Curtis II v. Dept. of Rev.

IN THE OREGON TAX COURT REGULAR DIVISION

Laurel Ann CURTIS

Plaintiff,

v.

DEPARTMENT OF REVENUE

Defendant.

(TC 4765)

In response to Plaintiff's complaint, Defendant filed a Motion to Dismiss. Plaintiff made no response. Before the court issued a ruling on the motion, Defendant filed another motion, entitled Motion to Dismiss in which it stated that Defendant was renewing its Motion to Dismiss. The court subsequently mailed its Order to Dismiss. Later that same day the court received Plaintiff's objections to both of Defendant's motions. The court, noting that the objections were timely only if measured from the second motion, held that the second motion was a nullity and did not operate to extend the time in which Plaintiff could respond to Defendant's original motion.

Tax Court – Rules

1. The rules of the Tax Court provide taxpayers with a limited time within which to object to an initial Motion to Dismiss; objections will not be considered if filed after that time.

Tax Court – Rules

2. The rules of the Tax Court do not contemplate a "renewal" of a motion and the action of filing such a document serves to muddy the procedural water.

Tax Court – Procedure

3. The filing of a "renewal" of a motion is a nullity and will not serve to extend the time for response to the original version.

Submitted on Defendant's second motion to dismiss.

Laurel Ann Curtis, Plaintiff (taxpayer) filed objections to the motion pro se.

Sally L. Kimsey, Assistant Attorney General, Department of Justice, Salem, filed the motion for Defendant (the department).

Decision rendered August 23, 2006.

HENRY C. BREITHAUPT, Judge.

This matter is before the court on the objections filed by the plaintiff (taxpayer) with respect to the form of judgment submitted by the defendant (the department) in this matter after the issuance of the court's Order Granting Defendant's Motion to Dismiss (the Order Dismissing).

Following the filing of a complaint by the taxpayer, the department filed a motion to dismiss. Within the time allowed for response, taxpayer made no response. (1) The department then filed a document entitled Motion to Dismiss, in the body of which it stated it "renews its motion to dismiss" taxpayer's complaint. The court entered and mailed its Order Dismissing and later that day received written objections from the taxpayer to "both of the defendant's motions to dismiss." Measured from the submission of the "renewal" these objections were timely. The department has now filed a form of judgement based on the Order Dismissing, to which taxpayer also objects.

1-3. As noted, the rules of this court provided taxpayer with a limited time within which to object to the initial Motion to Dismiss and taxpayer did not file timely objections. Those rules do not contemplate a "renewal" of a motion and the action of the department in filing such a document served to muddy the procedural water. The court concludes that the second "motion" was a nullity and did not serve to extend the time for response by the taxpayer. However, given the possibility of confusion on the part of the taxpayer and taking into account the provisions of TCR 12, the court has considered the objections of the taxpayer to the action of the department in seeking dismissal of the case. The court has also considered the arguments made by the taxpayer as to the form of judgment.

Based upon consideration of all writings submitted by the parties, the court concludes that its Order Dismissing was properly decided and entered. The complaint of the taxpayer is dismissed and the form of judgment submitted by the department shall be entered.

Now, therefore,

IT IS SO ORDERED.

1. Taxpayer incorrectly argues that she had 30 days within which to respond. The time for response under TCR 14 is 10 days.