws, administrative rules or tax forms are ambiguous as valid factor under ORS 20.075 in determining whether to award taxpayer attorney fees. Dept. of Revenue v. Rakocy, 15 OTR 389 (2001)

Where right to attorney fees arises under this section, no pleading asserting right to attorney fees need be filed. McKee v. Dept. of Revenue, 18 OTR 58 (2004)

Obligation of Department of Revenue to pay attorney fees arising under this section exists whether or not department actively participates in proceeding. McKee v. Dept. of Revenue, 18 OTR 58 (2004)

Governmental agency’s erroneous but reasonable interpretation of statute that increases taxpayer’s tax basis is not alone sufficient basis for discretionary award of attorney fees. Clackamas County Assessor v. Village at Main Street, 352 Or 144, 282 P3d 814 (2012)

Like tax court, Magistrate Division is authorized to award costs and disbursements. Wihtol I v. Dept. of Revenue, 21 OTR 260 (2013)

Tax Court finding “in favor of the taxpayer” is satisfied for purpose of awarding attorney fees and costs if department’s or assessor’s request for adjustment is rejected, even if taxpayer’s request for adjustment also is rejected. Ellison v. Dept. of Revenue, 362 Or 148, 404 P3d 933 (2017)

Court lacked authority to award attorney fees for legal expenses incurred by taxpayer in being represented in remand dispute, because remand dispute is not “proceeding” within meaning of this section, which authorizes attorney fees to be awarded to taxpayer that is prevailing party in proceedings. Comcast Corp. V v. Dept. of Rev., 23 OTR 8 (2018)

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.501

NOTES OF DECISIONS

Except for limited situations described in this section, taxpayer may not initiate appeal in regular division of tax court. Wynne v. Dept. of Revenue, 342 Or 515, 156 P3d 64 (2007)

305.560

NOTES OF DECISIONS

“Pursuant to this chapter” refers to all appeal rights governed by ORS chapter 305 procedures regardless of chapter under which appeal right is created. J.R. Simplot Co. v. Dept. of Rev., 11 OTR 309 (1989)

Where department fails to act on appeal seeking correction of error under ORS 306.115, failure is not treated as denial of appeal. J.R. Simplot Co. v. Dept. of Rev., 11 OTR 309 (1989)

Forty-five-day period for appeal from order or notice of assessment begins with actual receipt of notice or order. U.S. West Communications, Inc. v. Dept. of Rev., 12 OTR 322 (1992)

Sixty-day appeal period for decisions of department begins to run on date decision is mailed. Mongeon v. Dept. of Revenue, 319 Or 303, 876 P2d 752 (1994)

Service of notice on nonappealing taxpayer within specified time limit is mandatory to perfect appeal unless taxpayer elects to waive enforcement of requirement. Multnomah County v. Dept. of Revenue, 13 OTR 422 (1995), aff’d 325 Or 230, 935 P2d 426 (1997); Tosterud v. Ellis, 329 Or 439, 988 P2d 377 (1999)

“Taxpayer” to be served and having right of appearance is person who pays taxes on subject property. Tosterud v. Ellis, 14 OTR 367 (1998), aff’d 329 Or 439, 988 P2d 377 (1999)

305.565

LAW REVIEW CITATIONS: 48 WLR 147 (2011)

305.570

NOTES OF DECISIONS

Appealing party must be both aggrieved by order and directly affected by order. NW Alliance for Market Equality v. Dept. of Rev., 318 Or 129, 862 P2d 1300 (1993)

“Directly affected by” means one on whom order has immediate personal effect without intervening instrumentality or determining influence. NW Alliance for Market Equality v. Dept. of Rev., 318 Or 129, 862 P2d 1300 (1993); Columbia Sun, Inc. v. Dept. of Rev., 321 Or 514, 900 P2d 1039 (1995)

Property lease is intervening instrument that prevents lessee from qualifying as taxpayer “aggrieved by and directly affected by” department order. Kaup v. Dept. of Revenue, 13 OTR 432 (1996)

305.575

NOTES OF DECISIONS

Tax Court had jurisdiction to consider taxpayer’s liability for corporate income tax, where Department of Revenue first asserted such liability before Tax Court. Capital One Auto Finance, Inc. v. Dept. of Rev., 363 Or 441, 423 P3d 80 (2018)

305.580

NOTES OF DECISIONS

Taxpayer is precluded from using general refund provision where government mistakenly classifies tax with regard to section 11b, Article XI, Oregon Constitution. Smith v. Multnomah County Board of Commissioners, 12 OTR 377 (1993), aff’d 318 Or 302, 865 P2d 356 (1994)

Tax court has jurisdiction to determine whether assessment is subject to constitutional limits on property taxes, but cannot address merits of assessment. Martin v. City of Tigard, 14 OTR 517 (1999), aff’d 335 Or 444, 72 P3d 619 (2003)

305.583

NOTES OF DECISIONS

Water improvement district formed under ORS chapter 554 is unit of government for purposes of filing suit under this section. Comeaux v. Water Wonderland Improvement Dist., 12 OTR 132 (1992), aff’d 315 Or 562, 847 P2d 841 (1993)

Requirement that appeal be filed within 60 days does not violate federal due process. Tilbury v. Multnomah County, 13 OTR 157 (1994), aff’d 322 Or 112, 902 P2d 577 (1995)

Petition seeking determination whether tax assessment or other charge is subject to limitations of section 11b, Article XI of Oregon Constitution, must be timely filed where local government makes specified type of classification or characterization notwithstanding that assessment or charge may not be imposed until later time. ZRZ Properties, LLC v. City of Portland, 18 OTR 284 (2005)

305.587

NOTES OF DECISIONS

City storm drainage user charge based upon amount of “impervious surface area on a property” is within limits of section 11b, Article XI of Oregon Constitution, and to extent paid in excess of limits, must be refunded. Dennehy v. City of Gresham, 12 OTR 194 (1992), aff’d 314 Or 600, 841 P2d 633 (1992)

305.620

ATTY. GEN. OPINIONS: Hotel-motel tax on university dormitories without state consent, (1974) Vol 36, p 887

305.625

ATTY. GEN. OPINIONS: Hotel-motel tax on university dormitories without state consent, (1974) Vol 36, p 887

305.765 to 305.785

NOTES OF DECISIONS

Where disparate treatment of state and federal employees’ retirement benefits impermissibly discriminated against federal employees, these sections required Department of Revenue to refund only taxes that were collected and paid, and became due, in or after year in which action resulting in invalidation of state law was instituted. Ragsdale v. Dep. of Rev., 312 Or 529, 823 P2d 971 (1992); Anderson v. Dept. of Rev., 313 Or 1, 828 P2d 1001 (1992)

Interest on refund following invalidation of tax is only available where state unsuccessfully appeals to United States Supreme Court. Pendell v. Dept. of Rev., 315 Or 608, 847 P2d 846 (1993)

Lack of interest payment on refund does not violate takings clause, due process clause or equal protection clause of Oregon Constitution. Pendell v. Dept. of Rev., 315 Or 608, 847 P2d 846 (1993)

305.765

NOTES OF DECISIONS

Department of Revenue concession that tax is unconstitutional does not forestall court’s ability to review and order refund. Carmichael Columbia Oil, Inc. v. Dept. of Rev., 13 OTR 97 (1994)

Reference to “other statute authorizing refund” does not make refunds under ORS 305.270 available for invalid taxes assessed prior to year challenge was made. Atkins v. Dept. of Rev., 320 Or 713, 894 P2d 449 (1995)

305.820

NOTES OF DECISIONS

Local tax collector policy regarding acceptable proof of timely mailing was subject to review only on abuse of discretion basis. Jackson County Tax Collector v. Dept. of Revenue, 12 OTR 498 (1993)

305.823

(formerly 307.215)

NOTES OF DECISIONS

Prohibition on local taxation of “amounts paid” for exchange access or telephone services applies only to taxes levied directly on payments by service subscribers. AT&T Communications v. City of Eugene, 177 Or App 379, 35 P3d 1029 (2001), Sup Ct review denied

305.890

NOTES OF DECISIONS

Determination that installment agreement will facilitate collection of tax liability requires Director of Department of Revenue to offer installment agreement if agreement will make collecting tax easier for department, when costs and benefits are weighed. Christensen II v. Dept. of Rev., 23 OTR 155 (2018)