Adair v. Dept. of Rev.
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IN THE OREGON TAX COURT REGULAR DIVISION Property Tax MARILYN E. ADAIR, ) ) Plaintiff, ) ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant, ) ) and ) ) MULTNOMAH COUNTY, ) ) Intervenor-Defendant. ) I. TC 4632 ORDER GRANTING INTERVENORDEFENDANT S MOTION TO DISMISS INTRODUCTION This matter is before the court on a Motion to Dismiss filed by Intervenor-Defendant Multnomah County (the county). The county moves to dismiss the Complaint of Plaintiff (taxpayer) on the grounds that it was not filed in this court within the time allowed by statute. II. FACTS The county made an omitted property assessment in respect of property owned by taxpayer. The parties agree that the notice required by ORS 311.2191 (the 20-day notice) was sent by the 1 All references to the Oregon Revised Statutes (ORS) are to 2001. ORDER GRANTING INTERVENOR-DEFENDANT S MOTION TO DISMISS Page 1. county and received by taxpayer. representative of the county. Taxpayer then met with a Following that, the county corrected the roll by adding to it the property in question. The county sent a notice of that action as required by ORS 311.223(2). unclaimed. That notice was returned to the county as Because taxpayer was away from Portland on a vacation, she apparently did not receive the ORS 311.223(2) notice and did not file in this court within the time permitted by ORS 311.223(4).2 III. ISSUE Must taxpayer s Complaint be dismissed as untimely filed? IV. ANALYSIS In this matter, the county did what it was required to do by statute. Taxpayer s absence from Portland resulted in her not receiving a properly sent notice. The outcome here is dictated by statute. that the statutes required of it. The county did all The statutes create a gap into which some taxpayers or property may fall if mailings are properly made but not received. The burden of avoiding that result has been placed on taxpayer in the property tax system. In this case, taxpayer was aware of the fact that the county 2 One element of delay for taxpayer was that following receipt of her tax bill, she took her first appeal to the county board of property tax appeals (BOPTA). However, appeals as to omitted property assessments may not be made to a BOPTA. ORS 311.223(4). ORDER GRANTING INTERVENOR-DEFENDANT S MOTION TO DISMISS Page 2. was inclined to find omitted property. received and a conference followed. Notice of that was Although the statutory provisions can in some cases be harsh, here the statutory result is less harsh as taxpayer knew that something was afoot and could have inquired as to county action promptly after her return to Portland. Such an inquiry would have resulted in knowledge of county action within the time to file an appeal. ORS 311.223(4) relates to omitted property assessments and requires that a person may appeal to this court within 90 days after the correction of the roll. Even if that route of appeal is not exclusive, the other statutes on appeals and time limits thereon, ORS 305.275 and ORS 305.280, require that appeals be made within 90 days of a taxpayer s actual knowledge of an adverse act, but in no event later than one year from the adverse act. Here, the adverse act was the addition of the property to the assessment roll. Even if taxpayer did not receive mailed notice of that event, she did receive actual notice of it no later than the receipt of the annual tax bill in due course in October or November of 2002. Her appeal here was not made within 90 days of receipt of the tax bill. V. CONCLUSION Taxpayer s Complaint was untimely and must be dismissed. The county s Motion to Dismiss should be granted. Now, therefore, ORDER GRANTING INTERVENOR-DEFENDANT S MOTION TO DISMISS Page 3. /// IT IS ORDERED that Intervenor-Defendant s Motion to Dismiss is granted, and IT IS FURTHER ORDERED that Plaintiff s Complaint is dismissed . Dated this ____ day of January 2004. ______________________________ Henry C. Breithaupt Judge THIS DOCUMENT WAS SIGNED BY JUDGE HENRY C. BREITHAUPT ON JANUARY 29, 2004, AND FILE STAMPED ON JANUARY 29, 2004. THIS IS A PUBLISHED DOCUMENT. ORDER GRANTING INTERVENOR-DEFENDANT S MOTION TO DISMISS Page 4.
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