The opinion
IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
DEBBIE ANN GRIFFITH (McCOY), )
)
Plaintiff, ) TC-MD 170083G
)
v. )
)
DOUGLAS COUNTY ASSESSOR, )
)
Defendant. ) FINAL DECISION1
Plaintiff appealed Defendant’s assessment of tax on property identified as
Account P137944 (the subject property) for tax years 2012–13 and 2013–14. Defendant failed to
answer Plaintiff’s Complaint, and an Order of Default was entered against it. Plaintiff appeared
and gave testimony at a telephone proceeding on June 1, 2017.
I. STATEMENT OF FACTS
In August 2010, Plaintiff registered Douglas County Diesel Fleet Service (the business)
as her assumed business name, with her home as the business address. Her husband, a certified
diesel mechanic, performed all duties of the business using equipment that included a truck with
a box, an air compressor, and other tools. Plaintiff did not use the equipment and considered it to
belong to her husband. She registered the business in her name at the request of her husband,
who was then receiving financial aid contingent on his not working. Plaintiff’s husband left her
home in August 2011 and removed all the equipment. The business ended at that time and its
business license was not renewed.
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1
This Final Decision incorporates without change the court’s Decision, entered July 13, 2017. The court
did not receive a statement of costs and disbursements within 14 days after its Decision was entered. See Tax Court
Rule–Magistrate Division (TCR–MD) 16 C(1).
FINAL DECISION TC-MD 170083G 1
Plaintiff attached a printout associated with the subject property to her Complaint that
stated taxes and interest due for 2012 and 2013. The printout stated that the certified 2015 real
market value of the subject property was $-0-. The printout listed the business name. Plaintiff
also reported receiving collection letters from Defendant, addressed to the business and
identifying the subject property as a personal property account.
At the time Plaintiff filed her Complaint, she believed the tax assessment she was
contesting was on her home, and the Complaint identifies the subject property as residential.
Plaintiff’s home is not in her name or in the business’s name, but in a relative’s name. Plaintiff
makes mortgage payments on the home that include property tax payments reserved in escrow.
Plaintiff alleged that the tax assessments for 2012 and 2013 were in error and requested
relief from the court.
II. ANALYSIS
The issues for determination are whether Defendant’s assessment of the subject property
to Plaintiff is in error and whether the court has jurisdiction to order a correction of the tax roll.
As a preliminary matter, although Plaintiff initially believed the subject property was her
home, it appears more likely that it was personal property used by her husband in the business.
Although title to Plaintiff’s home was not in the business name—nor even in Plaintiff’s name—
the tax account printout attached to her Complaint was addressed to the business. And although
Plaintiff pays property taxes on her home with her mortgage, the printout indicated a 2015 real
market value of $-0-. If the house’s tax roll value were $-0-, no ad valorem taxes would be
assessed on it. Additionally, Plaintiff reported that she had in her possession letters from
Defendant identifying the subject property as a personal property account. The court is satisfied
by a preponderance of the evidence that the subject property was personal property.
FINAL DECISION TC-MD 170083G 2
On the evidence before the court, it is probable that Defendant’s assessment of the
subject property to Plaintiff was in error. Defendant had a duty to assess personal property to
those persons “owning or having possession or control of taxable personal property on January 1,
at 1:00 a.m. of the assessment year.” ORS 308.215(2)(a) (2011). Plaintiff’s testimony showed
that her husband, not she, owned the subject property. Plaintiff’s testimony also showed that she
did not have possession or control of it by January 1, 2012—it was gone from her home.
Before granting Plaintiff the relief she requested, however, the court must be satisfied
that it has jurisdiction to do so. The first step is to identify the statute giving Plaintiff the right to
appeal.
The right of appeal from an act of Defendant is found under ORS 305.275.2 Taxpayers
may appeal under ORS 305.275(1) if they are (a) aggrieved by the act of a taxing authority,
provided that (b) the taxing authority’s act “must affect the property of the person making the
appeal” or property in which the person appealing holds an interest. However, if Plaintiff could
have appealed to the board of property tax appeals (BOPTA) in the years that the tax was
assessed, then her statutory right of appeal under ORS 305.275 was only from the BOPTA order.
ORS 305.275(3).
Here, Plaintiff could not have appealed to BOPTA because she did not own the subject
property. The statute that authorized appeals to BOPTA, ORS 309.100(1) (2011), allowed such
appeals only to “the owner or an owner of any taxable property or any person who holds an
interest in the property that obligates the person to pay taxes imposed on the property.” Because
Plaintiff’s husband was the owner of the subject property, Plaintiff had no appeal right to
BOPTA and may have a right to appeal directly to the Magistrate Division under ORS 305.275.
2
Unless otherwise noted, the court’s references to the Oregon Revised Statutes (ORS) are to 2015.
FINAL DECISION TC-MD 170083G 3
Plaintiff is both aggrieved and affected by Defendant’s act. See ORS 305.275(1). Taxes
on personal property—unlike taxes on real property—are “a debt due and owing from the owner
of the personal property.” ORS 311.455 (2011). Thus, even though the property Defendant
assessed did not belong to Plaintiff, she incurred a personal liability from the assessment. That
personal liability cost her money. That money is the property affected by Defendant’s act and
the reason Plaintiff is aggrieved. Plaintiff meets the conditions to appeal under ORS 305.275(1).
Although Plaintiff’s appeal was untimely, Defendant did not assert a timeliness defense.
Appeals under ORS 305.275(1) “shall be filed within 90 days after the act, omission order or
determination becomes actually known to the person, but in no event later than one year after the
act or omission has occurred, or the order or determination has been made.” ORS 305.280(1).
But this court is not deprived of jurisdiction by the untimeliness of an appeal: “The time within
which the statute provides that the proceeding shall be brought is a period of limitations and is
not jurisdictional.” ORS 305.425(2). Failure to commence an action within the time limited by
statute is a defense to be raised by a defendant, and that defense is waived if a defendant does not
raise it. See TCR 21 G(2).3 By failing to answer Plaintiff’s Complaint, Defendant waived its
defense of untimeliness.
The court therefore concludes that it has jurisdiction to award Plaintiff relief for the tax
years in question, and the uncontested facts show that Plaintiff is entitled to relief. She did not
own, possess, or control the subject property on the assessment dates for either 2012 or 2013.
Defendant’s assessment of the property to her was in error.
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3
Tax Court Rules (TCR)
FINAL DECISION TC-MD 170083G 4
III. CONCLUSION
Considering the pleadings and testimony, the court concludes that the subject property
was personal property erroneously assessed to Plaintiff. The court has jurisdiction to order relief
and Defendant did not assert untimeliness as a defense. Now, therefore,
IT IS THE DECISION OF THIS COURT that Plaintiff’s appeal is granted. Defendant
shall eliminate its assessment to Plaintiff of personal property identified as Account P137944
from the 2012–13 and 2013–14 tax rolls.
POUL F. LUNDGREN
MAGISTRATE
If you want to appeal this Final Decision, file a complaint in the Regular
Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR
97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your complaint must be submitted within 60 days after the date of the Final
Decision or this Final Decision cannot be changed. TCR-MD 19 B.
This document was filed and entered on July 31, 2017.
FINAL DECISION TC-MD 170083G 5