Dabreo v. Deschutes County Assessor

IN THE OREGON TAX COURT

MAGISTRATE DIVISION

Property Tax

MARCIA DABREO )

and ERNEST DABREO, )

)

Plaintiffs, ) TC-MD 190386N

)

v. )

)

DESCHUTES COUNTY ASSESSOR, )

) ORDER GRANTING

Defendant. ) DEFENDANT’S MOTION TO DISMISS

This matter came before the court on Defendant’s answer and motion to dismiss (motion)

filed January 27, 2020, requesting that Plaintiffs’ Complaint be dismissed because Plaintiffs

failed to appeal to the board of property tax appeals (BOPTA) before appealing to this court. A

case management conference was held on March 18, 2020, during which the parties agreed to a

schedule to file additional briefings on Defendant’s motion. Plaintiffs filed a written response to

Defendant’s motion on April 22, 2020. Defendant filed a written reply to Plaintiffs’ response on

April 23, 2020. This matter is now ready for the court’s determination.

I. STATEMENT OF FACTS AND PARTIES’ POSITIONS

Plaintiffs filed their Complaint on December 28, 2019,1 challenging the real market value

of property identified as Account 247973 (subject property) for the 2019-20 tax year. (Compl at

1.) Plaintiffs’ property tax statement for 2019-20 lists the real market value as $273,000. (Id. at

3.) They wrote that the real market value was in error because “the average list value in [their]

area [was] $250,000” and the “most recent sales average [was] $260,000.” (Id. at 1.) On that

1

Plaintiffs allege they filed on November 23, 2019, the date they signed the complaint. However, a

complaint is deemed filed on the date that it was deposited in the mail as shown by a post-office cancellation mark,

not the day it was signed. See ORS 305.418.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS TC-MD 190386N 1

basis, along with the assertion that they “[had] no offers at $250,000,” Plaintiffs requested a real

market value of $240,000. (Id.)

Defendant disagreed with “the relevance of recent sales data” offered by Plaintiffs and

disagreed that “the RMV of the subject property [was] $240,000” as Plaintiffs suggested. (Ans

at 1.) Defendant moved to dismiss because “Plaintiffs [had] not timely appealed to the Board of

Property Tax Appeals for the year being appealed in this [c]ourt.” (Id.)

Plaintiffs received at least two documents explaining the appeals process: an

informational flyer mailed with the tax statement and the tax statement itself. (Def’s Ltr at 1, 3,

7, Mar 23, 2020.) Plaintiffs’ tax statement from 2019-20 reads in pertinent part:

“If you think the value of your property as shown on this statement is too high, you

can appeal. Your appeal is to the county board of property tax appeals (BOPTA),

except for state appraised industrial property. To appeal industrial property

appraised by the Department of Revenue, you must file a complaint in the

Magistrate Division of the Oregon Tax Court.”

(Id. at 3 (emphasis omitted).) Plaintiffs also received a flyer that Defendant claims was included

with every tax statement it mailed in the 2019-20 tax year. (Id. at 7.) The flyer explains that

Plaintiffs “may appeal [their] property’s value for the 2019-20 tax year with the Board of

Property Tax Appeals.” (Id.) It also states that “[a]ppeals must be filed no later than December

31, 2019,” and instructs Plaintiffs to “[p]lease refer to the back of [their] tax statement for more

information or call the County Clerk’s Office.” (Id.)

Plaintiffs admit they “misread the paragraph [on their tax statement] on how to file an

appeal.” (Ptfs’ Resp at 1.) Instead of following the general instructions for appealing to

BOPTA, Plaintiffs admit that they followed the instructions “that [were] intended for industrial

[property appeals] purposes.” (Id.) Plaintiffs claim it was “an honest error on [their] part” and

urge the court to nevertheless consider the case. (Id.) Defendant maintains the error was entirely

that of Plaintiffs and asks the court to dismiss the case. (Def’s Resp at 1).

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS TC-MD 190386N 2

II. ANALYSIS

The issue is whether Defendant’s motion to dismiss should be granted because Plaintiffs

failed to follow the requirements for appealing to BOPTA set forth in ORS 305.275(3).2

A. Statutory Framework

A taxpayer who is dissatisfied with the county assessor’s valuation of their property may

appeal. Village at Main Street Phase II, LLC v. Dept. of Rev., 356 Or 164, 167, 339 P3d 428

(2014) (outlining processes for taxpayer appealing county assessor’s valuation). In most cases,

the taxpayer’s first step is to file a petition with BOPTA. Id.; see also ORS 309.100 (authorizing

taxpayers to appeal to BOPTA). A taxpayer dissatisfied with BOPTA’s decision may then seek

review by this court. Village at Main Street, 356 Or at 167; see also ORS 305.275(3)

(authorizing an appeal from a BOPTA order). Under ORS 305.275(3), a direct appeal to the

Magistrate Division is not allowed “[i]f a taxpayer may appeal to [BOPTA].”3

Plaintiffs’ challenge to the 2019-20 real market value of the subject property was

appealable to BOPTA under ORS 309.100, yet Plaintiffs appealed directly to the Magistrate

Division. See ORS 309.026(2)(b) (authorizing BOPTA to hear petitions for reducing real market

value.) Consequently, ORS 305.275(3) precludes the court from considering Plaintiffs’ appeal.

Even when the taxpayer fails to appeal to BOPTA and appeals directly to the court, as Plaintiffs

did here, the court may consider the case under ORS 305.288. See, e.g., Cogan v. Multnomah

County Assessor, TC-MD 130360C, 2013 WL 3948023 at *1 (Or Tax M Div Jul 29, 2013).

ORS 305.288 provides two avenues of relief. Under ORS 305.288(1), a valuation appeal

2

The court’s references to the Oregon Revised Statutes (ORS) are to 2017.

3

ORS 305.275(3) states: “If a taxpayer may appeal to the board of property tax appeals under ORS

309.100, then no appeal may be allowed under this section. The appeal under this section is from an order of the

board as a result of the appeal filed under ORS 309.100 or from an order of the board that certain corrections,

additions to or changes in the roll be made.”

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS TC-MD 190386N 3

may proceed if the property is a “dwelling” and the taxpayer’s requested change in value is equal

or greater than 20 percent of the property’s real market value as shown on the assessment and tax

roll. That avenue of relief does not apply here because those conditions are not met: the subject

property is land only and, therefore, not considered a dwelling and Plaintiffs did not allege a 20

percent error in its real market value. As a result, the court will address the second avenue of

relief provided under ORS 305.288(3).

B. Whether Plaintiffs Established Good and Sufficient Cause

ORS 305.288(3) grants the court authority to review appeals when the taxpayer has no

statutory right of appeal remaining and establishes good and sufficient cause for not timely

pursuing an appeal with BOPTA.4 See, e.g., Wiley v. Multnomah County Assessor, TC-MD

060620D, 2006 WL 2794956 at *1 (Or Tax M Div Sept 27, 2006). Good and sufficient cause is

defined as “an extraordinary circumstance that is beyond the control of the taxpayer * * * and

that causes the taxpayer, agent or representative to fail to pursue the statutory right of appeal.”

ORS 305.288(5)(b)(A). ORS 305.288(5)(b)(B) explicitly cautions that good and sufficient cause

“[d]oes not include inadvertence, oversight, lack of knowledge, hardship or reliance on

misleading information provided by any person except an authorized tax official * * *.”

Plaintiffs’ tax statement explains that an appeal, except for an appeal of state-appraised

industrial property, must be filed with BOPTA. Plaintiffs misread the appeal instructions, following

the process for industrial property rather than residential property. The court accepts that Plaintiffs

made “an honest error” when they misread the appeal instructions. Unfortunately, a misreading of

the instructions—even if it was an honest error—is not “an extraordinary circumstance that is beyond

4

Plaintiffs’ deadline to petition BOPTA was December 31, 2019. See ORS 309.100(2). There is no

dispute that Plaintiffs missed that deadline to petition BOPTA, instead filing an appeal with this court.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS TC-MD 190386N 4

the control of [Plaintiffs].” ORS 305.288(3)(5)(b)(A). Plaintiffs have neither alleged nor provided

any other evidence of good and sufficient cause for failure to pursue their statutory right of appeal

and, therefore, have not satisfied the requirements of ORS 305.288(3).

III. CONCLUSION

Upon careful consideration, the court concludes that Plaintiffs failed to establish good

and sufficient cause under ORS 305.288(3) for their failure to timely appeal to BOPTA for the

2019-20 tax year. As a result, the court concludes that Defendant’s motion to dismiss must be

granted. Now, therefore,

IT IS ORDERED that Defendant’s motion to dismiss is granted. Plaintiffs’ Complaint is

dismissed.

Dated this ___day July 2020.

ALLISON R. BOOMER

PRESIDING MAGISTRATE

This is a dispositive order pursuant to Tax Court Rule – Magistrate Division 16

C(1). The court will issue a decision after waiting 14 days to determine whether

there is a dispute about costs and disbursements. Any claim of error in regard to

this order should be raised in an appeal of the Magistrate’s decision when all

issues have been resolved. See TCR-MD 19.

This document was signed by Presiding Magistrate Allison R. Boomer and

entered on July 27, 2020.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS TC-MD 190386N 5