Opinion
TC 5400
04-08-2021
SCOTT SALISBURY, Trustee, Plaintiff, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
ROBERT T. MANICKE TAX COURT JUDGE.
I. INTRODUCTION
Plaintiff ("Taxpayer") appeals from a Magistrate Division decision in TC-MD 190056G dismissing the complaint in his appeal of property tax assessments for tax years 2014-15 through 2018-19. (Ptf's Compl, Ex 1 at 1 (Order Dismissing Complaint); Def's Decl of Wallace at ¶ 3.) The magistrate dismissed Taxpayer's complaint because Taxpayer refused to comply with the court's order compelling Taxpayer to allow representatives of the Deschutes County Assessor to inspect the property. (Ptf's Compl, Ex 1 at 1.) Defendant (the "Department") seeks summary judgment that the appeal to this Division be dismissed on the grounds that the magistrate acted within his discretion based on the facts before the magistrate. (Def s Mot Summ J at 1.)
A. Facts
The following facts specifically relevant to the magistrate's dismissal order are, unless otherwise noted, undisputed. The property at issue is land and improvements in Deschutes County. (Def's Mot Summ J, Ex C.) When Taxpayer bought the property in 2013, it included one building and three sheds, along with certain site preparation improvements. (See Ptf 's Decl of Scott Salisbury at 1.) As of May 2015, permits had been pulled to construct structures referred to as a "horse barn" and a "riding arena." (See Def's Decl of Sexton, Ex A at 2-3). As of May 2016, a permit had been pulled to construct a single-family dwelling. (See id. at 2.) Representatives of the assessor's office inspected the property in March 2015, May 2016, and April2017. (See id. at 2-3; Def's Decl of Worcester, Ex A at 2-3.) During the April 2017 inspection, the assessor's representative determined that the barn was 100 percent complete. (Def's Decl of Worcester, Ex A at 2-3.) During the same April 2017 inspection, the assessor's representative initially determined that the riding arena was 5 0 percent complete; however, in late 2017 Taxpayer informed the assessor's office that construction of the riding arena had not yet started and supplied the assessor with photographs of trusses on the ground and building material not yet used. In response, the assessor removed the riding arena from the roll. (Id.) During the Apnl 2017 inspection, the assessor also determined that construction of the single-family residence was 61 percent complete. (See Def s Decl of Worcester, Ex A at 2-3.) Taxpayer disagrees as to the residence, stating that it was "complete besides flooring in the living room/master bedroom * * * and some finish tile work in the master bath." (Ptf's Decl of Scott Salisbury at 2.)
Taxpayer stated that h e and h is spouse own th e property through a revocable trust.
Taxpayer at times also mentioned an inspection in 2014. (Statement of Scott Salisbury Oral Argument Jan 15, 2021, at 10:38.) Neither party submitted evidence of an inspection in 2014. In light of the other evidence, the court does not consider a possible 2 014 inspection material to this order.
At each inspection, Taxpayer or his spouse met with the assessor's representative. (See Ptf's Decl of Scott Salisbury at 1 -2.) During the 2016 inspection, the representative met only with Taxpayer's spouse, and the representative took photographs of improvements. (See Def s Decl of Sexton, Ex A at 3.) The accounts of the assessor's representative and of Taxpayer's spouse differ sharply as to the photographs. The assessor's representative states that he obtained permission before taking them. (See Def s Decl of Sexton, ExAat3.) Taxpayer's spouse denies that the representative asked permission. She states that she was unaware at the time that he took any photographs and that she would not have given permission if asked, explaining that, because of Taxpayer's work in law enforcement and their prior experience, the family does everything to avoid advertising their place of residence. (See Ptf's Decl of Dena Salisbury.) During the 2017 inspection, the assessor's representative asked to take photographs of improvements, but Taxpayer expressed concerns, and the representative did not take photographs. (See Def s Decl of Worcester, Ex A at 2; Ptf's Decl of Scott Salisbury at 2.)
Taxpayer's account differs from those of the assessor personnel regarding the degree of access and duration of certain of the inspections;the court considers these differences immaterial to the issue at hand.
Taxpayer asserts that, in November 2017, because he had not received his property tax statement for tax year 2017-18, he viewed the assessor's website to find a way to make payment. (See Ptf's Decl of Scott Salisbury at 2.) While there, he noticed that the assessor's records included "a building that never existed." (Id.) Taxpayer called the assessor's office, took some photographs of the portion of the property in question, and sent the photographs to the assessor to support his point. (See id.) Within a few days, an assessor representative called Taxpayer and agreed to correct the issue. (See id.) In the meantime, Taxpayer concluded that the assessor had applied an erroneously high square footage for the building that existed when Tax payer bought the property, and Taxpayer also concluded that the value the assessor had reported for the horse barn was excessive due to various procedural errors. (See id. at2-3.) A representative of the assessor informed Taxpayer that it was too late to correct the latter two issues and that Taxpayer would have to appeal to the board of property tax appeals ("BOPTA"). (See id. at 3.)
Taxpayer filed an appeal with the BOPTA for tax year 2017-18, which culminated in a hearing held February 23, 2018. (See id.) Before the hearing, Taxpayer conducted his own research and had several conversations with assessor personnel to obtain information about how the assessor had valued the property and to discuss points of disagreement. (See id.) At the BOPTA hearing, Taxpayer asserts that he hadless than 10 minutes to present his case. The assessor's representative then distributed a packet of materials, including photographs from the 2016 inspection that included Taxpayer's "personal equipment and vehicles." (Id.) Taxpayer learned at that moment that the photographs had been taken and was shocked. (See id.) Taxpayer asserts that, at that point his "faith and confidence in the honesty and transparency"of the assessor's office diminished because he perceived a "pattern of dishonesty" and"disregard for personal private property." (Id.) Taxpayer felt "there was no value in allowing the Deschutes County Assessor's Office on our property." (Id.)
1. Case TC-MD 180079R (Not Appealed)
On March 12, 2018, Taxpayer appealed the resulting BOPTA order to the Magistrate Division in what became TC-MD 180079R, involving tax years 2014-15, 2015-16 and 2017-18. (Def's Decl of Wallace, Ex B at 6.) At the initial case management conference on April 25, 2018, Taxpayer re fused to allow a site inspection. (See id.) The magistrate advised the parties to try to resolve inspection disputes without court intervention. On May 7, 2 018, the assessor moved to dismiss the case based on Taxpayer's refusal to allow an inspection, citing an email from Taxpayer that stated: '" [N]o one from the Deschutes County Assessor's Office, or representative of, will ever be allowed on our property again."' (Def's Decl of Wallace, Ex B at 7.) The magistrate denied the assessor's motion as premature because the court had not at that point issued an order requiring Taxpayer to submit to an inspection (See id.) The magistrate instead treated the assessor's motion to dismiss as a motion to compel a site inspection and ordered Taxpayer to contact the assessor to schedule an inspection within 14 days, stating that if Taxpayer did not cooperate the court would grant a new motion to dismiss absent extraordinary circumstances. On June 11, 2018, the assessor filed a new motion to dismiss. The court held another case management conference on June 18, 2018, at which the court asked Taxpayer the nature of his concerns about the inspection. Taxpayer stated that he had security concerns about pictures of his property due to his work in law enforcement. The court suggested that a protective order could limit public dissemination of any information. Taxpayer replied that any order would be insufficient to protect his family. (See id. at 7-8.) The court then ordered Taxpayer to file a response to the assessor's motion to dismiss, no later than June 25, 2018, explaining why the court's suggestion of a protective order would be insufficient to protect Taxpayer's security needs. (See id. at 8.) Taxpayer filed a response stating in part: '"A protective order is not a guarantee that information can not be accessed. Any court ordered protection or sealed document still exist in both the legal and physical sense. * * * [A]nother court order can access those records and documents.'" (Id.)
The appeal in TC-MD 1S0079R apparently was filed in the name of Taxpayer and his spouse. For simplicity, when discussing TC-MD 180079R, the court here after refers to both spouses collect actively"Taxpayer."
The cited portion of the exhibit is a copy of the magistrate's Final Decision of Dismissal in TC-MD 1S0079R. That decision recites that Taxpayer and his spouse filed their complaint in the case on March 12, 2017.(Id.) The court has determined that this is a typographical error and that the complaint in TC-MD 1 S0079Rwas filed onMarchl2, 2018.
Taxpayer's response also asserted that the a ssessor had chosen not to follow the Department's policies to ensure honest, accurate and fair assessment, stating: "If the [assessor] has acquired enough information to generate a tax bill and take our money there should be noneed to reassess to defend their actions."' (Id.) In addition. Taxpayer characterized the inspection as an unreasonable search that would violate his right to privacy and the Fourth Amendment. (Id.)
The magistrate in TC-MD 1800 79R concluded that the assessor's request for a site inspection appeared reasonably calculated to lead to discoverable evidence necessary for trial and stated that Taxpayer's refusal to consider any court-fashioned protective order left the court with "few choices," pointing out that a trial based only on evidence collected from inspections in prior years would not suffice to allow the court to perform its function of determining the real market value. (Id. at 9-10.) On July 31, 2018, the court dismissed Taxpayer's complaint in TC-MD 180079 R, and Taxpayer did not appeal that decision
2. Case TC-MD 190056G
Some months after the dismissal of TC-MD 180 079R, in late 2018 and early 2019, Taxpayer appealed to the BOPTA for the next tax year (tax year 2018-19), was denied relief, and appealed to the Magistrate Division in TC-MD 190056G, where he included claims for relief for tax years 2014-15 through 2017-18. (See Def s Decl of Wallace at 1.) During the initial case management conference in TC-MD 1900 56G, the assessor orally moved for an order compelling the inspection of the property, and Taxpayer opposed that motion (See id.) On or about June 15, 2019, Taxpayer filed a brief supporting his position; the assessor filed a brief on or about June 20, 2019; and Taxpayer filed a reply brief on or about July 6, 2019. (Def s Decl of Wallace, Exs A-C.) Taxpayer's briefs raised essentially the same points summarized above, adding concerns that assessor personnel had not telephoned before entering his property, in disregard of "NO TRESPASSING" signs, for some or all of the inspections. (Def s Decl of Wallace, Ex A at 2; Ex D at 5.)
The magistrate in TC-MD 1900 56G granted the assessor's motion in an Order Compelling Inspection of Subject Property. As the magistrate later recited:
"The court ordered Plaintiff to arrange an inspection of the subject property no later than September 12, 2019. In an email dated September 14, 2019, Plaintiff informed Defendant's counsel that he would not allow Defendant to inspect his property, commenting 'Obviously, this case will be dismissed by Magistrate Lundgren and we will file an appeal with the Regular Division.'"(Ftf's Compl, Ex 1 at 1 .) After receiving Taxpayer's September 14, 2019, email, the assessor moved to dismiss TC-MD 1900 56G. Taxpayer apparently did not respond to that motion. The magistrate granted the assessor's motion to dismiss, stating:
"It appears that Plaintiff has refused to comply with the court's Order Compelling Inspection of Subject Property, and Defendant's Motion to Dismiss is unopposed. Under such circumstances, dismissal is appropriate. See TCR-MD 21."(Id.) The citation in the dismissal order is to Tax Court Rule-Magistrate Division ("TCR-MD") 21 of the Magistrate Division's rules of procedure. As in effect at the time, Rule 21 provided
"The court may enforce any decision, order, judgment, or other statement directing a party to perform a specific act by imposing sanctions on the party refusing or neglecting to comply. Sanctions may include, but are not limited to, dismissal of the case, placing the noncompliant party in default, and sanctions for contempt as authorized by statute."TCR-MD 21 (2019).
Taxpayer's September 14, 2019, email stated in full:
Taxpayer timely appealed to this division from the magistrate's dismissal of TC-MD 190056G, seeking the opportunity to present his case on the merits, i.e., to prove a lower value or values for the property than the assessor determined. (See Ptf's Compl.) After a period of abeyance due to Taxpayer's work assignment involving efforts to combat the pandemic, the court received the Department's Motion for Summary Judgment. The Department asks the court to dismiss Taxpayer's appeal to this division by determining that the magistrate did not abuse his discretion when dismissing TC-MD 190056G based on the facts before the magistrate at the time of dismissal. In response to questions from the court, the Department briefed and orally argued its position that an abuse-of-discretion standard applies and that this division may consider only facts presented to the magistrate. Taxpayer resists the Department's motion and filed a written Response and participated in oral argument.
Alternatively, if the court does not grant dismissal, the Department asks the court to dismiss the appeal as to tax years 2014-15 and 2015-16because the court's jurisdiction to change residential assessment values is beyond the court's jurisdiction. (Defs Mot Summ Jat 1.) The court's conclusion below renders it unnecessary to address this argument.
Taxpayer, who was not represented by counsel, did not respond to the portion of the Department's argument addressing the standard of review and the scope of the evidence.
The Department's counsel, who had represented the Department before the magistrate, submitted a declaration attaching the following documents that had been filed with or generated by the court in TC-MD 1900 56G: the magistrate's Order Compelling Inspection of Subject Property and the parties' briefings on the assessor's motion leading to that order, including declarations of assessor personnel and an "Improvement Summary" that Taxpayer had provided for tax year 2017 (Defs Decl of Wallace, Exs A-D); and the assessor's Motion to Dismiss, accompanied by a copy of Taxpayer's September 14, 2019, email to the assessor's counsel referred to above. (Def s Decl of Wallace, Ex E.) Taxpayer submitted the magistrate's Order Dismissing Complaint in TC-MD 1900 56G as an attachment to his complaint in this division. (Ptf's Compl, Ex 1.) Taxpayer also submitted his own declaration containing a factual narrative and a declaration of his spouse. (Ptf 's Decl of Scott Salisbury; Ptf's Decl of Dena Salisbury.) Finally, the Department submitted the magistrate's Final Decision of Dismissal in TC-MD 180079R. (Defs Ded of Wallace, Ex F.)
B. Standard of Review on Summary Judgment
The court grants a motion for summary judgment if "the pleadings * * * declarations, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law." Tax Court Rule ("TCR") 47 C. See Chrislensen v. Dept. of Re v., 23 OTR155, 162(2018). "No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable [factfinder] could [find] for the adverse party on the matter that is the subject of the motion for summary judgment." TCR 47 C. "A material fact is 'one that, under applicable law, might affect the outcome of a case.'" Ghiglieri v. Tomalak, 304 Or.App. 717, 718, 469 P.3d262 (2020). The party seeking affirmative relief-in this case, Taxpayer in seeking to challenge the magistrate's dismissal and ultimately to challenge the value or values assigned to the property-bears Hie burden of proof at trial. ORS 305.427.
II. ISSUES
(1) In an appeal from a magistrate's decision of dismissal, does the Regular Division limit the facts considered to those before the magistrate, and does the Regular Division review the magistrate's decision to dismiss for abuse of the magistrate's discretion?
(2) Should the court dismiss Taxpayer's appeal?
III. ANALYSIS
A. Standard and Scope of Review of Magistrate's Dismissal
The Department asserts that the standard and scope of review that this division should apply to the magistrate's dismissal of TC-MD 190056 G are limited, urging (1) that the court limit its review of the facts underlying the magistrate's decision to the facts that were before the magistrate; and (2) that the court apply an abuse-of-discretion standard to the magistrate's action (Def's Mot Summ J at 5-8.) The court analyzes the Department's position in light of the relevant statutes and the decided cases.
1. Regular Division Initially Confines its Review to Magistrate 's Procedural Decision
The court considers it well settled that the Regular Division's initial task in reviewing a magistrate's decision of dismissal is to determine whether that dismissal was proper. The Department does not argue otherwise in this case. The court restates the reasons briefly. The Regular Division is required to conduct a de novo review of each case, including appeals from the Magistrate Division. See ORS 305.425(1) ("All proceedings before the judge of the tax court shall be original, independent proceedings and shall be tried without a jury and de novo.''); Village at Main Street Phase II, ILC v. Dept. of Rev., 356 Or. 164, 168, 339 P.3d 428 (2014) (Regular Division reviews magistrate decisions "de novo").
Unless otherwise noted, the court's references to the Oregon Revised Statutes ("ORS1') are to the 2019 edition.
De novo review in the Regular Division does not mean that a party can necessarily expect the Regular Division to hear the merits of an appeal if the magistrate has dismissed that party's appeal on procedural grounds. For example, if a party fails to appear at a hearing when directed to do so, fails to file motions or briefs at the time the magistrate prescribes, or refuses to provide information to another party in discovery despite a magistrate's order, the magistrate may dismiss the appeal as a way to enforce the magistrate's directives or orders. See TCR-MD 21 (quoted above). When the magistrate issues a decision of dismissal, the dismissed party may appeal to the Regular Division, but:
"the Regular Division must initially restrict its de novo review to the issue of dismissal in the Magistrate Division. * * * If the Regular Division failed to take a dismissal in the Magistrate Division into account, it 'would, in essence, render meaningless the requirement that* * * matters first be heard in the Magistrate Division.'"Bleoaja v. Depl. of Rev., 20 OTR 102, 106 (2010) (citing Spears v. Dept. of Rev., 20 OTR88, 89 (2010) ("Spears F) (quoting Freitag v. Dept. of Rev., 19 OTR 144, 148 (2006));see also Wynne v. Dept. of Rev., 342 0r515, 520, 156 P.3d 64 (2007) (a plaintiff may not "bypass" the Magistrate Division).
Prior decisions make it clear that the first step the Regular Division will take is to decide whether dismissal was proper. If so, this division will likewise dismiss the appeal and issue a judgment against the party dismissed. If this division decides that dismissal was not appropriate, then this division will proceed to hear any procedural issues and the merits of the case. See Spears I, 20 OTR at n 89 & Spears v. Dept. of Rev., 20 OTR 229, 235-36 (20\0) ("Spears II) (finding good cause for taxpayer's failure to timely file documents in Magistrate Division; setting case for hearing on the merits in Regular Division).
2. The Department's Positions
The court now considers the Department's two positions regarding the Regular Division's review of the magistrate's dismissal. First, the Department asserts that the Regular Division may consider only those facts that were presented to the magistrate. The court disagrees. The Magistrate Division is not a court of record. See Village at Main Street Phase II, FLC, 356 Or at 167 (citing ORS 305.430(1) (Magistrate Division proceedings "shall not be reported")). Therefore, in contrast to procedures before the Supreme Court or the Court of Appeals, there is no "Trial court record" that is required to be maintained at the Magistrate Division and transmitted to the Regular Division and that can be expected to encompass what was known to the magistrate at the time of dismissal. Cf. Oregon Rules of Appellate Procedure ("ORAP") 3.05. For this reason, the Regular Division will accept submissions from the parties as to facts that are both (1) relevant to dismissal; and (2) extant at the time the magistrate decided to dismiss the appeal. The court anticipates that the submissions often will simply consist of the magistrate's order or decision of dismissal, as well as any relevant briefs or other submissions that the parties provided to the magistrate. However, nothing prevents a party from supplementing that material with other evidence of facts relevant to dismissal that existed at the time of the magistrate's decision, regardless of whether those facts were known to the magistrate at the time.
The court emphasizes that facts presented to the Regular Division must have existed at the time the magistrate ordered the dismissal. The object of the first step of the Regular Division's review is to determine whether dismissal was proper in the Magistrate Division, not whether facts arising after that dismissal would justify allowing the case to proceed. For example, the party appealing a dismissal may present declarations or other testimony taken after the dismissal that describe facts that existed at the time of the dismissal. SeeSpearsIl2G OTR at 233 (affidavit of taxpayer's counsel made factual representations as to time of dismissal).
It follows that the court also must reject the Department's second assertion, that the Regular Division must dismiss the appeal unless the magistrate abused his or her discretion in dismissing it. An abuse-of-discretion standard would imply that the Regular Division would afford a level of deference to the magistrate as initial decision maker in taking a discretionary action. There is no doubt that magistrates have discretion, and are expected to use it, in many circumstances. ORS 305.501 (4)(a) authorizes them to conduct hearings "in any manner that will achieve substantial justice," provided that they act "[s]ubject to the rules of practice and procedure established by the tax court." However, because the Regular Division may have before it a set of facts that differ from the facts before the magistrate, the Regular Division must decide anew (de novo) whether dismissal was proper, without deferring to the magistrate's decision.
Of course, magistrates like all judicial officers' have' discretion' only' with in a permissible range of legally correct outcomes.'" See Fspinoza v. Evergreen Helicopters, Inc., 35 9 Or. 63, 116-1S, 376 P.3d960 (2016) (analyzing abuse-of-discretion standard)(citing State v. Harrell/Wilson, 353 Or. 247, 254, 297 P.3d 461(2013)).
The Department bases its argument in part on cases involving the standard of review that applies to the Department's own actions pursuant to its supervisory authority in ORS 306.115(3) and other statutory grants of discretionary authority to the Department. (Def's Mot Summ J at 6-7 (citing, among others, ADC Kentrox v. Dept. of Rev., 190TR91 (2006) and Resolution Trust Corp. v. Depl. of Rev., 13 OTR276 (1995).) The court distinguishes those cases as involving a legislative grant of discretion to an agency in the executive branch of government See ORS 306.115(3) (authorizing Department to change roll if it discovers reason for correction that, "in its discretion/'it "deems" necessary to conform roll to applicable law); see Martin Bros. Container v. Comm'n, 252 Or. 331, 338, 449 P.2d 430 (1969) ("Even though the proceeding before the tax court is de novo, where the legislature has given the tax commission discretion to decide whether something is reasonable, we believe the function of the court is to decide whether there has been any abuse of discretion and not to retry the original determination of the commission."). By contrast, the Oregon Tax Court is one court with two divisions. See Dept. of Rev. v. Ritchie Chevron, Inc., 14 OTR 406, 409 (1998) (so stating); Norpac Foods, Inc. v. Dept. of Rev., 15 OTR 331, 333 (2001) (citing ORS 305. 425(1) ("procedural issues presented to the judge in the Regular Division will be considered as 'original, independent' proceedings and tried de novo'). This order should not be read as disturbing any prior holding of this court involving review of an executive agency action
The Department also cites Freitag for its positions that the Regular Division should apply an abuse-of-discretion standard and limit its review of facts to those that were before the magistrate. (Def's Mot Summ Jat 5-7.) See also Newton v. Clackamas County Assessor, 17 OTR 348(2004) (applying abuse-of-discretion standard to magistrate's decision to dismiss complaint for lack of prosecution). However, in Spears I, decided four years after Freitag, the court in reviewing its earlier decisions, in eluding Freitag, acknowledged"some confusion in the decisions of the court," and proceeded, as the court does today, to review the magistrate's procedural decision de novo and to allow additional evidence existing at the time of the magistrate's decision. See SSOTR at 89-90. In Bleoaja, also decided in 2010, the court likewise declared that de novo standard applied to the magistrate's decision of dismissal. See 20 OTR at 106. ('”Regular Division must initially restrict its de novo review to the issue of dismissal in the Magistrate Division."). The court now adopts the standards applied in Spears I and Hand Bleoaja, and declines to follow Freitag or Newlon to the extent inconsistent with the reasoning of this order.
B. Should the court dismiss Taxpayer's appeal?
Applying the foregoing standard, the court turns to the magistrate's dismissal of TC-MD 190056G. The magistrate dismissed Taxpayer's appeal because Taxpayer refused to comply with the magistrate's order to allow the assessor's personnel to inspect the property. The magistrate issued that order in response to the assessor's assertion that an inspection was necessary to allow the assessor to prepare for trial and was reasonably calculated to lead to the discovery of evidence admissible at trial. (See Defs Decl of Wallace, Ex B at 2-3 (assessor's Reply in TC-MD 190056G).)
The court first considers the propriety of the magistrate's Order Compelling Inspection of Subject Property. Each assessor has a statutory duty to determine the real market value of each parcel of real property every year as of January 1 at 1:00 a.m. See ORS 308.210(1). The law thus assumes that property values may change from one year to the next even if no changes are made to the property itself. If physical aspects of the property change, various laws require the assessor to take specific actions related to value, including determining the real market value and maximum assessed value of "new improvements" (see ORS 308.153) and reducing values for destroyed or damaged property (see ORS 308.146(5)). The statutes give the assessor limited time, starting with the January 1 assessment date, to determine property values, apply the local rates, record all data on the public rolls, and generate bills by the deadline of October 25. See ORS 311.115.
Taxpayer feedback and taxpayer appeals serve as important checks on the assessor's work, but the legislature has tied the appeals process to the annual valuation and billing cycle, with an emphasis on determining an accurate value for the particular tax year. Each taxpayer has the opportunity to seek a reduction in the value the assessor determines for a tax year by filing a petition with the local BOPTA on or before the following December 31, which is approximately ten weeks after the assessor sends the annual tax bill and six weeks after the November 15 deadline to pay the tax. See ORS 309.100(2); ORS 311.250. If the BOPTA does not reduce the value, or if the taxpayer is dissatisfied with the amount of the reduction, the taxpayer may appeal to the Magistrate Division within 30 days. See ORS 305.280(4). In limited circumstances, a taxpayer may be entitled to claim relief for one or two prior tax years notwithstanding the annual deadline. See ORS 305.288 (Tax Court may change value of certain dwellings or for good and sufficient cause); see also ORS 306.115 (discretionary review by Department). In general, however, the statutes require the taxpayer to act quickly to exercise the taxpayer's appeal rights, and to challenge one year's value at a time.
As exceptions, appeals for industrial property and utility and other centrally assessed property follow different processes that do not involve a BOPTA. See ORS 305.403; ORS 308.584.
In the Tax Court, neither the assessor nor the court is bound by the value the assessor recorded on the roll. Rather, the assessor is free to assert that the value is higher (or lower) than initially recorded. See Mid Oil Co. v. Dept. of Rev., 297 Or583, 686 P.2d 1020 (1984). In its de ho vo review, the court has jurisdiction to determine the "correct" value of the property, based on the evidence, without regard to the values on the roll, the values found by the BOPTA, or even the values that the parties assert at trial. See ORS 305.412. Accordingly, when a valuation dispute goes to trial, the statutes give each party an incentive to gather a complete set of facts to present to the court, a process that may include a formal appraisal.
Because the statutes require and allow the court to determine the property's value anew, an assessor's request to inspect the property in order to gather data for trial is likely to be reasonable in many circumstances. Moreover, in this case the facts show that, as of the assessor's most recent inspection, in April 2017, construction of the single-family residence was at least not totally complete, and the permit to construct the riding arena was outstanding, with trusses and other materials being stored at the site and awaiting construction. These facts overwhelmingly support the assessor's request to re-inspect the property to determine the value as of January 1, 2018. Regardless of how thorough the inspections in 2015, 2016 and 2017 may or may not have been, those inspections simply could not have fully informed the assessor as to how construction of the arena and finishing of the residence proceeded in the months leading up to the January 1, 2018, assessment date. Nor would they suffice to allow the assessor to make the best presentation to this court as to the value of the property as of January 1, 2018.
The parties disagree about the extent to which construction of there sidence was complete in April 2017 (61 percent complete vs. entirely complete except for certain flooring and tile work). The court does not consider that factual difference mat trial because, under Oregon's constitutional limitations known as Measure 50, the determination of the real market value of any addition of "new improvements, 'is crucial to the property's maximum assessed value for future years. See ORS 30S. 153; ORS 308.146(1) (growth in maximum assessed value capped at three percent annually unless an exception applies).
Taxpayer's response in this appeal, submitted November 12, 2020, asserts that the magistrate erred by failing to "first consider[] allowing the case to proceed with limited scope." (Ptf's Resp at 1.) At oral argument, Taxpayer elaborated, asserting that the magistrate's decision to allow a full inspection, including all elements of the property and the ability to take photographs, was unreasonable given the number of prior inspections. (Statement of Scott Salisbury, Oral Argument, Jan 15, 2021, at 10:28.) Taxpayer acknowledged at oral argument that an assessor's request to inspect property is not necessarily always unreasonable, and indeed Taxpayer allowed inspections several times before filing any appeal. The court understands Taxpayer's concerns in this case seem to be (1) alack of confidence, based on his discovery of past discrepancies, in the assessor's motivation or ability to inspect the property for purposes of valuing it accurately; and (2) concern about safety and privacy rights, particularly that any photographs would be made public or become public inadvertently, putting Taxpayer's family at risk.
The court concludes that denying the assessor the ability to inspect the property would not address Taxpayer's concerns about the assessor's intent or competence. The court relies on an adversarial process, in which each party gathers its facts about the value of the property and presents them to the court in the manner the party considers most persuasive. Preemptively excluding potential evidence by denying an assessor the ability to inspect the property would deprive the court of that evidence as well, impeding the court's ability to determine the "correct" value pursuant to statute. The court's task includes weighing the evidence and deciding questions of credibility. Taxpayer's remedy is not to prevent the assessor from gathering the evidence and making the assessor's best case, but rather to point out any flaws, attempted overreach, or overlooked facts in the assessor's appraisal, and to present and substantiate his own set of facts and conclusions.
Regarding Taxpayer's concerns about safety, the court first acknowledges and respects that these concerns can be very real. However, the court must balance Taxpayer's concerns against the probative value that a photograph may have in a dispute about the value of property. Courts have broad authority to seek to reconcile the needs of both parties through a protective order. The Magistrate Division can, for example, apply the discovery rules of the Regular Division in order to accept documents under seal and impose conditions on the taking of photographs and the use and storage of photographic data. See TCR 36 C (allowing court, upon showing of "good cause," to "make any order which justice requires," including specifying terms and conditions); TCR-MD (preface; authorizing magistrates to use Regular Division rules as a guide to extent relevant). Taxpayer was aware that a protective order was a possibility, but he did not seek any such protection in TC-MD 1900 56 G. At oral argument in this appeal, Taxpayer explained that he lacks faith in the process of a protective order. (Statement of Scott Salisbury, Oral Argument, Jan 15, 2021, at 10:29.) By drawing that line, Taxpayer left the court little to work with.
In the assessor's Motion to Compel Inspection in TC-MD 190056G, the assessor attached the Final Decision of Dismissal in TC-MD 180079Rdiscussingthepossibn1ty of a protective order. (See Def's Decl of Wallace, Ex B.)
Regarding Taxpayer's non-security related privacy concerns, case law now establishes clearly that an order allowing an assessor to fully inspect taxpayer residential property as part of discovery in a valuation case generally does not violate either state or federal constitutional bars against unreasonable searches or otherwise impair protected privacy rights. Poddar v. Dept. of Rev., 328 Or. 552, 562-63, 983 P.2d 527 (1999) (analyzing taxpayer claim under Or Const, Art I, § 9 and U.S. Const, Amend IV); Bleoaja, 20 OTR at 109-10 (analyzing under U.S. Const, Amend IV). Taxpayer points to no facts that distinguish these cases as a matter of law.
Taxpayer made clear at many points in this appeal that he feels aggrieved by acts of the assessor that indicate a lack of diligence or a desire to skew recorded values in favor of the assessor. Some of these alleged acts took place in prior tax years, others in the tax years under appeal in TC-MD 180079R or TC-MD 190056G. The court notes that, if this appeal or any future case were to proceed, the court's task would be to determine which acts, if any, made a difference in the assessed value of the property. The Tax Court has jurisdiction to address property tax disputes. Tort claims against assessors, however, generally are outside the Tax Court's jurisdiction. See Sanok v. Grimes, 29 A Or 684, 698, 662 P.2d 693 (1983).
The court must conclude that Taxpayer's refusal to work with the assessor and the magistrate to seek a resolution to his concerns about security;, and to comply with the magistrate's Order Compelling Inspection of Property, justified the magistrate's dismissal of Taxpayer's appeal in TC-MD 190056G. Now, therefore, IT IS ORDERED that Defendant's Motion for Summary Judgment is granted.
At oral argument, Taxpayer appeared to ask this division to specially designate his appeal in TC-MD 190056Gfor hearing in this division, pursuant to ORS 305.501 (1). Aside from numerous procedural issues under TCR1 C, the court denies Taxpayer's request as too late because the case was no longer pending in the Magistrate Division.
"Mr. Doyle,
"Our position regarding th is matter h as not changed. Du e to th e previous actions of 3'our clients, we will not a How th em come onto our property. We feel th at your clients should b e able to defend and explain a tax value/bill they have created, and we have been paying, on the information they have. If a tax bill can be generated and we are expected to pay it, it should be able to be defended without further action.
"Obviously, the case will be dismissed by' Magistrate Lundgren and we will file an appeal with the Regular Division.
"Respectfully,
(Dcf s Decl of Wallace, Ex E at 11.)"Scott Salisbury"