# Department of Revenue v. Carpet Warehouse, Inc. > Oregon Supreme Court · February 8, 1984 · 296 Or. 400 URL: https://www.frixlaw.com/law-library/cases/9576730 ## Case - **Full name:** DEPARTMENT OF REVENUE, Respondent, v. CARPET WAREHOUSE, INC., Appellant; DEPARTMENT OF REVENUE, Respondent, v. ALAN BOWKER CONSTRUCTION, INC., Appellant; DEPARTMENT OF REVENUE, Respondent, v. BOWKER, Appellant - **Court:** Oregon Supreme Court - **Decided:** February 8, 1984 - **Citations:** 296 Or. 400; 676 P.2d 299 - **Precedential status:** Published - **Opinion:** Concurrence by Lent - **Judges:** Jones, Lent - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9576730 ## Opinion text LENT, J., concurring. I concur in the opinion of the majority but write separately about a recurring problem in this kind of case that arises out of an unfortunate use of the term “writ of mandamus” in ORS 314.365. When the legislature decided to give the income and corporate excise tax collecting authority a procedure for compelling the filing of a return, the legislature cast that mechanism in the form of having the court, originally the circuit court and later the Oregon Tax Court, issue a “writ of mandamus.” The statute does not state whether this is to be an alternative writ or a peremptory writ. From the cases of this nature which have come before this court since I have been a member thereof, it appears to me that the Tax Court interprets the statute to speak to an alternative writ. Nevertheless, the statute prescribes a procedure foreign to proceedings in mandamus. *409 The statute requires that “the order of notice upon the petition shall be returnable” and that the “petition” shall be heard on the return day. In mandamus the petition for a writ is not a pleading; the petition becomes functus officio when the alternative writ is issued. The alternative writ is the primary pleading and serves the function of a complaint in an ordinary civil cause. That the statute speaks to proceedings in mandamus leads the practitioner, as in the case at bar, to ORS 34.110 to 34.240. Those code sections appear to apply both to circuit courts and the Tax Court. They prescribe a different procedure than that in the text of ORS 314.365. This must be puzzling to those to whom writs are directed under ORS 314.365. Furthermore, ORS 34.110 states that the writ shall not be issued in any case where there is a plain, speedy and adequate remedy “in the ordinary course of law.” That language leads the putative taxpayer to whom a writ is directed under ORS 314.365 to argue that the Department of Revenue must resort to other remedies, such as that provided to the Department under ORS 305.265(9), which provides in apparently mandatory terms what the Department must do in case of a failure to file a return. 1 At first blush it appears to me that that subsection describes a plain, speedy and adequate remedy “in the ordinary course of law.” Another facet of ORS 34.110 raises interesting questions. The section states that a writ may be issued to a person “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station.” In common parlance we do not think of a putative personal income taxpayer as having a duty resulting from “office, trust or station.” If he does not, he is not a proper object of the *410 proceeding in mandamus. Obviously, he does not have a duty unless he has an “office, trust or station.” Such a putative personal income taxpayer does not hold an “office” that requires the filing of a return. What “trust” is involved? Does he hold a “station”? Perhaps if he is one who, to conform to the laws requiring tax returns, must file a return, that is his station. Other anomalies are suggested by the text of ORS 34.110 to 34.240, but they need not all be mentioned for the purposes of this separate opinion. The plain fact of the matter is that by providing a procedure to compel the filing of a return in terms of “mandamus” the legislature has muddied the waters for no good reason other than apparent unwillingness to spell out a procedure precisely applicable to the problem at hand. For instance, a procedure could readily be based upon the sequence of (1) application for an order to show cause why a return should not be required to be filed, (2) making and entry of an order to show cause, (3) service of the order and citation to appear, (4) determination of the matter by appropriate hearing and court order, and (5) appeal. There is simply no need to cast all of this in terms of a writ with all of its common law and statutory trappings. Were the legislature to respond to this plea, the common weal should well be served. ORS 305.265(9) states: “In the case of a failure to file a report or return on the date prescribed therefor (determined with regard to any extension for filing), the department shall determine the tax according to the best of its information and belief, assess the tax plus appropriate penalty and interest, and give written notice of the determination and assessment to the person required to make the filing. The amount of tax shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be lawfully claimed upon the return.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9576730. Public record. Not legal advice.