Salisbury v. Dept. of Rev.

No. 22 April 8, 2021 497

IN THE OREGON TAX COURT

REGULAR DIVISION

Scott SALISBURY,

Trustee,

Plaintiff,

v.

DEPARTMENT OF REVENUE,

Defendant.

(TC 5400)

Following the dismissal of this case in the Magistrate Division due to Plaintiff’s

refusal to allow the county assessor to inspect the property at issue, Defendant

Department of Revenue (the department) sought to limit the Regular Division’s

consideration of the facts to those before the magistrate and to limit the Regular

Division’s review of the dismissal to an abuse of discretion standard. The court con-

cluded that, because the Magistrate Division is not a court of record, the Regular

Division may review newly submitted facts that are both relevant to dismissal

and extant at the time the magistrate decided to dismiss the appeal. Further, the

Regular Division is not required to apply an abuse of discretion standard to a

magistrate’s decision. Upon review of the facts, the court concluded that the magis-

trate’s dismissal of Plaintiff’s appeal was reasonable because of Plaintiff’s refusal

to comply with the magistrate’s order compelling inspection of the property.

Oral argument on Defendant’s Motion for Summary

Judgment was held remotely on January 15, 2021.

James C. Wallace, Senior Assistant Attorney General,

Department of Justice, Salem, filed the motion and argued

the cause for Defendant.

Scott Salisbury, Plaintiff, filed a response and argued

the cause pro se.

Decision for Defendant rendered April 8, 2021.

ROBERT T. MANICKE, Judge.

I. INTRODUCTION

Plaintiff (taxpayer) appeals from a Magistrate

Division decision in TC-MD 190056G dismissing the com-

plaint in his appeal of property tax assessments for tax years

2014-15 through 2018-19. The magistrate dismissed taxpay-

er’s complaint because taxpayer refused to comply with the

court’s order compelling taxpayer to allow representatives

498 Salisbury v. Dept. of Rev.

of the Deschutes County Assessor to inspect the property.

Defendant Department of Revenue (the department) seeks

summary judgment that the appeal to this division be dis-

missed on the ground that the magistrate acted within his

discretion based on the facts before the magistrate.

A. Facts

The following facts specifically relevant to the mag-

istrate’s dismissal order are, unless otherwise noted, undis-

puted. The property at issue is land and improvements in

Deschutes County. When taxpayer bought the property in

2013,1 it included one building and three sheds, along with

certain site preparation improvements. As of May 2015, per-

mits had been pulled to construct structures referred to as

a “horse barn” and a “riding arena.” As of May 2016, a per-

mit had been pulled to construct a single-family dwelling.

Representatives of the assessor’s office inspected the prop-

erty in March 2015, May 2016, and April 2017.2 During the

April 2017 inspection, the assessor’s representative deter-

mined that the barn was 100 percent complete. During the

same April 2017 inspection, the assessor’s representative

initially determined that the riding arena was 50 percent

complete; however, in late 2017 taxpayer informed the asses-

sor’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. During the April 2017 inspection, the assessor also

determined that construction of the single-family residence

was 61 percent complete. Taxpayer disagrees as to the res-

idence, stating that it was “complete besides flooring in the

living room/master bedroom * * * and some finish tile work

in the master bath.”

At each inspection, taxpayer or his spouse met with

the assessor’s representative. During the 2016 inspection,

the representative met only with taxpayer’s spouse, and

1

Taxpayer stated that he and his spouse own the property through a revoca-

ble trust.

2

At oral argument taxpayer also mentioned an inspection in 2014. Neither

party submitted evidence of an inspection in 2014. In light of the other evidence,

the court does not consider a possible 2014 inspection material to this order.

Cite as 24 OTR 497 (2021) 499

the representative took photographs of improvements. 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. Taxpayer’s spouse denies that the representa-

tive 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 expe-

rience, the family does everything to avoid advertising their

place of residence. 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.3

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. While there, he noticed that the assessor’s

records included “a building that never existed.” Taxpayer

called the assessor’s office, took some photographs of the

portion of the property in question, and sent the photo-

graphs to the assessor to support his point. Within a few

days, an assessor representative called taxpayer and agreed

to correct the issue. In the meantime, taxpayer concluded

that the assessor had applied an erroneously high square

footage for the building that existed when taxpayer 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. A representative of the asses-

sor informed taxpayer that it was too late to correct the lat-

ter two issues and that taxpayer would have to appeal to the

board of property tax appeals (BOPTA).

Taxpayer filed an appeal with the BOPTA for tax year

2017-18, which culminated in a hearing held February 23,

2018. Before the hearing, taxpayer conducted his own

research and had several conversations with assessor per-

sonnel to obtain information about how the assessor had

3

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.

500 Salisbury v. Dept. of Rev.

valued the property and to discuss points of disagreement.

At the BOPTA hearing, taxpayer asserts that he had less

than 10 minutes to present his case. The assessor’s repre-

sentative then distributed a packet of materials, including

photographs from the 2016 inspection that included taxpay-

er’s “personal equipment and vehicles.” Taxpayer learned at

that moment that the photographs had been taken and was

shocked. Taxpayer asserts that, at that point his “faith and

confidence in the honesty and transparency” of the asses-

sor’s office diminished because he perceived a “pattern of

dishonesty” and “disregard for personal private property.”

Taxpayer felt “there was no value in allowing the Deschutes

County Assessor’s Office on our property.”

1. Case TC-MD 180079R (not appealed)

On March 12, 2018, taxpayer appealed the result-

ing BOPTA order to the Magistrate Division in what became

TC-MD 180079R,4 involving tax years 2014-15, 2015-16,

and 2017-18.5 At the initial case management conference

on April 25, 2018, taxpayer refused to allow a site inspec-

tion. The magistrate advised the parties to try to resolve

inspection disputes without court intervention. On May 7,

2018, the assessor moved to dismiss the case based on tax-

payer’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.’ ” The magistrate denied the asses-

sor’s motion as premature because the court had not at that

point issued an order requiring taxpayer to submit to an

inspection. 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

4

The appeal in TC-MD 180079R apparently was filed in the name of tax-

payer and his spouse. For simplicity, when discussing TC-MD 180079R, the court

hereafter refers to both spouses collectively as “taxpayer.”

5

The cited portion of the exhibit is a copy of the magistrate’s Final Decision

of Dismissal in TC-MD 180079R. That decision recites that taxpayer and his

spouse filed their complaint in the case on March 12, 2017. The court has deter-

mined that this is a typographical error and that the complaint in TC-MD

180079R was filed on March 12, 2018.

Cite as 24 OTR 497 (2021) 501

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 pro-

tect his family. 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. 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.’ ”6

The magistrate in TC-MD 180079R concluded that

the assessor’s request for a site inspection appeared reason-

ably 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 col-

lected from inspections in prior years would not suffice to

allow the court to perform its function of determining the

real market value. On July 31, 2018, the court dismissed

taxpayer’s complaint in TC-MD 180079R, and taxpayer did

not appeal that decision.

2. Case TC-MD 190056G

Some months after the dismissal of TC-MD

180079R, 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

6

Taxpayer’s response also asserted that the assessor had chosen not to fol-

low 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 no need to reassess to defend their actions.’ ”

In addition, taxpayer characterized the inspection as an unreasonable search

that would violate his right to privacy and the Fourth Amendment.

502 Salisbury v. Dept. of Rev.

TC-MD 190056G, where he included claims for relief for

tax years 2014-15 through 2017-18. During the initial case

management conference in TC-MD 190056G, the assessor

orally moved for an order compelling the inspection of the

property, and taxpayer opposed that motion. On or about

June 15, 2019, taxpayer filed a brief supporting his posi-

tion; the assessor filed a brief on or about June 20, 2019;

and taxpayer filed a reply brief on or about July 6, 2019.

Taxpayer’s briefs raised essentially the same points sum-

marized above, adding concerns that assessor personnel

had not telephoned before entering his property, in disre-

gard of “NO TRESPASSING” signs, for some or all of the

inspections.

The magistrate in TC-MD 190056G 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.’ ” 7

After receiving taxpayer’s September 14, 2019, email, the

assessor moved to dismiss TC-MD 190056G. 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,

7

Taxpayer’s September 14, 2019, email stated in full:

“Mr. Doyle,

“Our position regarding this matter has not changed. Due to the previous

actions of your clients, we will not allow them [to] come onto our property. We

feel that your clients should be 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,

“Scott Salisbury”

Cite as 24 OTR 497 (2021) 503

and Defendant’s Motion to Dismiss is unopposed. Under

such circumstances, dismissal is appropriate. See TCR-MD

21.”

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 neglect-

ing 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 timely appealed to this division from

the magistrate’s dismissal of TC-MD 190056G, seek-

ing 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. 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 determin-

ing 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.8 In response to ques-

tions 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 pre-

sented to the magistrate. Taxpayer resists the department’s

motion and filed a written Response and participated in oral

argument.9

8

Alternatively, if the court does not grant dismissal, the department asks

the court to dismiss the appeal as to tax years 2014-15 and 2015-16 because

the court’s jurisdiction to change residential assessment values is beyond the

court’s reach. The court’s conclusion below renders it unnecessary to address this

argument.

9

Taxpayer, who was not represented by counsel, did not respond to the por-

tion of the department’s argument addressing the standard of review and the

scope of the evidence.

504 Salisbury v. Dept. of Rev.

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 190056G: the magis-

trate’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; and the assessor’s Motion to Dismiss, accom-

panied by a copy of taxpayer’s September 14, 2019, email to

the assessor’s counsel referred to above. Taxpayer submit-

ted the magistrate’s Order Dismissing Complaint in TC-MD

190056G as an attachment to his complaint in this division.

Taxpayer also submitted his own declaration containing a

factual narrative and a declaration of his spouse. Finally,

the department submitted the magistrate’s Final Decision

of Dismissal in TC-MD 180079R.

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 mat-

ter of law.” Tax Court Rule (TCR) 47 C. See Christensen v.

Dept. of Rev., 23 OTR 155, 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

P3d 262 (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 the 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

Cite as 24 OTR 497 (2021) 505

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 mag-

istrate’s dismissal of TC-MD 190056G 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 mag-

istrate; and (2) that the court apply an abuse-of-discretion

standard to the magistrate’s action. 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 mag-

istrate’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 with-

out a jury and de novo.”);10 Village at Main Street Phase II,

LLC v. Dept. of Rev., 356 Or 164, 168, 339 P3d 428 (2014)

(Regular Division reviews magistrate decisions “de novo”).

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

10

Unless otherwise noted, the court’s references to the Oregon Revised

Statutes (ORS) are to the 2019 edition.

506 Salisbury v. Dept. of Rev.

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. Dept. of Rev., 20 OTR 102, 106 (2010) (citing Spears

v. Dept. of Rev., 20 OTR 88, 89 (2010) (Spears I) (quoting

Freitag v. Dept. of Rev., 19 OTR 144, 148 (2006)); see also

Wynne v. Dept. of Rev., 342 Or 515, 520, 156 P3d 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 89 & n 1;

Spears v. Dept. of Rev., 20 OTR 229, 235-36 (2010) (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 posi-

tions regarding the Regular Division’s review of the mag-

istrate’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, LLC, 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

Cite as 24 OTR 497 (2021) 507

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 par-

ties 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 dis-

missal, as well as any relevant briefs or other submissions

that the parties provided to the magistrate. However, noth-

ing 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.11

It follows that the court also must reject the depart-

ment’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 magis-

trates have discretion, and are expected to use it, in many

circumstances. ORS 305.501(4)(a) authorizes them to con-

duct hearings “in any manner that will achieve substan-

tial justice,” provided that they act “[s]ubject to the rules

of practice and procedure established by the tax court.”12

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

11

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. See Spears II, 20 OTR

at 233 (affidavit of taxpayer’s counsel made factual representations as to time of

dismissal).

12

Of course, magistrates, like all judicial officers, have “discretion” only

“ ‘within a permissible range of legally correct outcomes.’ ” See Espinoza v.

Evergreen Helicopters, Inc., 359 Or 63, 116-18, 376 P3d 960 (2016) (analyzing

abuse-of-discretion standard) (citing State v. Harrell/Wilson, 353 Or 247, 254,

297 P3d 461 (2013)).

508 Salisbury v. Dept. of Rev.

dismissal was proper, without deferring to the magistrate’s

decision.

The department, citing, among others, ADC Kentrox

v. Dept. of Rev., 19 OTR 91 (2006), and Resolution Trust Corp.

v. Dept. of Rev., 13 OTR 276 (1995), 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.13 The court distin-

guishes those cases as involving a legislative grant of dis-

cretion 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

P2d 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 divi-

sions. 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

13

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. 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 deci-

sions, including Freitag, acknowledged “some confusion in the decisions of the

court,” and proceeded, as the court does today, to review the magistrate’s proce-

dural decision de novo and to allow additional evidence existing at the time of the

magistrate’s decision. See 88 OTR at 89-90. In Bleoaja, also decided in 2010, the

court likewise declared that a de novo standard applied to the magistrate’s deci-

sion 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 II and Bleoaja, and declines

to follow Freitag or Newton to the extent inconsistent with the reasoning of this

order.

Cite as 24 OTR 497 (2021) 509

prior holding of this court involving review of an executive

agency action.

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 magis-

trate 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 discov-

ery of evidence admissible at trial.

The court first considers the propriety of the mag-

istrate’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 legisla-

ture 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 10 weeks after the assessor sends

the annual tax bill and six weeks after the November 15

510 Salisbury v. Dept. of Rev.

deadline to pay the tax.14 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 not-

withstanding 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.

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 Or 583, 686 P2d 1020 (1984). In its de novo 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 stat-

utes 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,15 and the

permit to construct the riding arena was outstanding, with

14

As exceptions, appeals for industrial property and utility and other cen-

trally assessed property follow different processes that do not involve a BOPTA.

See ORS 305.403; ORS 308.584.

15

The parties disagree about the extent to which construction of the res-

idence 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 material 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

Cite as 24 OTR 497 (2021) 511

trusses and other materials being stored at the site and

awaiting construction. These facts overwhelmingly support

the assessor’s request to reinspect 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 fin-

ishing 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.

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.” 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. 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) a lack 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 pub-

lic inadvertently, putting taxpayer’s family at risk.

The court concludes that denying the assessor the

ability to inspect the property would not address taxpay-

er’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 pres-

ents 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

years. See ORS 308.153; ORS 308.146(1) (growth in maximum assessed value

capped at three percent annually unless an exception applies).

512 Salisbury v. Dept. of Rev.

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 asses-

sor’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 taxpay-

er’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 jus-

tice 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,16 but he did

not seek any such protection in TC-MD 190056G. At oral

argument in this appeal, taxpayer explained that he lacks

faith in the process of a protective order. By drawing that

line, taxpayer left the court little to work with.

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 pro-

tected privacy rights. Poddar v. Dept. of Rev., 328 Or 552,

562-63, 983 P2d 527 (1999) (analyzing taxpayer claim under

16

In the assessor’s Motion to Compel Inspection in TC-MD 190056G, the

assessor attached the Final Decision of Dismissal in TC-MD 180079R discussing

the possibility of a protective order.

Cite as 24 OTR 497 (2021) 513

Or Const, Art I, § 9, and US Const, Amend IV); Bleoaja,

20 OTR at 109-10 (analyzing under US 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, 294 Or 684, 698,

662 P2d 693 (1983).

The court must conclude that taxpayer’s refusal to

work with the assessor and the magistrate to seek a res-

olution 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.17 Now, therefore,

IT IS ORDERED that Defendant’s Motion for

Summary Judgment is granted.

17

At oral argument, taxpayer appeared to ask this division to specially

designate his appeal in TC-MD 190056G for hearing in this division, pursuant

to ORS 305.501(1). Aside from numerous procedural issues under TCR 1 C, the

court denies taxpayer’s request as too late because the case was no longer pend-

ing in the Magistrate Division.