IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
LANE COUNTY ASSESSOR,
Plaintiff,
v.
ZELLNER & ZELLNER, LLC,
Defendant.
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TC-MD 030664C
ORDER
This matter is before the court on Defendant's request for dismissal because
Plaintiff did not file its affidavit of service required by ORS 305.5601 within the period for
filing an appeal. Defendant also requests costs and expenses.
Telephone oral argument was held August 5, 2003. Bill Weeks appeared for
Plaintiff. David Carmichael, Attorney at Law, appeared on behalf of Defendant. Prior to
that proceeding, Plaintiff, by and through its county counsel, filed a Memorandum In
Opposition To Defendant’s Motion To Dismiss Complaint.
I. STATEMENT OF FACTS
Plaintiff, the county assessor in this case, appealed from an order of the county
board of property tax appeals that reduced the real market and assessed values of the
taxpayer’s property. The Complaint was filed on April 17, 2003.2 Attached to the
Complaint was a document entitled “AFFIDAVIT OF SERVICE.” That document reads as
follows:
“I hereby certify that on April 16, 2003, a copy of this Complaint was
served by certified mail on Zellner & Zellner, LLC, being deposited in the
United States Postal Service, at Eugene, Oregon, a full, true and correct
1
All references to the Oregon Revised Statutes (ORS) are to 2001.
2
Based on the post office cancellation mark appearing on the envelope containing the Complaint.
ORDER TC-MD 030664C
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copy of this Complaint addressed to: David Carmichael, Attorney, 777 High
Street, Suite 150, Eugene, Or 97401.”
The affidavit was signed by Jim Gangle, the Lane County Assessor. Defendant timely
responded by filing an Answer on May 19, 2003, that included the following response:
“As an AFFIRMATIVE DEFENSE, Plaintiff’s Complaint does not
include the affidavit of service by certified mail on the taxpayer required by
ORS 305.560 (3). An affidavit is a written declaration made voluntarily and
confirmed by the oath or affirmation of the party making it, taken before a
notary public having authority to administer such oath. * * * The form entitled
Affidavit of Service is not an affidavit since the written statement fails to
contain the required oath or affirmation before a notary public.
(Emphasis in original.) In response to the Answer, Plaintiff mailed an affidavit to the court
on June 3, 2003. The validity of that affidavit is not at issue. However, Defendant insists
that
ORS 305.560 requires the affidavit to be filed with the court within the period for filing an
appeal or the Complaint should be dismissed. Plaintiff responds that the statute does not
require that proof of service be filed contemporaneously with the Complaint; that such
proof is not jurisdictional and that the Oregon Rules of Civil Procedure (ORCP) applicable
in other courts in this state provide that where the summons is properly served, “failure to
make or file a proper proof of service shall not affect the validity of the service.” ORCP 7
F(4). Finally, with respect to the jurisdictional argument, Plaintiff cites ORS 12.020(2),
which allows service of the summons to be filed within 60 days after the filing of the
complaint.
II. ANALYSIS
ORS 305.560 sets forth the requirements for the filing of a Complaint in the Oregon
Tax Court. Subsection (1) spells out the procedure to be followed when the taxpayer is the
appealing party and subsection (3) governs the filing of a Complaint by someone other
ORDER TC-MD 030664C
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than the taxpayer. ORS 305.560. When a taxpayer appeals, the complaint must be filed
with the court within the statutory appeal period.
ORS 305.560(1). The court then serves the defendant, who in property tax cases is
typically the county assessor. However, when the assessor is the appealing party, that
office must not only file a complaint with the court per subsection (1) it must also serve a
copy of the complaint on the taxpayer within the statutory appeal period.
ORS 305.560(3). The assessor must also serve the court with an affidavit showing such
service. Id.
Plaintiff’s initial notice to the court in this case, titled “Affidavit of Service,” did not
constitute a valid affidavit because it was not “sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary 58 (1999 7th ed). Therefore, the
question before the court is whether Plaintiff’s subsequent, valid affidavit, filed with the
court after the time has run for the filing of the complaint, is timely.
The statute provides, in relevant part:
“In any case in which the taxpayer is not the appealing party, a copy of
the complaint shall be served upon the taxpayer by the appealing party by
certified mail within the period for filing an appeal, and an affidavit showing
such service shall be filed with the clerk of the tax court. A copy of the order
of the department, if any, shall be attached to the complaint. The taxpayer
shall have the right to appear and be heard.”
ORS 305.560(3).
“In trying to ascertain the meaning of a statutory provision, and thereby to inform the
court’s inquiry into legislative intent, the court considers rules of construction of the statutory
text that bear directly on how to read the text.” PGE v. Bureau of Labor and Industries,
317 Or 606, 611, 859 P2d 1143 (1993). In suggesting that the clause “within the period
for filing an appeal” applies to the affidavit, the doctrine of the last antecedent, “a longORDER TC-MD 030664C
3
recognized grammatical principle used in interpreting the text of statutes,” is instructive:
“‘Referential and qualifying words and phrases, where no contrary intention
appears, refer solely to the last antecedent. The last antecedent is “the last
word, phrase, or clause that can be made an antecedent without impairing
the meaning of the sentence.” Thus a proviso usually is construed to apply to
the provision or clause immediately preceding it. The rule is another aid to
discovery of intent or meaning * * *.
“‘Evidence that a qualifying phrase is supposed to apply to all antecedents
instead of only to the immediately preceding one may be found in the fact
that it is separated from the antecedents by a comma.’”
State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996), citing Norman J. Singer, 2A
Sutherland Statutory Construction § 47.33, at 270 (5th ed 1992) (footnotes omitted).
Applying these principles to ORS 305.560(3), the statute can be divided into two
independent nonrestrictive clauses imposing responsibilities on an appealing party other
than the taxpayer. First, the complaint must be served on the taxpayer by certified mail
within the period for filing an appeal. The requirement that “a copy of the complaint shall
be served upon the taxpayer by the appealing party” immediately precedes the qualifier
“by certified mail within the period for filing an appeal.”
ORS 305.560(3). Second, the appealing party must file an affidavit of service with the
clerk of the Tax Court. No specific time for filing the affidavit is set forth in the statute. The
requirement of an affidavit appears in the statute after the timing qualifier, and is preceded
by a comma and the word “and.” The requirement, or qualifier, does not apply to the
affidavit requirement. Defendant would like the court to add the words “within the period
for filing an appeal” at the end of the sentence, after the words “and an affidavit showing
such service shall be filed with the clerk of the tax court,” thereby setting a time period.
However, in construing statutes, courts are instructed “not to insert what has been omitted,
or to omit what has been inserted.” ORS 174.010.
ORDER TC-MD 030664C
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The court’s rule also requires an appealing party that is not a taxpayer to “file an
affidavit with the court attesting to the service.” TCR-MD 1 C. However, like the statute,
this language does not specify when the affidavit needs to be filed.
Defendant argues that the apparent underlying purpose of the affidavit is to provide
the court with assurance of service on the defendant, because the assessor is fulfilling the
role ordinarily undertaken by the court in the more typical taxpayer appeal. That may be
the reason the legislature required an affidavit when the appealing party is other than the
taxpayer; however, as explained above, the legislature did not explicitly state that the
affidavit had to be filed within the period for filing an appeal. The court agrees with Plaintiff
that proof of service is not jurisdictional; where the complaint is timely filed and timely
served on the taxpayer by the assessor, the complaint is not invalid nor the appeal untimely
because a valid affidavit is not filed until after the expiration of the time for filing an appeal.
The court finds it unnecessary to analyze in any depth Plaintiff’s arguments
regarding ORCP 7 F(4) and ORS 12.020(2) because neither ORS 305.560(3) nor
TCR-MD 1 C requires that the affidavit be filed within the period for filing an appeal.
Moreover, TCR 7 F(1), although inapplicable to the Magistrate Division, comes the closest
to spelling out a timing requirement and it merely requires that proof of service be
“promptly returned.”3 And, to the extent that other rules of procedure apply, Plaintiff is
correct that TCR 7 F(4), like its ORCP counterpart, downplays the importance of proof of
service provided the complaint (and, in the case of an appeal by someone other than the
taxpayer, the summons) is timely filed.
The court notes that Defendant has not been prejudiced in any way by Plaintiff’s
3
In an appeal to the regular division by someone other than the taxpayer, the party appealing
serves a certified copy of the complaint on the taxpayer along with a summons. TCR 7 A (1). The
summons must be “promptly” returned to the court with proof of service. Id.
ORDER TC-MD 030664C
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failure to contemporaneously file an affidavit with the Tax Court within the period for filing
an appeal. The Complaint was timely filed with the court and a copy of the Complaint was
timely served on Defendant. Plaintiff informed the court in writing that a copy of the
Complaint had been served on Defendant on a specific date that was within the appeal
period. Defendant had actual notice of the assessor’s appeal. An affidavit, required by
the statute and the court’s rule, was subsequently filed with the court. Although Plaintiff’s
initial notice to the court did not constitute a valid affidavit, the subsequent filing of a valid
affidavit satisfied the statutory requirement because, as explained above, the affidavit
need not be filed within the time for filing an appeal.
III. CONCLUSION
For the reasons outlined above, the court concludes that Defendant’s request for
dismissal of the Complaint should be denied because the subsequent filing of a valid
affidavit by Plaintiff satisfies the statutory requirement in ORS 305.560(3). Now, therefore,
IT IS ORDERED that Defendant’s request for dismissal is denied.
Dated this _____ day of September, 2003.
_________________________________
DAN ROBINSON
MAGISTRATE
THIS INTERIM ORDER MAY NOT BE APPEALED. ANY CLAIM OF ERROR IN
REGARD TO THIS ORDER SHOULD BE RAISED IN AN APPEAL OF THE
MAGISTRATE'S FINAL WRITTEN DECISION WHEN ALL ISSUES HAVE BEEN
RESOLVED. ORS 305.501.
THIS DOCUMENT WAS SIGNED BY MAGISTRATE DAN ROBINSON ON
SEPTEMBER 16, 2003. THE COURT FILED THIS DOCUMENT ON SEPTEMBER
16, 2003.
ORDER TC-MD 030664C
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