Opinion
TC-MD 180335R
12-27-2018
COLEEN M. RIMER, Plaintiff, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant.
This Final Decision of Dismissal incorporates without change the court's Decision of Dismissal, signed by Magistrate Davis and entered December 6, 2018. The court did not receive a statement of costs and disbursements within 14 days after its Decision of Dismissal was entered. See Tax Court Rule-Magistrate Division (TCR-MD) 16 C(1).
ALLISON R. BOOMER MAGISTRATE JUDGE.
This matter came before the court on Defendant's Motion to Dismiss on the grounds that Plaintiff failed to appeal within the 90 days required by ORS 305.280(2).
Plaintiff appeals Defendant's Notice of Proposed Refund Adjustment and Offset (Notice), which was mailed to Plaintiff on May 3, 2018. The Notice became final on June 2, 2018. The Complaint was filed in the Tax Court on September 18, 2019. ORS 305.280(2) provides the applicable time for filing an appeal:
The court's references to the Oregon Revised Statutes (ORS) are to 2017.
"An appeal under ORS 323.416 or 323.623 or from any notice of assessment or refund denial issued by the Department of Revenue with respect to a tax imposed under ORS chapter 118, 308, 308A, 310, 314, 316, 317, 318, 321 or this chapter, or collected pursuant to ORS 305.620, shall be filed within 90 days after the date of the notice. An appeal from a proposed adjustment under ORS 305.270 shall be filed within 90 days after the date the notice of adjustment is final."
Plaintiff asserts she was unable to timely appeal Defendant's Notice because she "was unable to comprehend the rules" due to PTSD and her age. The court views Plaintiff's argument as a request for equitable tolling of the limitation period. In looking at Defendant's Notice the court finds the instruction clear:
"Appeal to the Oregon Department of Revenue. If you disagree with this notice, you have the right to appeal. You can either submit a written objection or request a conference.
"Appeal to the Oregon Tax Court. If you don't file your appeal with us within 30 days…you must appeal directly to the Magistrate Division of the Oregon Tax Court. If you didn't submit a written objection or request a conference, you must file your appeal within 120 days of the date of our original notice informing you of the adjustment to your refund." (Emphasis in original.)
In DeArmond v. Dept. of Rev., 14 OTR 112 (1997), this court stated that equitable tolling is generally not available to extend a limitations period to file a complaint seeking a refund. The court noted that prior Supreme Court cases have applied the doctrine of equitable tolling "in only two limited circumstances": where the timely filed complaint was defective and when a party was tricked by his/her adversary. Id. at 117 (citations omitted). Neither of those situations is alleged in this case. Although it is understandable that Plaintiff's condition may make it more difficult for her to meet the deadlines for filing an appeal, the court does not find her situation meets the extraordinary circumstances described above. Plaintiff's complaint was untimely and thus Defendant's Motion to Dismiss is granted. Now, therefore, IT IS THE DECISION OF THIS COURT that Defendant's Motion to Dismiss is allowed. Plaintiff's appeal is dismissed.