IN THE MAGISTRATE DIVISION
OF THE OREGON TAX COURT
Property Tax
RONALD D. WIEBE
Plaintiff,
v.
MARION COUNTY ASSESSOR,
Defendant.
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No. 010830D
DECISION
Plaintiff appeals Defendant’s denial of the three percent discount and interest
charged to him for failure to remit his 2000-2001 property tax payment by the statutory
deadline, November 15.
A telephone trial was held on Thursday, December 13, 2001. Mr. Ronald Wiebe
represented himself. Ms. Gloria Roy, Assistant County Counsel, appeared on behalf of
Defendant. Mr. Rex Weisner, Senior Tax Clerk, testified on behalf of Defendant.
STATEMENT OF FACTS
Mr. Wiebe testified that between the hours of 5:00 p.m. and 7:00 p.m. on November
15, 2000, he hand delivered his 2000-2001 Marion County real property tax payment to
the Salem Post Office. At the same time, Mr. Wiebe testified that he also delivered his
Clackamas County real property tax payment to the Salem Post Office.
In May, 2001, Mr. Wiebe received a notice from Marion County stating that he owed
additional tax for the tax year. After further review, Mr. Wiebe found that his November
payment was not received by Defendant before the November 15 deadline. Defendant
provided him with a copy of the envelope containing the payment, showing that it was
postmarked November 16, 2000. Mr. Wiebe testified that he did not receive a similar late
payment notice from Clackamas County.
DECISION
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Mr. Wiebe questioned how one tax payment can be late and another on time when
mailed at the same time at the same place. Mr. Wiebe contacted Clackamas County. He
submitted a letter from Ms. Lynne Newhouse, Clackamas County Assessor and Tax
Collector, stating that the county does not keep “the envelopes for payments received on or
before the 15th of the month of November.” Ms. Newhouse enclosed a copy of the county’s
receipt detail. The receipt stated that on November 20, 2000, payment in the amount of
$742.55 was tendered in the form of a personal check.
Mr. Wiebe also submitted a copy of his US Bank Uni-Statement. He indicated that
Check No. 008367 in the amount of $3,668.99 was made in payment of his Marion County
real property taxes. Mr. Wiebe submitted a copy of the canceled check made payable to
Marion County Tax Collector, dated November 15, 2000, in the amount of $3,668.99. He
also indicated that Check No. 008366 in the amount of $1,949.27 was made in payment of
his Clackamas County real property taxes. Mr. Wiebe did not submit to the court a copy of
the canceled check made payable to Clackamas County. Ms. Roy asked Mr. Wiebe to
explain why the amount of Check No. 008366 was $1,949.27 instead of $742.55 as shown
on the Clackamas County receipt detail he submitted to the court. Mr. Wiebe was unable
to explain the difference in the two amounts.
Mr. Weisner testified that he has been a Marion County senior tax clerk for the last
eight years and prior to that he was a tax clerk. He testified that it is the general policy of
Marion County to use the postmark or mailed date as the received date for real property
tax payments. Mr. Weisner referenced the Oregon Administrative Rule (OAR)
150.305.820 which reads:
“* * *If the writing or remittance is not received within the period of time,
it must be shown by satisfactory proof to the Department that the writing or
remittance was placed in the hands of the United States Postal Service or in the
hands of a private express carrier on or before the due date.”
DECISION
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He also quoted from OAR 150.305.820(1)(d) which reads:
“If the writing or remittance bears a postmark date * * * dated later than
the due date, it will be treated as having been mailed on or before the due date
provided the person who is required to file the writing or remittance establishes
by sworn affidavit that it was actually deposited on or before the due date * * * in
a government mail receptacle before the last collection of mail for the place in
which it was deposited.”
In this case, Mr. Weisner testified that the envelope containing Mr. Wiebe’s 20002001 Marion County real property tax payment was postmarked November 16. Mr.
Weisner testified that he verified with the Salem Post Office that the last pick-up on
November 15 was 5:30 p.m. According to Mr. Weisner, after reviewing the postmark and
Mr. Wiebe’s statement that he hand delivered the payment to the Salem Post Office no
later than 7:00 p.m., Defendant concluded that Mr. Wiebe’s payment was not made before
the last mail pick-up on November 15. Defendant denied Mr. Wiebe the three percent
discount.
COURT'S ANALYSIS
Taxpayers are entitled to a three percent discount when paying their annual property
taxes if a full or partial payment is made on or before November 15. See ORS
311.505(3).1 Mr. Wiebe alleges that he made his payment on time because he delivered
his tax payment to the Salem Post Office before 7:00 p.m. on November 15. Unfortunately,
the postmark stamped by the Salem Post Office on the envelope containing his payment
was November 16, indicating that his payment was received after the last pick-up on
November 15.
The law governing a taxpayer’s payments transmitted through the United States mail
is found in ORS 305.820(1) which reads:
1
All references to the Oregon Revised Statutes are to 1999.
DECISION
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“Any writing or remittance required by law to be filed with or made to
the * * * tax collector (designated in this section as the ‘addressee’) which is:
“(a) Transmitted through the United States mail or by private express
carrier, shall be deemed filed or received on the date shown by the cancellation
mark or other record of transmittal, or on the date it was mailed or deposited
if proof satisfactory to the addressee establishes that the actual mailing or
deposit occurred on an earlier date.” (Emphasis added.)
The legislature “conferred broad discretion upon individual tax collectors” when it
inserted the statutory language that the proof must be “satisfactory to the addressee.”
Jackson County Tax Collector v. Dept. of Rev., 12 OTR 498, 500 (1993). “[S]atisfactory
to the addressee” implies that individual tax collectors can set policies which vary from
county to county; “there is no basis for inferring a need for uniformity.” Id.
The court’s standard of review is not to substitute its judgment on the
reasonableness of Defendant’s actions but rather to determine if Defendant abused its
administrative discretion in concluding that Mr. Wiebe’s payment was not timely. See
Dickinson v. Davis, 277 Or 665, 673-675 (1977). According to Mr. Weisner, Defendant’s
policy is to follow the guidelines set forth in the OAR, specifically that the postmark must be
prior to November 15. The postmark on Plaintiff’s envelope clearly read November 16.
In reviewing other evidence offered by Plaintiff, Defendant has the discretion to
determine what evidence is “satisfactory.” Plaintiff’s check in payment of his Marion
County property taxes was not processed by his bank until November 28, 2000. Marion
County requests taxpayers to send property tax payments to a bank “lock box” for
immediate deposit. However, according to Mr. Weisner, bank personnel are instructed not
to process any payments with a postmark date later than November 15. These payments
are sent to Defendant for further review prior to being deposited. Because Plaintiff’s
check was not processed by his bank until November 28, it is likely Defendant’s late
DECISION
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payment review procedures were followed.
Further, Plaintiff testified that the Clackamas County receipt was proof that
Clackamas County received his 2000-2001 property tax payment by the statutory due date
and it was mailed on the same day at the same time as his Marion County tax payment.
Unfortunately, there was an unexplained discrepancy in the amount ($742.56) stated on the
Clackamas County receipt and the amount ($1,949.27) of Check No. 008366 which
Plaintiff testified was made in payment of his Clackamas County real property taxes.
Plaintiff was unable to explain the discrepancy.
This court has previously noted that the legislature gave the decision making power
to Defendant. Hirsch v. Multnomah County Assessor, OTC-MD No. 001071D (February
28, 2001). “Lacking any abuse of discretion, the court cannot substitute its judgment for
that of defendant’s.” (Id.) In this case, the court concludes that Defendant did not abuse its
discretion in finding Plaintiff’s evidence unsatisfactory. Plaintiff’s request that the court
grant him the three percent discount and abate interest is denied.
CONCLUSION
IT IS THE DECISION OF THE COURT that Plaintiff’s appeal is denied.
Dated this _____ day of January, 2002.
______________________________________
JILL A. TANNER
MAGISTRATE
IF YOU WANT TO APPEAL THIS DECISION, FILE A COMPLAINT IN THE REGULAR
DIVISION OF THE OREGON TAX COURT, FOURTH FLOOR, 1241 STATE ST.,
SALEM, OR 97301-2563. YOUR COMPLAINT MUST BE SUBMITTED WITHIN 60
DAYS AFTER THE DATE OF THE DECISION OR THIS DECISION BECOMES FINAL
AND CANNOT BE CHANGED.
THIS DOCUMENT WAS SIGNED BY MAGISTRATE TANNER ON JANUARY 25,
2002. THE COURT FILED THIS DOCUMENT ON THAT SAME DATE.
DECISION
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