As used in the revenue and tax laws of this
state, unless the context requires otherwise:
(1) “Department” means the Department of Revenue.
(2) “Director” means the Director of the Department of Revenue.
[1969 c.520 §2; 1995 c.79 §105; 1995 c.650 §105]
It is the intent of the Legislative Assembly to
place in the Department of Revenue and its director the administration of
the revenue and tax laws of this state, except as specifically otherwise
provided in such laws. [1969 c.520 §1; 1977 c.870 §1]
(1)
The Department of Revenue is established.
(2) The Department of Revenue shall consist of administrative
divisions. Each of the administrative divisions of the department shall
be headed by an administrator who shall be in the unclassified service
under the State Personnel Relations Law and appointed by the Director of
the Department of Revenue. Each administrator shall be well qualified by
technical training and experience in the functions to be performed.
(3) The Director of the Department of Revenue, from time to time,
may alter or amend the organization of the department, including its
administrative divisions, as the director deems necessary to achieve the
greatest efficiency and economy in its operation.
(4) The director, acting in concert with the chief officers of
other state agencies charged with raising revenue, shall use all
reasonable means to increase efficiency and economy by coordinating work
and sharing resources with other agencies, including but not limited to
the mutual use of field officers and field auditors. With respect to such
activity the director shall cause to be prepared a report relating to the
utilization and coordination of revenue raising functions of the state
agencies charged with such responsibility, including but not limited to
suggested plans for departmental or governmental reorganization in the
revenue raising field. Such report shall be submitted to the Governor and
the Legislative Assembly when it next convenes.
(5) The department shall have an official seal, with the words
“Department of Revenue” and “State of Oregon” and such other design as
the director may prescribe. The seal shall be used to authenticate all
papers and proceedings requiring authentication. [1969 c.520 §§3,5; 1973
c.402 §2; 1981 c.848 §1]
(1) The Department of
Revenue shall be under the supervision of the Director of the Department
of Revenue who shall be appointed for a term of four years and shall hold
office at the pleasure of the Governor. The director shall be skilled and
expert in matters of taxation and shall devote the entire time of the
director to the performance of the duties imposed upon the department.
(2) The appointment of the director is subject to confirmation by
the Senate under ORS 171.562 and 171.565. In case the Governor’s choice
of a director is not confirmed, the Governor shall make another
appointment subject to the confirmation by the Senate as provided in this
subsection.
(3) The director shall receive such salary as may be provided by
law. In addition to salary, the director, subject to the limitations
otherwise provided by law, shall be reimbursed for all reasonable
expenses necessarily incurred by the director in the performance of
official duties. Before entering upon the duties of office, the director
shall be bonded under ORS 291.011. [1969 c.520 §4; 1985 c.565 §52; 1985
c.761 §5] (1) Except as otherwise provided by
law, the Director of the Department of Revenue shall coordinate all of
the activities of the Department of Revenue, and has the power of general
supervision over the administration of each division within the
department, and the administrative head thereof, and is directly
responsible to the Governor therefor.
(2) The director shall provide administrative staff, fiscal,
planning and research facilities and services for the agencies within the
department. [1969 c.520 §6; 1995 c.650 §106]
Whenever a power is granted to the
Director of the Department of Revenue, the power may be exercised by such
officer or employee within the Department of Revenue as designated in
writing by the director. Any such designation shall be filed in the
office of the Secretary of State. [1969 c.520 §7; 1975 c.605 §15a] (1) The
Department of Revenue shall maintain its principal offices in the state
capital and shall be furnished with suitable office quarters under ORS
276.004. The department may maintain offices or conduct its business in
other places in the state in order to facilitate the discharge of its
functions.
(2) Necessary printing for the department shall be performed in the
same manner as other state printing. All necessary office equipment and
supplies required by the department shall be purchased from the
appropriation made for the salaries and the general and contingent
expenses of the department. [Formerly 306.060; 1969 c.520 §25; 1969 c.706
§64c; 1997 c.325 §1](1) There is established in the General Fund of the State
Treasury the Department of Revenue Administration Account.
Notwithstanding any other law, such amounts as may be necessary to pay
the administrative expenses of the Department of Revenue shall be
continuously credited to the Department of Revenue Administration Account
from the biennial appropriations, or transferred to such administration
account from the accounts or funds of the divisions and other agencies
within the department. Such amounts as may be requested quarterly by the
Director of the Department of Revenue, with the approval of the Oregon
Department of Administrative Services, shall be credited or transferred
to the Department of Revenue Administration Account from the biennial
appropriations, accounts or funds of the divisions and other agencies
within the department. The Department of Revenue is subject to the
allotment system provided for in ORS 291.234 to 291.260.
(2) The amounts credited and transferred to the Department of
Revenue Administration Account shall not be greater than the total of any
budget approved for the department by the Legislative Assembly and shall
be determined by the costs of the administrative, supervisory, legal and
review services provided the respective divisions and agencies within the
department. All moneys appropriated, credited or transferred to the
Department of Revenue Administration Account are appropriated
continuously to pay the administrative expenses of the department. [1969
c.520 §48] The Director
of the Department of Revenue, with the approval of the Governor, may
designate a deputy director, to serve at the pleasure of the director,
with full authority to act for the director, but subject to the control
of the director. The deputy director shall be skilled and expert in
matters of taxation and shall devote the entire time of the deputy
director to the performance of the duties of the deputy director in the
department. The designation of a deputy director shall be by written
order filed with the Secretary of State. [1969 c.520 §§8,9; 1973 c.402 §3]
(1) Subject to any applicable provisions of the State Personnel Relations
Law:
(a) The Director of the Department of Revenue may appoint and
remove such officers, agents and employees as the director considers
necessary. Such persons shall have the duties and powers the director
from time to time prescribes.
(b) The compensation of all such officers, agents and employees
shall be fixed by the director.
(2) Subject to and in the manner otherwise provided by law, all
officers, agents and employees of the Department of Revenue shall be
allowed such reasonable and necessary traveling and other expenses as may
be incurred in the performance of their duties. [1969 c.520 §11; 1985
c.761 §6]
For the purpose of requesting a state or nationwide criminal records
check under ORS 181.534, the Department of Revenue may require the
fingerprints of a person who:
(1)(a) Is employed or applying for employment by the department; or
(b) Provides services or seeks to provide services to the
department as a contractor or volunteer; and
(2) Is, or will be, working or providing services in a position:
(a) In which the person is providing information technology
services and has control over, or access to, information technology
systems that would allow the person to harm the information technology
systems or the information contained in the systems;
(b) In which the person has access to information, the disclosure
of which is prohibited by state or federal laws, rules or regulations or
information that is defined as confidential under state or federal laws,
rules or regulations;
(c) That has payroll functions or in which the person has
responsibility for receiving, receipting or depositing money or
negotiable instruments, for billing, collections or other financial
transactions or for purchasing or selling property or has access to
property held in trust or to private property in the temporary custody of
the state;
(d) That has mailroom duties as the primary duty or job function of
the position;
(e) In which the person has access to personal information about
employees or members of the public including Social Security numbers,
dates of birth, driver license numbers, personal financial information or
criminal background information; or
(f) In which the person has access to tax or financial information
of individuals or business entities. [2005 c.730 §50]Note: 305.078 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 305 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. The Department
of Revenue is hereby authorized to charge a reasonable sum reflecting its
costs, for each copy sold of maps, documents, or publications such as
those containing its laws and administrative rules or reports. The
proceeds from such sales are to be deposited in the department’s
miscellaneous receipts account established under the authority of ORS
279A.290. [1969 c.479 §3; 1973 c.402 §4; 2003 c.794 §253](Tax Administration) The Department of Revenue shall:
(1) Make such rules and regulations it deems proper to regulate its
own procedure and to effectually carry out the purposes for which it is
constituted.
(2) Prescribe all forms of books and blanks used in the assessment
and collection of taxes not otherwise prescribed by law and change the
forms of blanks and books prescribed by law in case change is necessary.
[Formerly 306.100] The Department of
Revenue shall adopt rules that it considers necessary to carry out the
provisions of chapter 459, Oregon Laws 1991, relating to Local Budget
Law, appeals to boards of property tax appeals, administration of the
property tax laws, imposition and collection of taxes on property or
compliance by local taxing officials with the requirements of section
11b, Article XI of the Oregon Constitution. [1991 c.459 §35; 1995 c.650
§107; 1997 c.541 §§49,50]Note: 305.102 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 305 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.Note: Legislative Counsel has substituted “chapter 459, Oregon Laws
1991,” for the words “this Act” in section 35, chapter 459, Oregon Laws
1991, compiled as 305.102. Specific ORS references have not been
substituted, pursuant to 173.160. These sections may be determined by
referring to the 1991 Comparative Section Table located in Volume 20 of
ORS. The Department of
Revenue in its discretion may, on petition by any interested person,
issue a declaratory ruling with respect to the applicability to any
person, property or state of facts of any rule or statute enforceable by
it. The department shall prescribe by rule the form, content and
procedure for submission, consideration and disposition of such
petitions. Full opportunity for hearing shall be afforded to interested
parties. A declaratory ruling shall bind the department and all parties
to the proceedings on the state of facts alleged, unless it is altered or
set aside by a court. A ruling shall be subject to review in the Oregon
Tax Court and Supreme Court in the manner provided by ORS 305.445.
[Formerly 306.710; 1989 c.414 §2]The Department of Revenue shall construe the tax and
revenue laws of this state whenever requested by any interested person or
by any officer acting under such laws and shall instruct such officers as
to their duties under such laws. Such officers shall submit all questions
arising with them which affect the construction of tax and revenue laws
of the state to the department. [Formerly 306.110] (1) The Department of Revenue
shall see that revenue officers comply with the tax and revenue laws,
that all taxes are collected, that complaint is made against any person
violating such laws and that penalties prescribed by such laws are
enforced.
(2) The Director of the Department of Revenue may call upon the
district attorney or Attorney General to institute and conduct
prosecutions for violations of the laws in respect to the assessment and
taxation of property and the collection of public taxes and revenues.
[Formerly 306.140](1) The Department of
Revenue may be made a party in any action in any court of this state or
of the United States having jurisdiction of the subject matter to quiet
title to, to remove a cloud from the title to, or for the foreclosure of
a mortgage or other lien upon, any real property or personal property, or
both, upon which the State of Oregon has or claims to have a lien under
ORS 311.673, 311.679, 311.771, 314.430 or 321.570 or ORS chapter 323, and
the judgment in such action shall be conclusive and binding upon the
State of Oregon and such department.
(2) The complaint in such action shall set forth with particularity
the nature of any such lien had or claimed by the State of Oregon. The
summons in such action, together with a copy of the complaint therein,
shall be served on such department in the manner prescribed by ORCP 7
D(3)(d), and such summons shall require such department to appear and
answer the complaint within 60 days from the date of such service. [1961
c.573 §4; 1979 c.284 §134; 1981 c.706 §6; 1985 c.816 §37; 1987 c.158 §43;
1989 c.948 §7; 2003 c.804 §63] (1)
Any person having an interest in or lien upon any real property may
request the Department of Revenue in writing to release such real
property from a cloud on the title of or lien on such property existing,
created or continued under any one or more of the following:
(a) A warrant provided for in ORS 314.430, 321.570 or 323.610; or
(b) The provisions of ORS 311.673, 311.679, 311.689, 311.711 or
311.771.
(2) If, upon a request under subsection (1) of this section, the
department finds that a sale of such real property would not result in
satisfaction in whole or in part of the taxes due, it shall execute a
release of such cloud or lien upon such property, and such release shall
be conclusive evidence of the removal and extinguishment of such cloud or
lien in respect of such real property.
(3) In addition to the release of cloud or lien provided for in
subsection (1) of this section, the department may execute releases on
part or all of any real property in the following cases, which releases
shall be conclusive evidence of the removal and extinguishment of such
cloud or lien:
(a) If the department finds that liability for the amount assessed,
together with all interest thereon and penalties and costs in respect
thereof, has been satisfied;
(b) If the department finds that the fair market value of that part
of the property remaining subject to the cloud or lien is at least double
the amount of the liability remaining unsatisfied in respect of such tax
and the amount of all prior liens upon the property;
(c) If there is supplied to the department either an irrevocable
letter of credit issued by an insured institution as defined in ORS
706.008 or a bond, in such form and with such surety as the department
considers sufficient, conditioned upon the payment of the amount of the
warrant, together with all interest in respect thereof, within 60 days
after the issuance of the release; or
(d) If there is paid to the department in partial satisfaction of
the amount of the warrant provided for in ORS 314.430, 321.570 or 323.610
or the amount of any lien under ORS 311.673, 311.679, 311.689, 311.711 or
311.771, an amount not less than the value, as determined by the
department, of the lien of the State of Oregon upon the part of the
property so to be released. In determining such value the department
shall give consideration to the fair market value of the part of the
property so to be released and to such liens thereon as have priority to
the lien of the State of Oregon. [1961 c.573 §3 (enacted in lieu of
314.435, 315.635 and 321.085); 1981 c.706 §7; 1985 c.816 §38; 1987 c.158
§44; 1989 c.948 §8; 1991 c.331 §53; 1997 c.631 §448](1) The
Department of Revenue or a county tax collector shall waive interest on
an assessment if the taxpayer has failed to make a timely payment or has
received an incorrect refund because:
(a) An employee of the department or of a county tax collector
acting in an official capacity, who had knowledge of the necessary facts,
misled the taxpayer either by some erroneous factual representation or by
a course of dealing or conduct;
(b) The taxpayer relied on the misleading factual representation or
conduct; and
(c) The taxpayer failed to make a timely payment or has received an
incorrect refund by reason of the taxpayer’s reliance on the information
or course of conduct.
(2) Notwithstanding the provisions of subsection (1) of this
section, interest may not be waived after the appeal period for a final
determination has expired.
(3) The Department of Revenue may, in its discretion, upon good and
sufficient cause, according to and consistent with its rules and
regulations, upon making a record of its reason therefor, waive, reduce
or compromise any tax balance of $50 or less or any part or all of the
interest provided by the laws of the State of Oregon that are collected
by the Department of Revenue.
(4) The department may establish by rule instances in which the
department may, in its discretion, waive any part or all of penalties
provided by the laws of the State of Oregon that are collected by the
department. Rules adopted under this subsection are limited to the waiver
or reduction of penalties in cases where:
(a) Good and sufficient cause exists for the actions of a taxpayer
that resulted in the imposition of a penalty;
(b) The actions of a taxpayer that resulted in the imposition of a
penalty constitute a first-time offense on the part of the taxpayer; or
(c) The actions of the department enhance long-term effectiveness,
efficiency or administration of the tax system. [1965 c.293 §1; 1971
c.611 §1; 1985 c.761 §8; 1987 c.477 §1; 1995 c.650 §108; 2005 c.136 §1] (1) The Department of Revenue is
authorized to enter into an agreement in writing with any person relating
to the liability of such person, or of the person or estate for whom the
person acts, for any taxable period open to adjustment under the
pertinent statutes of limitation, in respect of any revenue measure which
the department is required to administer.
(2) Such agreement shall be final and conclusive on the date agreed
to, and, except upon a showing of fraud or malfeasance or
misrepresentation of a material fact, the question, issue or case shall
not be reopened as to the matters agreed upon, and, in any action, suit
or proceeding, such agreement, or any determination, assessment,
collection, refund, abatement or credit made in accordance therewith
shall not be annulled, modified, set aside or disregarded. [Formerly
306.720; 1969 c.520 §26](1) The Department of Revenue shall cancel an unpaid tax imposed
by laws of the State of Oregon that is collected by the department,
including any penalty or interest applicable to the tax, if the
department determines that:
(a) The tax has been delinquent for seven or more years;
(b) All reasonable efforts have been made to effect collection;
(c) The taxpayer cannot be located or is dead; and
(d) The tax is wholly uncollectible.
(2) The department may cancel any tax imposed by laws of the State
of Oregon that is collected by the department or any portion of the tax
assessed against a person, including any penalty and interest that has
not been collected, if the department determines that the administration
and collection costs involved would exceed the amount that can reasonably
be expected to be recovered.
(3) When taxes are canceled under subsection (1) or (2) of this
section, the department shall make an order canceling the tax, penalties
and interest. The order shall be filed in the records of the department.
Upon making the order, the department also shall cause to be canceled or
released any lien of record in the counties that may have been filed and
entered therein. [1965 c.293 §2; 1973 c.402 §5; 1989 c.934 §2; 2003 c.46
§2] (1) The Director
of the Department of Revenue by order may extend any statutory period of
limitation for taking action on any tax that is collected by the
Department of Revenue when the director determines, in the director’s
sole discretion, that an action of the Internal Revenue Service or a
state-declared emergency will impair the ability of Oregon taxpayers or
the state to take the action required within the time prescribed by law.
The order may apply retroactively and extend a period of limitation that,
as of the date of the order, has expired.
(2) The Secretary of State shall publish the order in the bulletin
referred to in ORS 183.360. [2003 c.168 §2] The Department of Revenue
shall require from any state, county or municipal officer, whose duties
pertain to the assessment, apportionment, levy or collection of taxes and
public revenues, or the disbursement of public funds, reports and
statements in such forms as the department may prescribe, as to any
matter deemed material and relevant to the attainment of uniformity in
the assessment and collection of taxes and public revenues. [Formerly
306.160]The Department of Revenue:
(1) Shall see that complaints concerning the law may be heard,
information as to its effects may be collected and all proper suggestions
as to amendments may be made.
(2) Shall report to the Legislative Assembly, at each regular
session, the total amount of taxes collected in the state for state,
county and municipal purposes.
(3) May investigate the tax laws of this and other states and the
possible taxable resources of this state for the purpose of recommending
to the legislature methods by which a more just and equitable system of
taxation may be developed.
(4) Shall recommend to the Legislative Assembly at each regular
session such amendments of the Constitution or laws as may seem necessary
to remedy injustice or irregularity in taxation, or to facilitate the
assessment and collection of public taxes and revenues. [Formerly
306.170; 1975 c.605 §16](1) For the purposes of out-of-state collections, a tax
warrant shall have the effect of a judgment as provided by ORS 205.125
and 314.430. However, if the laws of another state require a judgment
issued by a court for the purposes of executing creditor’s remedies in
that state, the Department of Revenue may obtain a judgment based upon a
tax warrant as provided in this section.
(2) The department shall give 30 days’ written notice to any person
subject to a warrant for the collection of taxes, penalties or interest
of its intention to obtain a judgment in the Oregon Tax Court. Such
notice shall be given by either certified or registered mail. The person
subject to the warrant shall have 30 days from the date of mailing of the
notice to:
(a) Pay the amount of taxes, penalties and interest due; or
(b) File a complaint in the Oregon Tax Court contesting the
validity of the warrant.
(3) If the amount due is not paid or an appeal to the Oregon Tax
Court is not made within 30 days from the date of mailing of the notice,
the department may petition the Oregon Tax Court to enter a judgment in
the amount indicated in the warrant plus interest.
(4) Upon a showing by the department, by affidavit or otherwise,
that the department has complied with the provisions governing the
issuance of a warrant and the provisions of this section, the Oregon Tax
Court shall enter a judgment against the person subject to the warrant in
the amount indicated in the warrant plus interest.
(5) Appeals from judgments issued under subsection (4) of this
section shall be made in the manner provided for appeal of a judgment of
the Oregon Tax Court. [1989 c.423 §2; 1995 c.53 §1; 1995 c.650 §109](1) The Department of Revenue may file warrants issued
against any taxpayer for unpaid taxes in the Office of the Secretary of
State as provided in this section.
(2) Certification of warrants for unpaid taxes by the Director of
the Department of Revenue, or the representative of the director,
entitles the warrants to be filed and no other certification or
acknowledgment is necessary.
(3) If a warrant described in subsection (1) of this section is
presented to the Secretary of State for filing, the Secretary of State
shall cause the warrant to be marked, held and indexed in accordance with
the provisions of ORS 79.0519 as if the warrant were a financing
statement within the meaning of ORS chapter 79.
(4) If a certificate of release, cancellation or satisfaction of
any warrant is presented to the Secretary of State for filing, the
Secretary of State shall:
(a) Cause a certificate of release to be marked, held and indexed
as if the certificate were a termination statement within the meaning of
ORS 79.0512.
(b) Cause a certificate of cancellation or satisfaction to be held,
marked and indexed as if the certificate were a release of collateral
within the meaning of ORS 79.0512. [Formerly 314.432; 2001 c.445 §172]Note: For transition provisions regarding secured transactions, see
notes under 79.0628. (1) Upon request
of any person, the Secretary of State shall issue a certificate showing
whether there is on file in the Office of the Secretary of State, on the
date and hour stated therein, any warrant described in ORS 305.182 (1),
or certificate or notice affecting any warrant naming a particular
person, and if a notice or certificate is on file, giving the date and
hour of its filing. All financing statements and statements of
assignment, if any, filed pursuant to ORS chapter 79 for a particular
debtor whose name is identical to the particular person named in the
warrant shall be shown on this certificate. The uniform fee for such a
certificate for a particular person shall be prescribed by the Secretary
of State by rule. If the request for the certificate is in writing and
not in the standard form prescribed by the Secretary of State, an
additional fee shall be prescribed. Upon request, the Secretary of State
shall furnish a copy of any warrant or notice or certificate affecting a
warrant for a fee per page, the fee to be as prescribed by the Secretary
of State by rule. No fee prescribed under this subsection shall exceed $5.
(2) Notwithstanding the provisions of ORS 79.0525 or subsection (1)
of this section, relating to the time and manner of the payment of fees
to the Secretary of State, the fee for filing and indexing each warrant
described in ORS 305.182 (1) shall be charged and collected in the same
manner as provided in ORS 205.395 for payment by a state agency of fees
due to the county clerk for recording warrants. [Formerly 314.434; 2001
c.445 §173]Note: For transition provisions regarding secured transactions, see
notes under 79.0628.(1) Subject to ORS
305.390 and 305.392, the Director of the Department of Revenue, in
conformity to the resolutions or rules of the Department of Revenue, may
subpoena and examine witnesses, administer oaths and order the production
of any books or papers in the hands of any person, company or
corporation, whenever necessary in the prosecution of any inquiries
deemed necessary or proper.
(2) If any person disobeys any subpoena of the director, or refuses
to testify when required by the director, the department may apply to the
Oregon Tax Court for an order to the person to produce the books and
papers or attend and testify, or otherwise comply with the demand of the
department. The application to the court shall be by ex parte motion upon
which the court shall make an order requiring the person against whom it
is directed to appear before the court in the county in which the person
resides or has a place of business on such date as the court shall
designate in its order and show cause why the person should not comply
with the demand of the department. The order shall be served upon the
person to whom it is directed in the manner required by this state for
service of process, which service shall be required to confer
jurisdiction upon the court. Upon failure of such person to show cause
for noncompliance, the court shall make an order requiring the person to
comply with the demand of the department within such time as the court
shall direct. Failure to obey any order issued by the court under this
section is contempt of court. The remedy provided by this section shall
be in addition to other remedies, civil or criminal, existing under the
tax laws or other laws of this state.
(3) ORS 305.420 (4) applies to the issuance of a subpoena under
this section. [Formerly 306.190; 1977 c.884 §4; 1981 c.139 §7; 1993 c.353
§5; 2003 c.46 §3; 2005 c.345 §3](1) Notwithstanding ORS 192.410 to
192.505 or any other law or rule, any books or papers produced by an
owner or any other person with respect to an industrial property,
pursuant to an order issued under ORS 305.190 (1) in connection with the
appraisal or assessment of industrial property, shall be exempt from
disclosure by the Department of Revenue. No subpoena or judicial order
shall be issued compelling the department or any of its officers or
employees to disclose those books or papers.
(2) Notwithstanding subsection (1) of this section, the department
may disclose, subject to any order entered by the court limiting further
disclosure, any books or papers, or any part or all of the information
contained therein, in a judicial proceeding involving the value of that
industrial property with respect to which the books and papers were
produced or any other similar industrial property.
(3) Before the department discloses information under subsection
(2) of this section, it shall notify the owner of the property to which
the information relates. The owner shall have 30 days to seek an order
from the tax court prohibiting or limiting the department’s disclosure of
the information. In determining whether to allow disclosure of the
information, the court shall consider the need for disclosure and the
possible harm to the owner from that disclosure. The decision of the tax
court is reviewable by the Supreme Court in the same manner as any other
decision of the tax court. [1991 c.903 §3; 1995 c.650 §83]
(1) Notwithstanding any law restricting the disclosure of taxpayer
particulars or other tax information, the Department of Revenue may adopt
rules permitting the disclosure of particulars or other tax information
to a person designated by a taxpayer, either expressly or by implication,
to receive the information. The department may consider a person
designated by implication if the person reveals to the department
knowledge of tax information that is:
(a) Related to the tax matter that is the subject of the inquiry or
communication;
(b) Of a nature that is generally known only to the taxpayer; and
(c) Of a nature that a taxpayer ordinarily would not share with
another person except for the purpose of empowering that person to
receive information regarding the tax matters of the taxpayer.
(2) Rules adopted under this section may be limited in application
to specific tax programs or specific classes of taxpayers.
(3) This section does not apply to any particulars or other tax
information collected for purposes of administering the provisions of ORS
chapter 657.
(4) As used in this section, “particulars” has the meaning given
that term in ORS 314.835. [2003 c.541 §3](1) The Department of Revenue may serve
upon any taxpayer written interrogatories to be answered by the taxpayer
served or, if the taxpayer served is a corporation, partnership or
association, by any officer or agent, who shall furnish such information
as is available to the taxpayer. Interrogatories may be served by the
department whenever it deems it necessary for the purpose of determining
the tax liability of any taxpayer having income from business activity
which is taxable both within and without the state. The request for the
interrogatories shall explain the nature of the department’s inquiry, the
use to be made of the information, and the rights of appeal provided
under subsection (4) of this section. The use of interrogatories shall be
available at all times prior to a final order or determination by the
department in the matter being investigated.
(2) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the reasons
for objection shall be stated in lieu of an answer. The answers are to be
signed by the person making them. All objections made to written
interrogatories must be signed by the attorney for the party making the
objection, or by the party if the party has no attorney. The taxpayer
upon whom the interrogatories have been served shall serve a copy of the
answers, and objections if any, within 30 days after the service of the
interrogatories.
(3) If any taxpayer refuses or fails to answer an interrogatory
within the time required, the department may apply to the Oregon Tax
Court for an order requiring answer of the interrogatory served. The
application to the court shall be by ex parte motion upon which the court
shall make an order requiring the taxpayer against whom it is directed to
appear before the court on such date as the court shall designate in its
order and show cause why the taxpayer should not answer the interrogatory
of the department. The order shall require appearance in the county in
which the person resides or has a place of business, or if there is no
residence or place of business, at the court at Salem, Oregon, or in any
event at such place as is agreeable to the parties and the court. The
order shall be served upon the person to whom it is directed in the
manner required by this state for service of process, which service shall
be required to confer jurisdiction upon the court. Upon failure of such
person to show cause for noncompliance, the court shall make an order
requiring the person to comply with the demand of the department within
such time as the court shall direct. Failure to obey any order issued by
the court under this section is contempt of court. The remedy provided by
this section shall be in addition to other remedies, civil or criminal,
existing under the tax laws or other laws of this state.
(4) If, after the taxpayer has been served with the department’s
interrogatories, the taxpayer has reason to believe that the taxpayer has
not been fully informed by the department as to the nature of the
department’s inquiry or the use by the department of the information
supplied, the taxpayer may, within 30 days after service upon the
taxpayer, serve upon the department a demand for full information as to
such inquiry and use. The department shall answer the demand within 30
days of receipt. If no answer is made by the department, or if answer is
made and the answer is deemed unsatisfactory by the taxpayer, the
taxpayer may within 30 days of the department’s answer, or 60 days of the
demand if no answer has been made, apply to the Oregon Tax Court for an
order requiring answer of the department by filing a petition in the
manner provided by law for filing a personal income tax appeal to the
court. The department shall answer and, after hearing, the court shall
make such disposition of the matter as it deems necessary to achieve
justice. [1977 c.866 §8]Note: 305.195 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 305 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. Witnesses testifying before the
Department of Revenue at its request and on its behalf shall be allowed
the fees and mileage provided for witnesses in ORS 44.415 (2). The fees
and mileage shall be paid by warrant upon the State Treasurer upon the
certificate of the Director of the Department of Revenue. However, any
county or state officer shall receive the actual necessary traveling
expenses of the county or state officer only. No tender of witness fees
or mileage in advance shall be necessary. [Formerly 306.200; 1969 c.520
§27; 1989 c.980 §11](1) Where there are
conflicting claims to a personal exemption credit for a dependent allowed
under the personal income tax laws, the Department of Revenue shall
notify by certified mail each person claiming the same dependent, and
shall set a time and place convenient to each claim insofar as it is
practicable, for a joint determination of the conflicting claims. Each
person so notified who appears shall bring the information from the
person’s income tax returns or reports that supports the person’s claim,
together with all records, data or other evidence providing the necessary
supporting material to the information shown on the income tax return.
All such material shall be available for inspection by the other
claimant, notwithstanding any provision of ORS 314.835, 314.840 or
314.991. If either claimant fails or refuses to appear or bring such
information in part or in whole, the department shall make its
determination on the basis of all the information and evidence supplied.
The provisions of this chapter relating to the administration of the
personal income tax laws apply to the determination.
(2) If an appeal is taken to the Oregon Tax Court pursuant to ORS
305.560 by either claimant, each claimant shall make available to the
court information from the person’s income tax returns or reports
supporting that person’s claim, together with all evidence or supporting
data furnished to or subpoenaed by the Department of Revenue, as well as
such other information as may be presented to the court in the manner
otherwise provided for in the hearing of cases in the Oregon Tax Court.
If either claimant fails or refuses to appear or bring such information
in part or in whole, the court shall make its determination on the basis
of all the evidence introduced. All such evidence shall constitute a
public record and shall be available to the parties and the court
notwithstanding any provision of ORS 314.835, 314.840 or 314.991. [1979
c.690 §11; 1985 c.345 §4; 1987 c.293 §61; 2005 c.94 §18]No deduction shall be allowed under ORS chapter 316, 317 or
318 to an individual or entity for amounts paid as wages or as
remuneration for personal services if that individual or entity fails to
report the payments as required by ORS 314.360 or 316.202 on the date
prescribed therefor (determined with regard to any extension of time for
filing) unless it is shown that the failure to report is due to
reasonable cause and not done with the intent to evade payment of the tax
imposed by ORS chapter 316 or to assist another in evading the payment of
such tax. [1987 c.843 §2](1) Unless specifically provided otherwise
by statute or by rule of the Director of the Department of Revenue
adopted pursuant to subsection (3) of this section, every deficiency or
delinquency arising under any law administered by the Department of
Revenue shall bear simple interest at the rate of five-sixths of one
percent per month or fraction thereof.
(2) Unless specifically provided otherwise by statute or by rule of
the director adopted pursuant to subsection (3) of this section, every
refund arising under any law administered by the department shall,
subject to subsections (3) and (5) of this section and ORS 305.222, bear
simple interest at the rate of five-sixths of one percent per month, or
fraction thereof.
(3)(a) If the director determines that the rates of interest for
deficiencies, delinquencies and refunds established in subsections (1)
and (2) of this section are at least one percentage point more or less
than the prevailing rates of interest established by the Internal Revenue
Service for underpayments arising under the federal tax laws to which one
percentage point has been added, the director may adopt, by rule,
adjusted interest rates. The director shall not adopt adjusted interest
rates more than once in a calendar year. Notice of intent to adopt
adjusted interest rates shall be given in the manner provided in ORS
183.335, not less than three months before the proposed effective date of
the adjusted rates.
(b) In establishing the adjusted interest rates to be adopted under
this subsection:
(A) The director shall take into consideration the current interest
rates established by the Internal Revenue Service for underpayments
arising under the federal tax laws.
(B) To any interest amount determined by taking into consideration
the current interest rates established by the Internal Revenue Service
for underpayments under subparagraph (A) of this paragraph, which
interest amount shall be expressed at a rate per month or fraction
thereof, there shall be added one-twelfth of one percent.
(4) If the director adopts an adjusted interest rate for
deficiencies and delinquencies, the director shall adopt an adjusted
interest rate for refunds that is equal to the adjusted interest rate for
deficiencies and delinquencies.
(5) Any change in the rate of interest applicable to deficiencies,
delinquencies or refunds resulting from the adoption of adjusted interest
rates by the director under this section shall apply to deficiencies,
delinquencies and refunds outstanding on the effective date of the rule,
or arising on or after that date, but only with respect to interest
periods beginning on or after that date.
(6) If the rate of interest on a deficiency, a delinquency or a
refund is governed by this section, and if a fraction of a month is
involved in making the computation of interest on the deficiency,
delinquency or refund, then for the fractional month, the simple interest
otherwise provided shall be computed on a daily basis. [1982 s.s.1 c.16
§2; 1987 c.647 §5; 2001 c.114 §§2,4] For purposes of determining
the interest rate established under ORS 305.220:
(1) In the case of a refund of tax ordered by the Oregon Tax Court
or the Oregon Supreme Court and arising under any law administered by the
Department of Revenue, if the refund is not paid by the department within
60 days after the date of the order, the interest rate provided under ORS
305.220 shall be one-third of one percent greater than that so provided
under ORS 305.220, but only with respect to interest periods that begin
61 days after the date the order is entered.
(2)(a) In the case of a notice of assessment pursuant to any law
administered by the department, if the deficiency is not paid within 60
days after the date of the notice of assessment, the interest rate
provided under ORS 305.220 shall be one-third of one percent greater than
that so provided under ORS 305.220, but only for interest periods that
begin 61 days after the date of notice of assessment.
(b) In the case of an assessment under ORS 305.265 (12), if the
delinquency is not paid within 60 days after the date of the assessment,
the interest rate provided under ORS 305.220 shall be one-third of one
percent greater than that so provided under ORS 305.220. The increased
rate shall apply only for interest periods that begin 61 days after the
date of notice of the delinquency.
(3) If the deficiency assessment is appealed to the Oregon Tax
Court without prior payment of tax, then notwithstanding subsection (2)
of this section, the increased rate of interest shall commence only for
interest periods that begin 61 days after the date that the order of the
Oregon Tax Court or the Oregon Supreme Court affirming the deficiency is
entered. [1987 c.647 §7; 1993 c.726 §2; 1995 c.650 §110; 1997 c.325 §§3,4](1) Notwithstanding ORS 314.835, if the Department of
Revenue determines that assistance of a law enforcement agency is
necessary to insure compliance with any of the laws of this state
administered by it, the department may request such assistance. In
connection with assistance requested under this section only, the
Department of Revenue may disclose a tax return, report or claim, or
information in its files regarding a tax return, report or claim
permitted or required to be filed with the department under any law
administered by the department to the Oregon State Police, district
attorney, grand jury or judicial authority for the investigation or the
prosecution of violations of the criminal laws of this state relating to
perjury, theft or forgery if those violations occur in connection with
the filing of such a return, report or claim, or of the tax laws of this
state. Disclosure under this section shall be solely for the purpose of
investigation or prosecution of violations involving the filing of a
false or fraudulent return, report or claim, wherein the validity of the
return, report or claim, or information contained therein, is at issue.
Returns, reports or claims, or information contained therein shall not be
disclosed if the purpose for which the information is sought is as
evidence of a crime unrelated to the validity of the return, report or
claim, or the information contained therein, supplied to the department
or if the information is requested by a law enforcement agency in
connection with any other investigation or prosecution.
(2) Each person given access to the confidential tax information
authorized to be disclosed under this section shall first execute and
file with the department the certificate required by ORS 314.840 (3) and
shall cause a similar certificate to be executed and filed with the
department by any associate or subordinate who is assigned to use the
information for the purposes stated in this section. [1985 c.761 §26] (1)
The Department of Revenue shall assess a penalty against any person who
has previously tendered a dishonored check, draft, order or electronic
funds transfer for the payment of any amount collected by the department
and who subsequently makes and tenders to the department any check,
draft, order or electronic funds transfer for the payment of any tax or
any other amount collected by the department, including amounts assigned
for collection under ORS 293.250, that is dishonored by the drawee for
the following reasons:
(a) Lack of funds;
(b) Lack of credit;
(c) Because the maker has no account with the drawee; or
(d) Because the maker has ordered payment stopped on the check,
draft, order or electronic funds transfer.
(2) The amount of the penalty assessed under subsection (1) of this
section shall be equal to the greater of $25 or three times the amount of
the dishonored check, draft, order or electronic funds transfer. The
amount of the penalty shall not be greater than $500.
(3) The penalty imposed under this section is in addition to any
other penalty imposed by law. Any person against whom a penalty is
assessed under this section may appeal to the tax court as provided in
ORS 305.404 to 305.560. If the penalty is not paid within 10 days after
the order of the tax court becomes final, the department may record the
order and collect the amount assessed in the manner as income tax
deficiencies are recorded and collected under ORS 314.430.
(4) The department may waive all or any part of the penalty
assessed under this section on a showing that there was a reasonable
basis for tendering the check, draft, order or electronic funds transfer.
(5) As used in this section, “electronic funds transfer” has the
meaning given that term in ORS 293.525. [1985 c.85 §3; 1995 c.650 §111;
1999 c.61 §1] Notwithstanding any
other provision of the tax laws of this state that are administered by
the Department of Revenue, the department may adopt rules setting forth
circumstances or conditions under which a penalty that otherwise would be
imposed under those tax laws is not imposed. [2003 c.317 §5](Representation of Taxpayer)(1) Notwithstanding ORS 9.320:
(a) Any person who is qualified to practice law or public
accountancy in this state, any person who has been granted active
enrollment to practice before the Internal Revenue Service and who is
qualified to prepare tax returns in this state or any person who is the
authorized employee of a taxpayer and is regularly employed by the
taxpayer in tax matters may represent the taxpayer before a tax court
magistrate or the Department of Revenue in any conference or proceeding
with respect to the administration of any tax.
(b) Any person who is licensed by the State Board of Tax
Practitioners or who is exempt from such licensing requirement as
provided for and limited by ORS 673.610 may represent a taxpayer before a
tax court magistrate or the department in any conference or proceeding
with respect to the administration of any tax on or measured by net
income.
(c) Any shareholder of an S corporation, as defined in section 1361
of the Internal Revenue Code, as amended and in effect on December 31,
2004, may represent the corporation in any proceeding before a tax court
magistrate or the department in the same manner as if the shareholder
were a partner and the S corporation were a partnership. The S
corporation must designate in writing a tax matters shareholder
authorized to represent the S corporation.
(d) Any person who is licensed as a real estate broker or principal
real estate broker under ORS 696.022 or is a state certified appraiser or
state licensed appraiser under ORS 674.310 or is a registered appraiser
under ORS 308.010 may represent a taxpayer before a tax court magistrate
or the department in any conference or proceeding with respect to the
administration of any ad valorem property tax.
(e) A general partner who has been designated by members of a
partnership as their tax matters partner under ORS 305.242 may represent
those partners in any conference or proceeding with respect to the
administration of any tax on or measured by net income.
(f) Any person authorized under rules adopted by the department may
represent a taxpayer before the department in any conference or
proceeding with respect to any tax. Rules adopted under this paragraph,
to the extent feasible, shall be consistent with federal law that governs
representation before the Internal Revenue Service, as federal law is
amended and in effect on December 31, 2004.
(g) Any person authorized under rules adopted by the tax court may
represent a taxpayer in a proceeding before a tax court magistrate.
(2) A person may not be recognized as representing a taxpayer
pursuant to this section unless there is first filed with the magistrate
or department a written authorization, or unless it appears to the
satisfaction of the magistrate or department that the representative does
in fact have authority to represent the taxpayer. A person recognized as
an authorized representative under rules or procedures adopted by the tax
court shall be considered an authorized representative by the department.
(3) A taxpayer represented by someone other than an attorney is
bound by all things done by the authorized representative, and may not
thereafter claim any proceeding was legally defective because the
taxpayer was not represented by an attorney.
(4) Prior to the holding of a conference or proceeding before the
tax court magistrate or department, written notice shall be given by the
magistrate or department to the taxpayer of the provisions of subsection
(3) of this section. [1969 c.97 §1; 1973 c.681 §3; 1979 c.596 §1; 1985
c.761 §40; 1985 c.802 §35; 1987 c.468 §6; 1989 c.414 §3; 1991 c.5 §19;
1995 c.79 §106; 1995 c.556 §30; 1995 c.650 §12; 1997 c.839 §41; 1999 c.90
§28; 1999 c.224 §4; 1999 c.322 §36; 2001 c.300 §59; 2001 c.660 §23; 2003
c.46 §4; 2003 c.77 §1; 2003 c.704 §14a; 2005 c.345 §4; 2005 c.346 §1;
2005 c.832 §13](1) When the
treatment of partnership items on a partner’s return is consistent with
the treatment of that item on the partnership return and results in a
notice of deficiency, the partners may designate a tax matters partner to
represent each of them before the Department of Revenue in any conference
or before a tax court magistrate in any proceeding with respect to the
administration of any tax on or measured by net income.
(2) The designation of a tax matters partner shall be made in
writing and filed with the department or magistrate within 30 days after
the date of the notice of deficiency. The tax matters partner must be:
(a) A general partner in the partnership at some time during the
taxable year; or
(b) A general partner in the partnership at the time the
designation is made.
(3) If a notice explaining the partnership adjustments is mailed by
the department to the tax matters partner with respect to any partnership
taxable year, the tax matters partner shall supply the department or, if
applicable, the magistrate with the name, address, profits interest and
taxpayer identification number of each person who was a partner in the
partnership at any time during the taxable year, unless that information
was provided in the partnership return for that year.
(4) A timely request for a conference filed with the department or
appeal filed with the tax court by the tax matters partner shall be
considered as a request or an appeal by all of the partners represented
by the tax matters partner, and all issues regarding treatment of
partnership items shall be resolved in a single conference.
(5) A partner who elects to be represented by a tax matters partner
shall be bound by all things done by the tax matters partner and may not
thereafter claim that any act or proceeding was legally defective because
the partner was not represented by an attorney. [1989 c.414 §1; 1995
c.650 §13]Note: 305.242 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 305 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.Notwithstanding ORS 8.690, 9.160,
9.320, ORS chapter 180, ORS 203.145 or other law, in any conference or
proceeding before a tax court magistrate with respect to the
administration of any tax, a county or the Department of Revenue may be
represented by any officer or authorized employee of the county or
department. [1985 c.761 §39; 1995 c.650 §14]No former officer, clerk or employee of
the Department of Revenue shall represent any taxpayer in any claim or
controversy pending in the Department of Revenue or in the magistrate
division of the tax court during the employment of the former officer,
clerk or employee therein, nor shall the former officer, clerk or
employee in any manner or by any means, aid in the prosecution of any
such claim, within two years next after the former officer, clerk or
employee has ceased to be such officer, clerk or employee. [1973 c.402
§25(1); 1995 c.650 §15](Tax Deficiencies; Notice; Appeals)(1) If a person fails to file a report or return within
60 days of the time prescribed by any tax law administered by the
Department of Revenue, the department may petition the Oregon Tax Court
for an order requiring the person to file the report or return or to show
cause why the person is not required to file the report or return.
(2) Within 10 days after the filing of the petition, the tax court
shall enter an order directing the person to file the report or return or
to appear and show cause why no report or return is required to be filed.
The petition and order shall be served upon the person in the manner
provided by law for service of a complaint filed in the tax court. Not
later than 20 days after service, the person shall:
(a) File the requested report or return with the department;
(b) Request from the court an order granting reasonable time within
which to file the requested report or return with the department; or
(c) File with the court an answer to the petition showing cause why
such report or return is not required to be filed.
(3)(a) If an answer is filed, the court shall set the matter for
hearing within 20 days from the filing of the answer, and shall determine
the matter in an expeditious manner, consistent with the rights of the
parties.
(b) If the person fails to answer within the time prescribed, or if
the person fails to obey any order entered by the tax court under this
section, such failure is punishable as contempt of court.
(4) An appeal may be taken to the Supreme Court as provided in ORS
305.445, from an order of the tax court made and entered after a hearing
and determination under subsection (3) of this section.
(5) Costs shall be awarded to the prevailing party. [1985 c.266 §3](1) Except as provided in ORS 305.305, the provisions
of this section apply to all reports or returns of tax or tax liability
including claims under ORS 310.630 to 310.706 filed with the Department
of Revenue under the revenue and tax laws administered by it, except
those filed under ORS 320.005 to 320.150.
(2) As soon as practicable after a report or return is filed, the
department shall examine or audit it, if required by law or the
department deems such examination or audit practicable. If the department
discovers from an examination or an audit of a report or return or
otherwise that a deficiency exists, it shall compute the tax and give
notice to the person filing the return of the deficiency and of the
department’s intention to assess the deficiency, plus interest and any
appropriate penalty. Except as provided in subsection (3) of this
section, the notice shall:
(a) State the reason for each adjustment;
(b) Give a reference to the statute, regulation or department
ruling upon which the adjustment is based; and
(c) Be certified by the department that the adjustments are made in
good faith and not for the purpose of extending the period of assessment.
(3) When the notice of deficiency described in subsection (2) of
this section results from the correction of a mathematical or clerical
error and states what would have been the correct tax but for the
mathematical or clerical error, such notice need state only the reason
for each adjustment to the report or return.
(4) With respect to any tax return filed under ORS chapter 314,
316, 317 or 318, deficiencies shall include but not be limited to the
assertion of additional tax arising from:
(a) The failure to report properly items or amounts of income
subject to or which are the measure of the tax;
(b) The deduction of items or amounts not permitted by law;
(c) Mathematical errors in the return or the amount of tax shown
due in the records of the department; or
(d) Improper credits or offsets against the tax claimed in the
return.
(5)(a) The notice of deficiency shall be accompanied by a statement
explaining the person’s right to make written objections, the person’s
right to request a conference and the procedure for requesting a
conference. The statement, and an accompanying form, shall also explain
that conference determinations are routinely transmitted via regular mail
and that a person desiring to have conference determinations transmitted
by certified mail may do so by indicating on the form the person’s
preference for certified mail and by returning the form with the person’s
written objections as described in paragraph (b) of this subsection.
(b) Within 30 days from the date of the notice of deficiency, the
person given notice shall pay the deficiency with interest computed to
the date of payment and any penalty proposed. Or within that time the
person shall advise the department in writing of objections to the
deficiency, and may request a conference with the department, which shall
be held prior to the expiration of the one-year period set forth in
subsection (7) of this section.
(6) If a request for a conference is made, the department shall
notify the person of a time and place for conference and appoint a
conference officer to meet with the person for an informal discussion of
the matter. After the conference, the conference officer shall send the
determination of the issues to the person. The determination letter shall
be sent by regular mail, or by certified mail if the person given notice
has indicated a preference for transmission of the determination by
certified mail. The department shall assess any deficiency in the manner
set forth in subsection (7) of this section. If no conference is
requested and written objections are received, the department shall make
a determination of the issues considering such objections, and shall
assess any deficiency in the manner provided in subsection (7) of this
section. The failure to request or have a conference shall not affect the
rights of appeal otherwise provided by law.
(7) If neither payment nor written objection to the deficiency is
received by the department within 30 days after the notice of deficiency
has been mailed, the department shall assess the deficiency, plus
interest and penalties, if any, and shall send the person a notice of
assessment, stating the amount so assessed, and interest and penalties.
The notice of assessment shall be mailed within one year from the date of
the notice of deficiency unless an extension of time is agreed upon as
described in subsection (8) of this section. The notice shall advise the
person of the rights of appeal.
(8) If, prior to the expiration of any period of time prescribed in
subsection (7) of this section for giving of notice of assessment, the
department and the person consent in writing to the deficiency being
assessed after the expiration of such prescribed period, such deficiency
may be assessed at any time prior to the expiration of the period agreed
upon. The period so agreed upon may be extended by subsequent agreements
in writing made before the expiration of the period agreed upon.
(9) The failure to hold a requested conference within the one-year
period prescribed in subsection (5) of this section shall not invalidate
any assessment of deficiency made within the one-year period pursuant to
subsection (7) of this section or within any extension of time made
pursuant to subsection (8) of this section, but shall invalidate any
assessment of interest or penalties attributable to the deficiency. After
an assessment has been made, the department and the person assessed may
still hold a conference within 90 days from the date of assessment. If a
conference is held, the 90-day period under ORS 305.280 (2) shall run
from the date of the conference officer’s written determination of the
issues.
(10)(a) 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 failure to file the report or
return and 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.
(b) Notwithstanding subsection (14) of this section and ORS
305.280, and only to the extent allowed by rules adopted by the
department, the department may accept the filing of a report or return
submitted by a person who has been assessed a tax under paragraph (a) of
this subsection.
(c) The department may reject a report or return:
(A) That is not verified as required by ORS 305.810;
(B) That the department determines is not true and correct as to
every material matter as required by ORS 305.815; or
(C) If the department may impose a penalty under ORS 316.992 (1)
with respect to the report or return.
(d) If the department rejects a report or return of a person
assessed a tax under paragraph (a) of this subsection, the department
shall issue a notice of rejection to the person. The person may appeal
the rejection to the magistrate division of the Oregon Tax Court only if:
(A) The report or return was filed within 90 days of the date the
department’s assessment under paragraph (a) of this subsection was
issued; and
(B) The appeal is filed within 90 days of the date shown on the
notice of rejection.
(e) If the person assessed under paragraph (a) of this subsection
submits a report or return to the department and appeals the assessment
to the tax court, the department may request a stay of action from the
court pending review of the report or return. If the department:
(A) Accepts the filing of the report or return, the appeal shall be
dismissed as moot.
(B) Rejects the report or return, the stay of action on the appeal
shall be lifted.
(f) If the department accepts the filing of a report or return, the
department may reduce the assessment issued under paragraph (a) of this
subsection. A report or return filed under this subsection that is
accepted by the department, whether or not the assessment has been
reduced, shall be considered a report or return described in subsection
(1) of this section and shall be subject to the provisions of this
section, including but not limited to examination and adjustment pursuant
to subsection (2) of this section.
(g) The department may refund payments made with respect to a
report or return filed and accepted pursuant to this subsection. If the
report or return is filed within three years of the due date for filing
the report or return, excluding extensions, the refund shall be made as
provided by ORS 305.270 and 314.415. If the report or return is not filed
within three years of the due date for filing the report or return,
excluding extensions, the refund shall be limited to payments received
within the two-year period ending on the date the report or return is
received by the department and payments received after the date the
report or return is received by the department. Interest shall be paid at
the rate established under ORS 305.220 for each month or fraction of a
month from the date the report or return is received by the department to
the time the refund is made.
(11) Mailing of notice to the person at the person’s last-known
address shall constitute the giving of notice as prescribed in this
section.
(12) If a return is filed with the department accompanied by
payment of less than the amount of tax shown on or from the information
on the return as due, the difference between the tax and the amount
submitted is considered as assessed on the due date of the report or
return (determined with regard to any extension of time granted for the
filing of the return) or the date the report or return is filed,
whichever is later. For purposes of this subsection, the amount of tax
shown on or from the information on the return as due shall be reduced by
the amount of any part of the tax that is paid on or before the due date
prescribed for payment of the tax, and by any credits against the tax
that are claimed on the return. If the amount required to be shown as tax
on a return is less than the amount shown as tax on the return, this
subsection shall be applied by substituting the lesser amount.
(13) Every deficiency shall bear interest at the rate established
under ORS 305.220 for each month or fraction of a month computed from the
due date of the return to date of payment. If the return was falsely
prepared and filed with intent to evade the tax, a penalty equal to 100
percent of the deficiency shall be assessed and collected. All payments
received shall be credited first to penalty, then to interest accrued,
and then to tax due.
(14) If the deficiency is paid in full before a notice of
assessment is issued, the department is not required to send a notice of
assessment, and the tax shall be considered as assessed as of the date
which is 30 days from the date of the notice of deficiency or the date
the deficiency is paid, whichever is the later. A partial payment of the
deficiency shall constitute only a credit to the account of the person
assessed. Assessments and billings of taxes shall be final after the
expiration of the appeal period specified in ORS 305.280, except to the
extent that an appeal is allowed under ORS 305.280 (3) following payment
of the tax.
(15) Appeal may be taken to the tax court from any notice of
assessment. The provisions of this chapter with respect to appeals to the
tax court apply to any deficiency, penalty or interest assessed. [1977
c.870 §3; 1981 c.724 §3; 1982 s.s.1 c.16 §5; 1985 c.266 §4; 1987 c.512
§2; 1989 c.414 §4; 1993 c.726 §4; 1995 c.650 §27; 1995 c.780 §3; 1997
c.99 §§26,27; 1999 c.224 §1; 1999 c.249 §1; 1999 c.532 §1; 2001 c.76 §5;
2001 c.660 §21; 2005 c.94 §19](1) As a part of its application for an order for the
enforcement of a subpoena under ORS 305.190 or for an answer to
interrogatories under ORS 305.195, the Department of Revenue may request
the Oregon Tax Court for an order extending the time within which the
department may issue a notice of deficiency or assessment under ORS
305.265.
(2) The tax court or the Supreme Court upon appeal, shall extend
the time for a period ending 90 days after:
(a) Delivery to the department of the documents and information
ordered produced under the subpoena; or
(b) Delivery to the department of the answers ordered to be made to
the department’s interrogatories. [1985 c.266 §2] (1) If the
amount of the tax shown as due on a report or return originally filed
with the Department of Revenue with respect to a tax imposed under ORS
chapter 118, 308, 308A, 310, 314, 316, 317, 318 or 321, or collected
pursuant to ORS 305.620, or as corrected by the department, is less than
the amount theretofore paid, or if a person files a claim for refund of
any tax paid to the department under such laws within the period
specified in subsection (2) of this section, any excess tax paid shall be
refunded by the department with interest as provided in this section and
ORS 314.415.
(2) The claim shall be made on a form prescribed by the department,
except that an amended report or return showing a refund due and filed
within the time allowed by this subsection for the filing of a claim for
refund, shall constitute a claim for refund. The claim shall be filed
within the period specified in ORS 314.415 (2) for taxes imposed under
ORS chapters 310, 314, 316, 317 and 318, or collected pursuant to ORS
305.620 (except where any applicable ordinance specifies another period),
within the period specified in ORS 118.100 (2) for taxes imposed under
ORS chapter 118 and within two years of the payment of any tax under ORS
chapter 308, 308A or 321.
(3) Upon receipt of a claim for refund, or original report or
return claiming a refund, the department shall either refund the amount
requested or send to the claimant a notice of any proposed adjustment to
the refund claim, stating the basis upon which the adjustment is made. A
proposed adjustment may either increase or decrease the amount of the
refund claim or result in the finding of a deficiency. If the proposed
adjustment results in a determination by the department that some amount
is refundable, the department may send the claimant the adjusted amount
with the notice.
(4)(a) The notice of proposed adjustment shall be accompanied by a
statement explaining the claimant’s right to make written objections to
the refund adjustment, the claimant’s right to request a conference and
the procedure for requesting a conference. The statement, and an
accompanying form, shall also explain that conference determinations are
routinely transmitted via regular mail and that a claimant desiring to
have conference determinations transmitted by certified mail may do so by
indicating on the form the claimant’s preference for certified mail and
by returning the form with the claimant’s written objections as described
in paragraph (b) of this subsection.
(b) The claimant may, within 30 days of the date of the notice of
proposed adjustment, advise the department in writing of objections to
the refund adjustment and may request a conference with the department,
which shall be held within one year of the date of the notice. The
department shall notify the claimant of a time and place for the
conference, and appoint a conference officer to meet with the claimant
for an informal discussion of the claim. After the conference, the
conference officer shall send a determination of the matter to the
claimant. The determination letter shall be sent by regular mail, or by
certified mail if the claimant has indicated a preference for
transmission of the determination by certified mail. The department shall
issue either a notice of refund denial or payment of any amount found to
be refundable, together with any applicable interest provided by this
section. If the conference officer determines that a deficiency exists,
the department shall issue a notice of assessment.
(5) If no conference is requested, and the adjustments have not
resulted in the finding of a deficiency, the following shall apply:
(a) If written objections have been made by the claimant, the
department shall consider the objections, determine any issues raised and
send the claimant a notice of refund denial or payment of any amount
found to be refundable, together with any interest provided by this
section.
(b) If no written objections are made, the notice of any proposed
adjustment shall be final after the period for requesting a conference or
filing written objections has expired.
(6) If no conference is requested, and the notice of proposed
adjustment has asserted a deficiency, the department shall consider any
objections made by the person denied the refund, make a determination of
any issues raised, pay any refunds found due, with applicable interest,
or assess any deficiency and mail a notice thereof within one year from
the date of the notice of deficiency, unless an extension of time is
agreed upon as described in subsection (7) of this section.
(7) If, prior to the expiration of any period of time prescribed in
subsection (6) of this section for giving of notice of assessment, the
department and the person consent in writing to the deficiency being
assessed after the expiration of such prescribed period, such deficiency
may be assessed at any time prior to the expiration of the period agreed
upon. The period so agreed upon may be extended by subsequent agreements
in writing made before the expiration of the period agreed upon.
(8) If the department refunds the amount requested as provided in
subsection (3) of this section, without examination or audit of the
refund claim, the department shall give notice of this to the claimant at
the time of making the refund. Thereafter, the department shall have one
year in which to examine or audit the refund claim, and send the notice
of proposed adjustment provided for in subsection (3) of this section, in
addition to any time permitted in ORS 314.410 or 314.415.
(9) The failure to hold a requested conference within the one-year
period prescribed in subsection (4) of this section shall not invalidate
any assessment of deficiency made within the one-year period pursuant to
subsection (8) of this section or within any extension of time made
pursuant to subsection (7) of this section, but shall invalidate any
assessment of interest or penalties attributable to the deficiency. After
an assessment has been made, the department and the person assessed may
still hold a conference within 90 days from the date of assessment. If a
conference is held, the 90-day period under ORS 305.280 (2) shall run
from the date of the conference officer’s written determination of the
issues.
(10) The claimant may appeal any notice of proposed adjustment,
refund denial or notice of assessment in the manner provided in ORS
305.404 to 305.560. The failure to file written objections or to request
or have a conference shall not affect the rights of appeal so provided.
All notices and determinations shall set forth rights of appeal. [1977
c.870 §4; 1979 c.691 §1; 1985 c.61 §1; 1985 c.266 §5; 1987 c.512 §3; 1989
c.626 §2; 1991 c.67 §75; 1995 c.650 §28; 1997 c.99 §§29,30; 1999 c.224
§2; 1999 c.314 §89; 2005 c.48 §2] Except
as provided in ORS 305.690 to 305.753 (relating to charitable checkoffs),
no refund, claim of refund or right to a refund of taxes paid under the
laws of this state shall be transferable or assignable by the taxpayer
unless authorized by rule of the Department of Revenue. [1997 c.84 §5] (1) Any
person may appeal under this subsection to the magistrate division of the
Oregon Tax Court as provided in ORS 305.280 and 305.560, if all of the
following criteria are met:
(a) The person must be aggrieved by and affected by an act,
omission, order or determination of:
(A) The Department of Revenue in its administration of the revenue
and tax laws of this state;
(B) A county board of property tax appeals other than an order of
the board;
(C) A county assessor or other county official, including but not
limited to the denial of a claim for exemption, the denial of special
assessment under a special assessment statute, or the denial of a claim
for cancellation of assessment; or
(D) A tax collector.
(b) The act, omission, order or determination must affect the
property of the person making the appeal or property for which the person
making the appeal holds an interest that obligates the person to pay
taxes imposed on the property. As used in this paragraph, an interest
that obligates the person to pay taxes includes a contract, lease or
other intervening instrumentality.
(c) There is no other statutory right of appeal for the grievance.
(2) Except as otherwise provided by law, any person having a
statutory right of appeal under the revenue and tax laws of the state may
appeal to the tax court as provided in ORS 305.404 to 305.560.
(3) Subject to ORS 305.403, if a taxpayer may appeal to the board
of property tax appeals under ORS 309.100, then no appeal shall 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.
(4) A county assessor who is aggrieved by an order of the county
board of property tax appeals may appeal from the order as provided in
this section, ORS 305.280 and 305.560. [1977 c.870 §5; 1985 c.85 §10;
1987 c.512 §4; 1991 c.459 §12; 1993 c.270 §7; 1995 c.79 §107; 1995 c.650
§7; 1997 c.541 §§52,52a,53,53a; 1999 c.314 §62; 1999 c.340 §2] (1) Except as
otherwise provided in this section, an appeal under ORS 305.275 (1) or
(2) 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. An appeal under ORS 308.505 to 308.665 shall
be filed within the time prescribed under ORS 308.595. An appeal from a
supervisory order or other order or determination of the Department of
Revenue shall be filed within 90 days after the date a copy of the order
or determination or notice of the order or determination has been served
upon the appealing party by mail as provided in ORS 306.805.
(2) An appeal under ORS 323.416 or 323.623 or from any notice of
assessment or refund denial issued by the Department of Revenue with
respect to a tax imposed under ORS chapter 118, 308, 308A, 310, 314, 316,
317, 318, 321 or this chapter, or collected pursuant to ORS 305.620,
shall be filed within 90 days after the date of the notice. An appeal
from a proposed adjustment under ORS 305.270 shall be filed within 90
days after the date the notice of adjustment is final.
(3) Notwithstanding subsection (2) of this section, an appeal from
a notice of assessment of taxes imposed under ORS chapter 314, 316, 317
or 318 may be filed within two years after the date the amount of tax, as
shown on the notice and including appropriate penalties and interest, is
paid.
(4) Except as provided in subsection (2) of this section or as
specifically provided in ORS chapter 321, an appeal to the tax court
under ORS chapter 321 or from an order of a county board of property tax
appeals shall be filed within 30 days after the date of the notice of the
determination made by the department or date of mailing of the order,
date of publication of notice of the order or date of mailing of the
notice of the order to the taxpayer, whichever is applicable.
(5) If the tax court denies an appeal made pursuant to this section
on the grounds that it does not meet the requirements of this section or
ORS 305.275 or 305.560, the tax court shall issue a written decision
rejecting the petition and shall set forth in the decision the reasons
the tax court considered the appeal to be defective. [1977 c.870 §6; 1979
c.687 §1; 1985 c.61 §2; 1991 c.67 §76; 1993 c.270 §8; 1995 c.650 §8; 1997
c.99 §§32,33; 1997 c.541 §§55,56; 1999 c.249 §2; 1999 c.314 §90; 1999
c.340 §3; 2003 c.804 §63a]Whenever any property tax matter is
appealed to the Department of Revenue, Oregon Tax Court or Supreme Court,
and during the pendency of the appeal, no appeal is filed for a
subsequent year or years, the taxpayer may, on or before December 15 of
the year in which a final determination is made by the last body or
tribunal to pass on the matter or within six months of such final
determination, whichever is later, request the department to order the
officer in charge of the rolls for the intervening years to correct all
tax and assessment rolls for those years with respect to the property
affected by such final determination. The department may require a
hearing and the submission of evidence necessary to determine the
correction, if any, that should be made for each intervening year in view
of the holding in such final determination. Notwithstanding any time
limit in ORS 305.288 (1) to (6), 306.115 or 311.205, the department shall
order such correction as it deems necessary. [1977 c.870 §7; 1983 c.605
§2; 1993 c.18 §64](1) The tax court shall
order a change or correction applicable to a separate assessment of
property to the assessment and tax roll for the current tax year or for
either of the two tax years immediately preceding the current tax year,
or for any or all of those tax years, if all of the following conditions
exist:
(a) For the tax year to which the change or correction is
applicable, the property was or is used primarily as a dwelling (or is
vacant) and was and is a single-family dwelling, a multifamily dwelling
of not more than four units, a condominium unit, a manufactured structure
or a floating home.
(b) The change or correction requested is a change in value for the
property for the tax year and it is asserted in the request and
determined by the tax court that the difference between the real market
value of the property for the tax year and the real market value on the
assessment and tax roll for the tax year is equal to or greater than 20
percent.
(2) If the tax court finds that the conditions needed to order a
change or correction under subsection (1) of this section exist, the
court may order a change or correction in the maximum assessed value of
the property in addition to the change or correction in the real market
value of the property.
(3) The tax court may order a change or correction applicable to a
separate assessment of property to the assessment or tax roll for the
current tax year and for either of the two tax years immediately
preceding the current tax year if, for the year to which the change or
correction is applicable the assessor or taxpayer has no statutory right
of appeal remaining and the tax court determines that good and sufficient
cause exists for the failure by the assessor or taxpayer to pursue the
statutory right of appeal.
(4) Before ordering a change or correction to the assessment or tax
roll under subsection (3) of this section, the tax court may determine
whether any of the conditions exist in a particular case. If the tax
court determines that one of the conditions specified does exist, the tax
court shall hold a hearing to determine whether to order a change or
correction to the roll.
(5) For purposes of this section:
(a) “Current tax year” has the meaning given the term under ORS
306.115.
(b) “Good and sufficient cause”:
(A) Means an extraordinary circumstance that is beyond the control
of the taxpayer, or the taxpayer’s agent or representative, and that
causes the taxpayer, agent or representative to fail to pursue the
statutory right of appeal; and
(B) Does not include inadvertence, oversight, lack of knowledge,
hardship or reliance on misleading information provided by any person
except an authorized tax official providing the relevant misleading
information.
(6) The remedy provided under this section is in addition to all
other remedies provided by law.
(7) As used in subsections (1) to (6) of this section,
“manufactured structure” has the meaning given that term in ORS 446.561.
[Formerly 306.116; 1999 c.767 §1; subsection (7) of 2005 Edition enacted
as 2003 c.655 §47a]
If the Department of Revenue is prohibited from making an assessment in a
case under title 11 of the United States Code, the period for making the
assessment shall not expire until one year after the prohibition is
terminated. [1985 c.761 §12] (1)
Notwithstanding ORS 305.265 (14), the Department of Revenue may in its
discretion, cancel any tax, penalty or interest or any portion thereof,
for which an assessment has become final, if any of the following
conditions exist:
(a) The assessment is based upon an asserted tax deficiency
calculated upon income that the state is expressly prohibited from taxing
under the Oregon Constitution or the laws of the United States.
(b) The assessment is based upon an asserted tax deficiency arising
from an error made by the department when reviewing the return during
processing, and the information necessary to correct the error was
properly reported in the return as filed as determined by the department.
(c) The assessment is against an employer for withholding tax, with
respect to any full calendar quarter during which the employer had no
payroll and had permanently ceased doing business. An employer shall not
be considered to have ceased doing business if the employer has changed
its name and the business activity continues under the same beneficial
ownership.
(d) Pursuant to rules adopted by the department, the department
determines that:
(A) Reasonable doubt exists as to the taxpayer’s liability for the
assessment;
(B) The taxpayer has presented documentation that the department
considers sufficient to support canceling the tax, penalty or interest,
or any portion thereof; and
(C) The taxpayer has complied with all applicable reporting and
filing requirements for all tax years for which the department maintains
records.
(2) When taxes are canceled, in whole or in part, under subsection
(1) of this section, the department shall make an order canceling the
tax, penalties and interest. The order shall be filed in the records of
the department. Upon making the order, the department also shall cause to
be canceled or released any lien of record in the counties which may have
been filed and entered therein.
(3) Before the department may cancel an assessment under subsection
(1) of this section, the taxpayer to whom the assessment is issued shall
provide any information the department deems necessary to verify the
existence of one of the conditions under which the assessment may be
canceled.
(4) Notwithstanding ORS 314.415, the department may refund any
payments made with respect to an assessment described in subsection (1)
of this section. Interest shall be paid at the rate established under ORS
305.220, for each month or fraction of a month during a period beginning
on the date the taxpayer requests the refund.
(5) This section applies to any unpaid assessment described in
subsection (1) of this section whether issued before or after September
27, 1987, and to any assessment for which payment is made on or after
September 27, 1987.
(6) A taxpayer may appeal denial of a request for cancellation of
assessment or refund to the Director of the Department of Revenue. The
decision of the director is final and may not be appealed. [1987 c.758
§16; 1997 c.100 §1](1) As used in this
section, “appeal” means an appeal to the Internal Revenue Service or any
federal court or an appeal to another state’s taxing authority or any
state court having jurisdiction over the other state’s tax matters that
are the subject of the appeal.
(2) If a deficiency is based wholly or in part upon an Internal
Revenue Service revenue agent’s report made upon any audit or adjustment
of the person’s federal income tax return or upon an audit report of
another state’s taxing authority, the following procedures shall apply:
(a) If the person has filed a timely appeal from the deficiency
asserted by the service or other state taxing authority, the person may
file proof of the appeal with the Department of Revenue. If proof of the
appeal is received before the tax is assessed, the deficiency shall be
assessed without penalty for failure to pay the tax at the time the tax
became due.
(b) If the department assesses the deficiency before receipt of
proof of the filing of a timely appeal, the person may file the proof
with the department. If the proof is filed after the tax has been
assessed with a penalty for failure to pay the tax at the time the tax
became due, the penalty shall not be waived.
(3) Notwithstanding any other provision of law, filing of proof of
a timely appeal under subsection (2) of this section shall extend the
time for filing a complaint or petition with the tax court in accordance
with this subsection. The person shall notify the department in writing
within 30 days after the appeal is finally resolved. The department shall
review the issues raised by the appeal and shall make a determination of
the effect upon the person’s state income or excise tax liabilities. The
department shall then issue a refund, notice of denial of refund or
notice of assessment, as appropriate, to the person. If the person
disagrees with the department’s action, the person may file a complaint
or petition with the tax court within 90 days after the date of the
department’s action as provided under ORS 305.404 to 305.560.
Notwithstanding ORS 314.835 or any other law relating to confidentiality,
the department may notify the magistrate division of the tax court if
proof of a timely appeal is filed with the department or if the
department determines that an appeal has been finally resolved.
(4) Except as provided in ORS 314.440 (2), when the department
receives proof of a timely appeal, the department shall suspend action to
collect the deficiency until the issues are resolved.
(5) If interest imposed by the federal government on a federal
deficiency or partnership settlement agreement has been suspended under
section 6601(c) of the Internal Revenue Code, interest imposed on a
corresponding deficiency determined under ORS 305.265 and this section
shall also be suspended. The suspension of interest imposed under ORS
305.265 shall be effective as of the date the federal interest is
suspended and for the duration for which the federal interest is
suspended.
(6) Except as provided in ORS 314.415 (6), the provisions of this
section shall constitute the exclusive remedy of a person whose notice of
deficiency is based wholly or in part upon a federal revenue agent’s
report or the audit report of another state’s taxing authority. [1989
c.414 §6; 1995 c.650 §29; 1997 c.325 §7; 1999 c.74 §2; 1999 c.90 §28a;
2001 c.660 §17; 2005 c.48 §3] The amount of
any penalty collected under this chapter and ORS chapter 314 or 316 shall
be paid over to the State Treasurer in the manner provided for income
taxes in ORS 316.502. Any penalty amount required to be refunded may be
paid out of the working balance retained under ORS 316.502 (2) or may be
paid in the manner provided in ORS 305.760. [1987 c.843 §5](License Lists)(1) Upon request of the Department of Revenue, an
agency issuing or renewing a license to conduct a business, trade or
profession shall annually, on or before March 1, supply the department
with a list of specified licenses issued or renewed by the agency during
the preceding calendar year.
(2) Upon request of the department, an agency shall annually, on or
before March 1, supply the department with a list of specified persons
contracting with the agency to provide goods, services or real estate
space to the agency during the preceding calendar year.
(3) The lists required by subsections (1) and (2) of this section
shall contain the name, address, Social Security or federal employer
identification number of each licensee or provider or such other
information as the department may by rule require.
(4)(a) If the department determines that any licensee or provider
has neglected or refused to file any return or to pay any tax and that
such person has not filed in good faith a petition before the department
contesting the tax, and the department has been unable to obtain payment
of the tax through other methods of collection, the Director of the
Department of Revenue may, notwithstanding ORS 118.525, 314.835 or
314.840 or any similar provision of law, notify the agency and the person
in writing.
(b) Upon receipt of such notice, the agency shall refuse to
reissue, renew or extend any license, contract or agreement until the
agency receives a certificate issued by the department that the person is
in good standing with respect to any returns due and taxes payable to the
department as of the date of the certificate.
(c) Upon the written request of the director and after a hearing
and notice to the licensee as required under any applicable provision of
law, the agency shall suspend the person’s license if the agency finds
that the returns and taxes have not been filed or paid and that the
licensee has not filed in good faith a petition before the department
contesting the tax and the department has been unable to obtain payment
of the tax through other methods of collection. For the purpose of the
agency’s findings, the written representation to that effect by the
department to the agency shall constitute prima facie evidence of the
person’s failure to file returns or pay the tax. The department shall
have the right to intervene in any license suspension proceeding.
(d) Any license suspended under this subsection shall not be
reissued or renewed until the agency receives a certificate issued by the
department that the licensee is in good standing with respect to any
returns due and taxes payable to the department as of the date of the
certificate.
(5) The department may enter into an installment payment agreement
with a licensee or provider with respect to any unpaid tax, penalty and
interest. The agreement shall provide for interest on the outstanding
amount at the rate prescribed by ORS 305.220. The department may issue a
provisional certificate of good standing pursuant to subsection (4)(b)
and (d) of this section which shall remain in effect so long as the
licensee or provider fully complies with the terms of the installment
agreement. Failure by the licensee or provider to fully comply with the
terms of the installment agreement shall render the agreement and the
provisional certificate of good standing null and void, unless the
department determines that the failure was due to reasonable cause. If
the department determines that the failure was not due to reasonable
cause, the total amount of the tax, penalty and interest shall be
immediately due and payable, and the department shall notify any affected
agency that the licensee or provider is not in good standing. The agency
shall then take appropriate action under subsection (4)(b) and (d) of
this section.
(6) No contract or other agreement for the purpose of providing
goods, services or real estate space to any agency shall be entered into,
renewed or extended with any person, unless the person certifies in
writing, under penalty of perjury, that the person is, to the best of the
person’s knowledge, not in violation of any tax laws described in ORS
305.380 (4).
(7) The certification under subsection (6) of this section shall be
required for each contract and renewal or extension of a contract or may
be provided on an annual basis. A certification shall not be required for
a contract if the consideration for the goods, services or real estate
space provided under the contract is no more than $1,000.
(8)(a) The requirements of the certification under subsection (6)
of this section shall be subject to the rules adopted by the department
in accordance with this section.
(b) The department may by rule exempt certain contracts from the
requirements of subsection (6) of this section. [1987 c.843 §7; 1989
c.656 §1; 1997 c.99 §36]SUBPOENAS RELATING TO INDUSTRIAL PROPERTYA
subpoena for the production of records may be issued under ORS 305.190 or
305.420 to the owner of an industrial plant, as defined in ORS 308.408,
for purposes of a proceeding involving the determination of the value of
a different industrial plant for ad valorem property taxation, only under
the following conditions:
(1) The information to be produced is to be used to determine the
value of a specific industrial plant;
(2) The information to be produced is not available to the person
or agency issuing the subpoena from any public source; and
(3) The information to be produced is likely to improve the
accuracy or reliability of the determination of value. [1993 c.353 §4] (1)
This section applies to subpoenas issued under ORS 305.190 or 305.420 (4)
to owners of industrial plants, as defined in ORS 308.408, for the
production of books, papers, correspondence or any other documents to be
used in a judicial proceeding that involves the determination of the
value of a different industrial plant, for purposes of ad valorem
property taxation. The purpose of this section is to provide a process by
which the parties may limit the scope of a subpoena for the production of
documents, if possible.
(2) Before any person or the Department of Revenue may issue a
subpoena to which this section applies, the person or department shall
give written notice to the person or agency to be subpoenaed that a
subpoena will be issued no sooner than 60 days after the date the notice
is received. The notice shall state the general nature of the documents
desired to be produced and the purpose for which they will be used. The
notice shall state that the person or agency to be subpoenaed may request
an informal meeting with the person or department giving notice to
identify the nature and form of documents the person or agency has and to
verify the need for the documents desired to be produced.
(3) If the person or agency receiving a notice given under
subsection (2) of this section requests an informal meeting as provided
in the notice, the person or department giving notice shall meet with the
person or agency before issuing the subpoena. If the parties can agree
that only specific documents need to be produced, the subpoena may then
be issued and shall be limited to those documents.
(4) If the person or agency receiving a notice under subsection (2)
of this section does not request a meeting, or if the parties cannot
agree on the specific documents to be produced, the person or department
giving notice may issue the subpoena on or after the date specified in
the notice.
(5) A person or agency given notice under subsection (2) of this
section may not seek relief from compliance with a subpoena or for
protection of documents to be produced until a subpoena has been issued.
[1993 c.353 §7; 1995 c.650 §84; 2005 c.345 §5](1) If the owner of an industrial plant
that is located outside this state is given notice under ORS 305.392, or
is served with a subpoena for purposes of appraisal of an industrial
plant located within this state, the owner may choose not to produce any
documents related to the income or expenses of the industrial plant that
are identified in the notice or the subpoena, if that information is
described in ORS 308.411 (8) as exempt from disclosure for an owner
electing under ORS 308.411 (2).
(2) As used in this section, “industrial plant” has the meaning
given in ORS 308.408. [1993 c.353 §9](1) When the Department of Revenue or
any person has obtained information concerning industrial property by
subpoena issued under ORS 305.190 or 305.420, and the provider of the
information has designated the information as confidential, the
confidentiality of the information shall be protected as provided in this
section.
(2) If the department or any person in possession of information
described in subsection (1) of this section intends to use that
information in a judicial proceeding, the court shall close the
proceedings to anyone other than representatives of the parties to the
proceeding at any time the confidential information is presented as
evidence. The court shall limit the disclosure of the information to
representatives of the parties to the proceeding as provided in ORS
305.398. The court also shall seal those parts of the record of the
proceeding that contain confidential information. This subsection shall
apply to proceedings on appeal from the court proceeding. [1993 c.353
§10; 1995 c.650 §85](1) When the Department of
Revenue or any person has obtained information concerning industrial
property by subpoena issued under ORS 305.190 or 305.420, for use in a
judicial proceeding concerning the value of a different industrial
property, and the provider of the information has designated the
information as confidential, access to that information shall be limited
by an order of the judicial body conducting the proceeding. The order
shall specify the allowable uses of the confidential information and
establish the conditions under which disclosure may be made to those
individuals described in this section.
(2) The confidential information may be disclosed to the following
individuals only:
(a) Counsel for the Department of Revenue.
(b) Counsel of record for any party participating in the proceeding
in which the information is to be used.
(c) Employees of the Department of Revenue who are assigned to
perform an appraisal using the confidential information.
(d) Those experts or consultants for any party participating in the
proceeding who are not, have not previously been and are not anticipated
to become directors, officers, employees or business associates of the
party, and who have been retained to provide technical advice or
testimony in the proceeding.
(3) Before disclosure of information described in this section,
each individual to whom disclosure of confidential information will be
made shall execute a written acknowledgment of the confidential nature of
the information and consent to be bound by the terms of the order of
confidentiality, subject to judicial penalties for contempt. Such an
acknowledgment shall be executed by any person to whom access to
confidential information is actually given.
(4) A written record shall be maintained by the Department of
Revenue and any party to whom disclosure is made of the specific material
disclosed and the identity of those individuals to whom access has been
given, including the name and title of the individuals and the date each
was approved to be given access.
(5) The documents, and any copies of them, shall be marked
“confidential” or in some way identified to be subject to limited access.
Any copies of the original documents shall be reproduced in a way that
makes them readily identifiable.
(6) At the conclusion of the proceeding, all documents subject to
the provisions of this section shall be returned to the person or agency
that originally produced them. Any copies, abstracts or summaries of the
information shall be destroyed, and their destruction shall be verified
by the party or agency that made the copies. [1993 c.353 §11; 1995 c.650
§86](1) Any agency or person issuing a subpoena under ORS 305.190 or
305.420 for information concerning industrial property, shall pay the
reasonable costs of compliance with the subpoena incurred by the party
responding to the subpoena.
(2) Reasonable costs include the cost of locating records,
preparing copies of records, costs of postage, freight or delivery, the
cost of materials used to organize or contain records and the cost of
management review of material to be produced to determine compliance with
the subpoena.
(3) Reasonable costs do not include the cost of duplicating records
for the use of the person producing the records or legal fees or
management costs incurred in resisting compliance with a subpoena. [1993
c.353 §12]APPEALS OF INDUSTRIAL PROPERTY OR PLANTS(1) In the case of a taxpayer dissatisfied with the
assessed or specially assessed value of land or improvements of a
principal or secondary industrial property, the taxpayer may elect to
proceed directly to the tax court. An appeal involving the assessed or
specially assessed value of both the land and improvements of a principal
or secondary industrial property must be brought together in the same
forum, whether the forum is the board of property tax appeals or the tax
court.
(2) Election shall be made by filing a complaint with the tax court
in the manner as other complaints are filed under ORS 305.560 within the
time otherwise prescribed for filing an appeal to the board of property
tax appeals. An election under this subsection may not be revoked and the
taxpayer shall have no further right of appeal to the county board of
property tax appeals.
(3)(a) The complaint shall be entitled in the name of the person
filing the complaint as plaintiff, and the Department of Revenue and the
county assessor as defendants. In answering and defending against the
allegations of the complaint:
(A) The department shall respond only to those allegations that
relate to the appraisal or assessment performed by the department; and
(B) The county assessor shall respond only to those allegations
that relate to the appraisal or assessment performed by the county
assessor.
(b) The department and the county assessor shall both remain
parties to a proceeding described in this subsection unless either party
is dismissed by order of the court.
(4) Service of the complaint upon the department and the county
assessor shall be accomplished by the clerk of the tax court mailing a
copy of the complaint to the Director of the Department of Revenue and to
the county assessor.
(5) Upon an appeal directly to the tax court under this section,
the county board of property tax appeals shall dismiss any appeal filed
with the board involving the issue of assessed value or specially
assessed value for the same property for the same tax year.
(6) As used in this section, “principal industrial property” and
“secondary industrial property” have the meanings given the terms under
ORS 306.126 and include those properties appraised by the department for
ad valorem property tax purposes. [1995 c.650 §82; 1997 c.541 §58; 2005
c.225 §2; 2005 c.345 §15]OREGON TAX COURT(General) Unless the context
requires otherwise, as used in ORS 305.404 to 305.560 and other revenue
and tax laws, “tax court” or “Oregon Tax Court” means the Oregon Tax
Court created under ORS 305.405. In an appropriate case, “tax court” may
include either the regular division or the magistrate division of the
Oregon Tax Court, or both, or the judge or judges of the tax court or its
magistrates or a combination. In a few instances, “tax court” may include
the tax court clerk or other employees of the regular or magistrate
division of the tax court. [1995 c.650 §104] As part of the
judicial branch of state government, there is created a court of justice
to be known as the Oregon Tax Court. The tax court, in cases within its
jurisdiction pursuant to ORS 305.410:
(1) Is a court of record and of general jurisdiction, not limited,
special or inferior jurisdiction.
(2) Has the same powers as a circuit court.
(3) Has and may exercise all ordinary and extraordinary legal,
equitable and provisional remedies available in the circuit courts, as
well as such additional remedies as may be assigned to it. [1961 c.533
§1; 1965 c.6 §1](1)
Subject only to the provisions of ORS 305.445 relating to judicial review
by the Supreme Court and to subsection (2) of this section, the tax court
shall be the sole, exclusive and final judicial authority for the hearing
and determination of all questions of law and fact arising under the tax
laws of this state. For the purposes of this section, and except to the
extent that they preclude the imposition of other taxes, the following
are not tax laws of this state:
(a) ORS chapter 577 relating to Oregon Beef Council contributions.
(b) ORS 576.051 to 576.455 relating to commodity commission
assessments.
(c) ORS chapter 477 relating to fire protection assessments.
(d) ORS chapters 731, 732, 733, 734, 737, 742, 743, 744, 746, 748
and 750 relating to insurance company fees and taxes.
(e) ORS chapter 473 relating to liquor taxes.
(f) ORS chapter 583 relating to milk marketing, production or
distribution fees.
(g) ORS chapter 825 relating to motor carrier taxes.
(h) ORS chapter 319 relating to motor vehicle and aircraft fuel
taxes.
(i) ORS title 59 relating to motor vehicle and motor vehicle
operators’ license fees and ORS title 39 relating to boat licenses.
(j) ORS chapter 578 relating to Oregon Wheat Commission assessments.
(k) ORS chapter 462 relating to racing taxes.
(L) ORS chapter 657 relating to unemployment insurance taxes.
(m) ORS chapter 656 relating to workers’ compensation
contributions, assessments or fees.
(n) ORS 311.420, 311.425, 311.455, 311.650, 311.655 and ORS chapter
312 relating to foreclosure of real and personal property tax liens.
(2) The tax court and the circuit courts shall have concurrent
jurisdiction to try actions or suits to determine:
(a) The priority of property tax liens in relation to other liens.
(b) The validity of any deed, conveyance, transfer or assignment of
real or personal property under ORS 95.060 and 95.070 (1983 Replacement
Part) or 95.200 to 95.310 where the Department of Revenue has or claims a
lien or other interest in the property.
(3) Subject only to the provisions of ORS 305.445 relating to
judicial review by the Supreme Court, the tax court shall be the sole,
exclusive and final judicial authority for the hearing and determination
of all questions of law and fact concerning the authorized uses of the
proceeds of bonded indebtedness described in section 11 (11)(d), Article
XI of the Oregon Constitution.
(4) Except as permitted under section 2, amended Article VII,
Oregon Constitution, this section and ORS 305.445, no person shall
contest, in any action, suit or proceeding in the circuit court or any
other court, any matter within the jurisdiction of the tax court. [1961
c.533 §12; 1965 c.6 §2; 1967 c.359 §688; 1969 c.48 §1; 1971 c.567 §14;
1975 c.365 §1; 1977 c.407 §1; 1985 c.149 §5; 1985 c.664 §18; 2003 c.195
§18; 2003 c.604 §100] When the determination of
real market value or the correct valuation of any property subject to
special assessment is an issue before the tax court, the court has
jurisdiction to determine the real market value or correct valuation on
the basis of the evidence before the court, without regard to the values
pleaded by the parties. [2005 c.224 §2]Note: Section 3, chapter 224, Oregon Laws 2005, provides:
Sec. 3. Section 2 of this 2005 Act [305.412] applies to any appeal
filed in the tax court on or after the effective date of this 2005 Act
[January 1, 2006] and to any appeal pending in the tax court on the
effective date of this 2005 Act. [2005 c.224 §3]Note: 305.412 was added to and made a part of 305.404 to 305.560 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation. Except as otherwise provided
in ORS 305.404 to 305.560, the mailing by registered or certified mail of
any pleading, decision, order, notice or process, other than a subpoena,
in respect to proceedings before the court shall be sufficient service
thereof. [1961 c.533 §25] Any complaint
required by law to be filed with the Oregon Tax Court that is:
(1) Transmitted through the United States mail, shall be deemed
filed (a) on the date shown by the post-office cancellation mark stamped
upon the envelope containing it, or (b) on the date it was mailed if
there is also mailed to the tax court a declaration of mailing, signed by
the appealing party or the attorney of the appealing party and verified
by oath or affirmation, subject to penalties for false swearing, in
substantially the following form:
___________________________________________________________________________
___DECLARATION OF MAILING I hereby declare under the penalties for false swearing
contained in ORS chapter 162 that on the ______ day of______, 2__, I
deposited a complaint entitled______, and dated______, in a sealed
envelope, with postage prepaid, in the United States Post Office
at____________, Oregon
(or other state of mailing), addressed to the Oregon Tax Court, 1163
State Street, Salem, Oregon
97301-2563 (or current address).
(Signature of appealing
party or the attorney
of the appealing party)
___________________________________________________________________________
___
(2) Lost in transmission through the United States mail, shall be
deemed filed on the date it was mailed if the appealing party:
(a) Can establish by competent evidence satisfactory to the tax
court that the complaint was deposited on or before the date due for
filing in the United States mail and addressed correctly to the court; and
(b) Files with the court a duplicate of the lost complaint within
30 days after written notification is given by the court of its failure
to receive such complaint, but in no event later than 90 days after the
date the complaint was otherwise required to be filed under ORS 305.560.
[1975 c.381 §2; 1979 c.689 §3; 1993 c.612 §3; 2005 c.225 §3](1) Except as provided in subsection (3) of
this section, in any appeal from an order, act, omission or determination
of the Department of Revenue involving a deficiency of taxes imposed upon
or measured by net income, the tax assessed, and all penalties and
interest due, shall be paid to the department on or before the filing of
a complaint with the regular division of the Oregon Tax Court under ORS
305.560 or before a complaint specially designated for hearing in the
regular division under ORS 305.501 is heard. The complaint shall be filed
as a claim for refund.
(2) Penalty and interest due under subsection (1) of this section
are the amounts stated in the order, notice of assessment, notice of
refund denial or proposed adjustment under ORS 305.270 by the department
from which the appeal is taken.
(3) Where payment of the tax, penalties and interest would be an
undue hardship, plaintiff may file an affidavit alleging undue hardship
with the complaint. If the tax court finds undue hardship, the tax court
judge may stay all or any part of the payment of tax, penalty and
interest required under subsection (1) of this section. If the tax court
judge finds no undue hardship, the tax court judge may grant the
plaintiff up to 30 days from the date of determination to pay the taxes,
penalties and interest. Failure by the plaintiff to pay the taxes,
penalties and interest or to establish undue hardship will be cause for
dismissing the complaint.
(4) If, in any appeal to the Oregon Tax Court for which payment of
tax, penalty and interest assessed is required before filing of a
complaint, the tax court orders that all or any part of the amount paid
be refunded by the department, the amount so ordered to be refunded shall
bear interest at the rate established for refunds in ORS 305.220.
Interest shall be computed from the date of payment to the department.
[1982 s.s.1 c.29 §§2, 3; 1985 c.407 §1; 1995 c.650 §17; 1997 c.872 §19](1) The judge, a magistrate or the clerk of the tax court,
on the request of any party to the proceeding, or the attorney of the
party, shall issue subpoenas requiring the attendance of and the giving
of testimony by witnesses, and subpoenas duces tecum requiring the
production of any returns, books, papers, documents, correspondence and
other evidence pertaining to the matter under inquiry at any designated
place of hearing in the manner prescribed by law in civil actions in
courts of this state.
(2) Any employee of the court designated in writing for the purpose
by the judge may administer oaths.
(3) Any party to the proceeding may cause the depositions of
witnesses residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in courts of this
state. To that end, the party may compel the attendance of witnesses and
the production of returns, books, papers, documents, correspondence and
other evidence pertaining to the matter under inquiry.
(4) Subject to ORS 305.390 and 305.392, subpoenas in a proceeding
involving the determination of the value of an industrial plant, as
defined in ORS 308.408, for purposes of ad valorem property taxation, may
be issued as provided in subsection (1) of this section. However, upon
petition of the person subpoenaed, the court shall make an order
determining if the evidence sought by the subpoena is relevant to the
pending proceeding and, if requested by the person subpoenaed, an order
as required in the interests of justice to protect the confidentiality of
the information subpoenaed. [1961 c.533 §17; 1963 c.304 §1; 1981 c.139
§5; 1993 c.353 §6; 1995 c.650 §18; 2003 c.46 §5; 2005 c.345 §6]If a penalty under ORS 308.295 or 308.296 for the failure to
timely file a real, combined or personal property return as required by
ORS 308.290 is the subject of an appeal to the tax court, the court may
waive the liability for all or a portion of the penalty upon a proper
showing of good and sufficient cause. [2001 c.303 §5](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.
(2) If a statute provides for an appeal to or a review by the court
of an order, act, omission or determination of the Department of Revenue,
a board of property tax appeals or of any other administrative agency,
the proceeding shall be an original proceeding in the nature of a suit in
equity to set aside such order or determination or correct the act or
omission. The time within which the statute provides that the proceeding
shall be brought is a period of limitations and is not jurisdictional.
(3) All hearings and proceedings before the tax court judge shall
be in accordance with the rules of practice and procedure promulgated by
the court, which shall conform, as far as practical to the rules of
equity practice and procedure in this state. [1961 c.533 §16; 1965 c.6
§3; 1967 c.78 §9; 1973 c.484 §7; 1977 c.870 §29; 1981 s.s. c.1 §23; 1995
c.650 §19; 1997 c.541 §60] In all
proceedings before the judge or a magistrate of the tax court and upon
appeal therefrom, a preponderance of the evidence shall suffice to
sustain the burden of proof. The burden of proof shall fall upon the
party seeking affirmative relief and the burden of going forward with the
evidence shall shift as in other civil litigation. [1965 c.6 §5; 1995
c.650 §20](1) Except as provided in
subsections (2) and (3) of this section, hearings before the judge or a
magistrate of the tax court shall be open to the public. All proceedings
in the regular division of the tax court shall be reported unless waived
by the parties with the consent of the court. The expense of reporting
shall be paid by the state from the appropriation for the court.
Proceedings before the magistrate division shall not be reported.
(2) If information is confidential under ORS 308.411 (4) or by
court order under ORS 305.420 (4), and is introduced into evidence in any
hearing before the tax court, the court first shall make such order or
orders as are necessary to protect the confidentiality of the information.
(3) In any proceeding before a magistrate or before the tax court
judge in which confidential business records, tax returns or documents
containing trade secrets are to be introduced into evidence, upon motion
of a party to the proceeding, the magistrate or judge may make such
protective orders as may be necessary to protect the confidentiality of
such records or the information contained therein. In determining whether
such protective orders should be issued, the court shall weigh the harm
suffered by the disclosing party against any benefit received by the
public as a result of the disclosure. Complaints, pleadings and other
filings containing confidential business record information, tax return
information or trade secret information shall be subject to the
provisions of this subsection.
(4) In a matter involving a request for a protective order under
subsections (2) and (3) of this section, the decision of the judge or a
magistrate of the tax court shall be a final order for purposes of appeal
to the Supreme Court. The parties may appeal the issue of the protective
order to the Supreme Court at any time after the protective order was
granted or denied. Upon appeal to the Supreme Court, the judge or a
magistrate of the tax court may stay the case on the merits until a
resolution of the protective order issue is determined by the Supreme
Court. [1961 c.533 §19; 1981 c.139 §9; 1981 c.727 §2; 1989 c.760 §1; 1995
c.650 §21; 2005 c.345 §7](1) Whenever it appears to the Oregon Tax Court that proceedings
before it have been instituted or maintained by a taxpayer primarily for
delay or that the taxpayer’s position in such proceeding is frivolous or
groundless, damages in an amount not to exceed $5,000 shall be awarded to
the Department of Revenue by the Oregon Tax Court in its judgment.
Damages so awarded shall be paid within 10 days after the judgment
becomes final. If the damages remain unpaid, the department may collect
the amount awarded in the same manner as income taxes are collected under
ORS 314.430.
(2) As used in this section, a taxpayer’s position is “frivolous”
if there was no objectively reasonable basis for asserting the position.
[1987 c.843 §4; 1995 c.650 §6a](1) The decision of the court shall be binding
upon all parties until changed, if at all, by the decision of the Supreme
Court upon appeal. If no appeal is taken to the Supreme Court, the
decision of the court shall constitute a final determination of the
matter. If an appeal is taken, the decision of the court shall become
final in the same manner as the decision or judgment of the circuit court
becomes final when appeal therefrom is taken to the Supreme Court.
(2) Upon the final determination of any ad valorem tax matter, all
officers having charge of the rolls on which the assessments involved in
such proceeding appears shall correct the same in accordance with such
determination, and taxes shall be refunded as provided in ORS 311.806 or
additional taxes collected by the proper officers. In the case of an
appeal as to properties assessed or taxed under ORS 308.505 to 308.665 or
308.805 to 308.820, a certified copy of the judgment of the court shall
be sufficient warrant for the apportionment, levying and collecting of
taxes against the property constituting the subject matter of the appeal
and upon the valuation determined by the court. If any reapportionment as
between counties is made by the court on appeal, corresponding
adjustments shall be made by the tax collectors of the counties affected.
[1961 c.533 §21; 1971 c.567 §15; 1977 c.870 §31; 1983 c.696 §9; 1985 c.85
§11; 1997 c.154 §26; 2003 c.576 §412]The sole and exclusive remedy for review of any decision or order
of the judge of the tax court shall be by appeal to the Supreme Court.
Jurisdiction hereby is vested in the Supreme Court to hear and determine
all appeals from final decisions and final orders of the judge of the tax
court. The scope of the review of either a decision or order of the tax
court judge shall be limited to errors or questions of law or lack of
substantial evidence in the record to support the tax court’s decision or
order. Such appeals, and the review of final decisions and final orders
of the tax court, shall be in accordance with the procedure in actions at
law on appeal from a circuit court, but without regard to the sum
involved. Upon such appeal and review, the Supreme Court shall have power
to affirm, modify or reverse the order or decision of the tax court
appealed from, with or without remanding the case for further hearing, as
justice may require. [1961 c.533 §22; 1995 c.650 §25]If, in an appeal under ORS 305.445 involving
taxes upon or measured by net income in which an individual taxpayer is a
party, the court grants the refund claimed by the taxpayer or denies the
additional assessment of taxes claimed by the Department of Revenue to be
due from the taxpayer, the court may allow the taxpayer:
(1) Reasonable attorney fees for the appeal under ORS 305.445 and
for any prior proceeding in the matter before the tax court; and
(2) Reasonable expenses as determined by the court in addition to
costs and disbursements. Expenses include accountant fees and fees for
other experts incurred by the taxpayer in preparing for and conducting
the appeal under this section and any prior proceeding in the matter
before the tax court. [1971 c.265 §3; 1977 c.870 §31a; 1995 c.650 §26;
1997 c.99 §§37,38] The tax court shall
cause a copy of each of its written decisions to be delivered to the
State Court Administrator. The administrator, after consultation with the
judge of the tax court, shall determine whether a decision is of general
public interest. The decisions determined to be of general public
interest shall be published and distributed as provided in ORS 2.150.
Bound volumes of reports of decisions constitute the official reports of
the tax court. [1961 c.533 §23; 1963 c.250 §1; 1967 c.96 §1; 1967 c.398
§2; subsection (4) enacted as 1967 c.398 §9 (3); 1975 c.37 §2; 1977 c.145
§1; 1979 c.876 §3; 1982 s.s.1 c.7 §2](1) The judge of the tax court shall be
elected by the electors of the state for a term of six years, in the
manner provided in ORS chapter 249.
(2) In the event of a vacancy in the office of judge, the vacancy
shall be filled by an appointment made by the Governor. The Governor may
request the governors of the Oregon State Bar to submit to the Governor
the names of five or more eligible persons deemed by them to be
particularly experienced in the field of tax law, as an aid to the
Governor in making the appointment. [1961 c.533 §§2,3(2); 1979 c.190 §412](1) The judge of the tax court
shall be a citizen of the United States and of this state, and shall have
been admitted to practice in the Supreme Court of Oregon and have been
engaged in this state for at least three years preceding the election or
appointment of the judge of the tax court, either in active practice,
governmental or private, as an attorney and counselor at law or in the
discharge of the duties of a judicial or quasi-judicial office.
(2) Notwithstanding the provision of any other law, the provisions
of ORS 14.250 relating to the disqualification of a judge for prejudice
shall not be applicable to any judge serving regularly or temporarily as
a judge of the tax court. [1961 c.533 §3(1),(8); 2003 c.518 §10](1) The judge of the tax court shall receive such salary as
is provided by law. The presiding magistrate and magistrates of the tax
court shall receive such salary as is fixed under the personnel plan
established by the Chief Justice of the Supreme Court pursuant to ORS
1.008. The judge and magistrates shall receive no other allowances for
services except as authorized by this section.
(2) When the judge or a magistrate of the tax court holds court or
performs any other official function away from the state capital, hotel
bills and traveling expenses necessarily incurred by the judge or
magistrate in the performance of that duty shall be paid by the state.
Such expenses are to be paid upon the certificate of the judge or
magistrate to the truth of an itemized statement of the expenses. The
certificate of expenses is a sufficient voucher upon which the claim
shall be paid as provided in ORS 293.295 to 293.462. The Oregon
Department of Administrative Services shall draw a warrant upon the State
Treasurer for the amount thereof in favor of the tax court judge or
magistrate.
(3) The judge of the Oregon Tax Court shall be subject to the
provisions of ORS 1.310 and 238.505 relating to disability and retirement
to the same extent and in the same manner as a judge of a circuit court.
A tax court magistrate shall be subject to the provisions of law relating
to retirement for disability and retirement applicable to a state officer
or employee. [1961 c.533 §§4,5; 1977 c.896 §9; 1983 c.740 §85; 1991 c.815
§10; 1995 c.650 §4] Whenever more than one judge is
serving as a judge of the tax court, the judge elected or appointed under
ORS 305.452 shall be the presiding judge. The presiding judge shall
assign causes, matters and proceedings and apportion the business of the
tax court. [1961 c.533 §7; 1981 s.s. c.1 §24] The principal
office of the tax court shall be in the state capital, but the court may
hold hearings in any county seat designated under ORS 1.085 (2). The
county court or board of county commissioners, upon request of the judge
of the tax court, shall provide the court with suitable rooms at the
county seat when hearings are held in the county seat. [1961 c.533 §9;
1969 c.706 §64d; 1983 c.763 §8](1) The State
Court Administrator shall act as court administrator for the tax court.
Other necessary employees of the court shall be appointed and otherwise
governed by applicable provisions of the personnel plan for employees of
the courts of this state who are state employees.
(2) The judge and employees of the court shall be reimbursed for
all actual and necessary expenses as provided by law.
(3) No employee of the court shall act as attorney, counselor or
accountant in the matter of any tax imposed or levied by this state or
any of its political subdivisions.
(4) Subject to the applicable provisions of a personnel plan
established by the Chief Justice of the Supreme Court of Oregon, the
judge of the tax court shall appoint a person to serve as tax court
clerk. The tax court clerk shall:
(a) Keep the seal of the tax court and affix it in all cases
required by law.
(b) Record the proceedings of the court.
(c) Keep the records, files, books and papers pertaining to the tax
court.
(d) File all papers delivered to the officer for that purpose in
any suit or proceeding therein, or before the judge.
(e) Attend the tax court and administer oaths.
(f) Under the direction of the judge of the tax court enter its
orders and judgments.
(g) Authenticate, by certificate or transcript, as may be required,
the records, files or proceedings of the tax court, or any paper
pertaining thereto, and filed with the officer.
(h) In the performance of duties pertaining to the tax court,
conform to the direction of the tax court judge.
(5) The State Court Administrator may delegate powers of the State
Court Administrator under this section to employees of the State Court
Administrator. [1961 c.533 §11; 1981 c.727 §1; 1995 c.273 §5; 1995 c.650
§3] (1) The records of the tax court shall include a
register, journal and fee book.
(2) The register is a book wherein the clerk shall enter, by its
title, every suit or proceeding commenced in, or transferred or appealed
to, the tax court, according to the date of its commencement, transfer or
appeal. Thereafter, until the entry of judgment, the clerk shall note
therein, according to the date thereof, the filing or return of any paper
or process, or the making of any order, rule or other direction in or
concerning such suit or proceeding.
(3) The journal is a book wherein the clerk shall enter the
proceedings of the court.
(4) The fee book is a book wherein the clerk shall enter, under the
title of every cause, against the party to whom the service is rendered,
the clerk’s fees earned, and whether received or not received.
(5) The files of the court are all papers or process filed with or
by the clerk of the court, in any suit or proceeding therein, or before
the judge.
(6) Separate records shall be kept for the magistrate division.
(7) ORS 7.095, authorizing the use of electronic data processing
techniques, is applicable to the records required by this section. [1961
c.533 §10; 1995 c.273 §26; 1995 c.650 §5; 1997 c.325 §§9,10](Industrial Property Appeals) (1) The Legislative Assembly finds
that:
(a) Principal and secondary industrial property that is appraised
by the Department of Revenue under ORS 306.126 and property that is
centrally assessed by the department under ORS 308.505 to 308.665 involve
large amounts of property value and complex appraisal issues.
(b) Appeals of the value of principal and secondary industrial
property or centrally assessed property can have significant impact on
the stable funding of essential local government services because of the
fiscal consequences of substantial tax refunds.
(c) The citizens of this state and the owners of industrial or
centrally assessed property are best served by the efficient resolution
of property tax appeals related to these properties.
(2) The Legislative Assembly declares that it is the policy of this
state to strongly encourage taxpayers, local governments, the department
and the Oregon Tax Court to resolve appeals related to the value of
principal or secondary industrial property or centrally assessed property
as quickly and efficiently as possible, in order to reduce the financial
impacts of lengthy appeal processes. [2005 c.345 §13]Note: 305.487 and 305.489 were added to and made a part of 305.404
to 305.560 by legislative action but were not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation. The Department of Revenue
shall consider the findings and declarations of the Legislative Assembly
under ORS 305.487 when adopting administrative rules related to appeals
to the Oregon Tax Court of the value of principal or secondary industrial
property or centrally assessed property, in order to ensure that the
rules that the department adopts promote the objectives of quick and
efficient resolution of these appeals. [2005 c.345 §14]Note: See note under 305.487.(Fees)(1)
Plaintiffs or petitioners filing a complaint or petition in the tax court
shall pay a filing fee for each complaint or petition as follows:
(a) For a complaint or petition in the magistrate division, $25.
(b) For a complaint or petition in the regular division, $50.
(c) If a complaint or petition is specially designated under ORS
305.501 for hearing in the regular division, a fee of $50.
(2) Neither the State of Oregon, nor any county, school district,
municipal corporation or other public corporation therein, nor any
officer of any such public political division or corporation, appearing
in the representative capacity of the officer of any public political
division or corporation, shall be required to pay the fee prescribed
under this section. The party entitled to costs and disbursements on such
appeal shall recover from the opponent of the party the amount so paid
upon order of the court, as in equity suits in the circuit court.
(3)(a) If, in any proceeding before the tax court judge involving
taxes upon or measured by net income in which an individual taxpayer is a
party, or involving inheritance taxes, the court grants a refund claimed
by the executor or taxpayer or denies in part or wholly an additional
assessment of taxes claimed by the Department of Revenue to be due from
the estate or taxpayer, the court may allow the taxpayer, in addition to
costs and disbursements, the following:
(A) Reasonable attorney fees for the proceeding under this
subsection and for the prior proceeding in the matter, if any, before the
magistrate; and
(B) Reasonable expenses as determined by the court. Expenses
include accountant fees and fees of other experts incurred by the
executor or individual taxpayer in preparing for and conducting the
proceeding before the tax court judge and the prior proceeding in the
matter, if any, before the magistrate.
(b) Payment of attorney fees or reasonable expenses under this
subsection shall be made by the Department of Revenue in the manner
provided by ORS 305.790.
(4)(a) If, in any proceeding before the tax court judge involving
ad valorem property taxation, exemptions, special assessments or omitted
property, the court finds in favor of the taxpayer, the court may allow
the taxpayer, in addition to costs and disbursements, the following:
(A) Reasonable attorney fees for the proceeding under this
subsection and for the prior proceeding in the matter, if any, before the
magistrate; and
(B) Reasonable expenses as determined by the court. Expenses
include fees of experts incurred by the individual taxpayer in preparing
for and conducting the proceeding before the tax court judge and the
prior proceeding in the matter, if any, before the magistrate.
(b) Payment of attorney fees or reasonable expenses under this
subsection shall be made by the Department of Revenue in the manner
provided by ORS 305.790.
(5) All fees and other moneys received or collected by the clerk by
virtue of the office of the clerk shall be paid over to the State
Treasurer and shall be held by the clerk in the General Fund as
miscellaneous receipts. [1961 c.533 §15(1), (3); 1965 c.6 §7; 1971 c.265
§1; 1977 c.870 §32; 1993 c.612 §1; 1995 c.650 §6; 1997 c.99 §§40,41; 1999
c.21 §10; 2001 c.287 §1; 2005 c.345 §8] Any witness subpoenaed or
whose deposition is taken shall receive the fees and mileage provided for
witnesses in ORS 44.415 (2). Witnesses for the state or its political
subdivisions shall be paid from moneys appropriated therefor. Payment of
fees and mileage to other witnesses shall be made by the party at whose
instance the witness appears or the deposition is taken. [Formerly
305.495] The tax court
may fix a fee, not in excess of the fees charged and collected by the
clerks of the circuit court, for comparing, or for preparing and
comparing, a transcript of the record, or for copying any record, entry
or other paper and the comparison and certification thereof. [Formerly
305.500](Representation)Notwithstanding ORS 9.320, any shareholder of an S
corporation as defined in section 1361 of the Internal Revenue Code, as
amended and in effect on December 31, 2004, may represent the corporation
in any proceeding before the Oregon Tax Court in the same manner as if
the shareholder were a partner and the S corporation were a partnership.
[Formerly 305.510; 1997 c.839 §42; 1999 c.90 §29; 2001 c.660 §24; 2003
c.77 §2; 2005 c.832 §14](Magistrate Division)(1) The magistrate
division is established in the Oregon Tax Court. The judge of the tax
court shall appoint one or more individuals to sit as magistrates of the
magistrate division at locations within the state as the judge shall
determine.
(2) An individual who is appointed as a tax court magistrate shall
be a citizen of the United States and a resident of this state and
competent to perform the duties of the office.
(3) A full-time, part-time or temporary magistrate shall perform
such duties as the judge of the tax court or presiding magistrate may
direct.
(4)(a) Before entering on the duties of office, each individual
employed as a tax court magistrate shall take and subscribe to an oath or
affirmation that the individual:
(A) Will support the Constitutions of the United States and of this
state and faithfully and honestly discharge the duties of the office.
(B) Does not hold, and while the individual is a magistrate will
not hold, a position under any political party.
(b) The oath or affirmation shall be filed in the office of the
Secretary of State.
(5) An individual while a magistrate shall hold no other office or
position of profit, and shall pursue no other calling or vocation that is
inconsistent with the expeditious, proper and impartial performance of
the duties of a magistrate.
(6) The judge of the tax court may appoint one of the magistrates
as presiding magistrate.
(7) A tax court magistrate and other officers and employees of the
magistrate division of the tax court appointed under a personnel plan
established by the Chief Justice of the Supreme Court of Oregon are state
officers or employees in the exempt service and not subject to ORS
chapter 240. However, an officer or employee shall have the right to be
dismissed only for just cause after hearing and appeal. [1995 c.650 §2](1) Except as provided in subsection (2) of this
section, an appeal to the tax court shall be heard by a tax court
magistrate unless specially designated by the tax court judge for hearing
in the regular division. In any matter arising under the property tax
laws and involving a county or county assessor that is designated for
hearing in the regular division, the Department of Revenue shall be
substituted for the county as a party.
(2) A party to the appeal may request mediation, or the tax court
on its own motion may assign the matter to mediation. If the mediation
does not result in an agreed settlement within 60 days after the date of
the assignment, the appeal shall be assigned to a magistrate for hearing.
(3) The tax court, with the assistance of the State Court
Administrator, shall establish procedures for magistrate division
hearings and mediation.
(4)(a) Subject to the rules of practice and procedure established
by the tax court, a magistrate is not bound by common law or statutory
rules of evidence or by technical or formal rules of procedure, and may
conduct the hearing in any manner that will achieve substantial justice.
A hearing may be conducted in person or by telephone. Magistrates may
confer with each other in order to reach a decision on any matter.
(b) All written magistrate decisions shall be mailed to the parties
to the appeal and to the Department of Revenue within five days after the
date of entry of the written decision.
(5)(a) Any party dissatisfied with a written decision of a
magistrate may appeal the decision to the judge of the tax court by
filing a complaint in the regular division of the tax court within 60
days after the date of entry of the written decision.
(b) If a decision of a magistrate involves any matter arising under
the property tax laws and a county was a party to the proceeding before
the magistrate, the Department of Revenue may file a notice of appeal
whether or not the department had intervened in the proceeding before the
magistrate. In such cases, the department shall appear before the tax
court judge in any proceeding on appeal.
(c) If a decision of a magistrate involves any matter arising under
the property tax laws and a party other than a county appeals the
decision to the tax court judge, the Department of Revenue shall be the
defendant.
(d) Appeal to the judge of the tax court is the sole and exclusive
remedy for review of a written decision of a magistrate.
(6) Appeal of a final decision of a magistrate before the judge of
the tax court shall be as provided in ORS 305.425 (1) and 305.570.
(7) If no appeal is taken to the tax court judge within 60 days,
the decision of the magistrate shall become final. The tax court shall
enter a judgment enforcing all final decisions of the magistrate, which
judgment shall be binding upon all parties. ORS 305.440 (2) applies to
the final determination of any property tax matter. [1995 c.650 §11; 1997
c.872 §20; 1999 c.340 §1; 2005 c.345 §9] (1) The
records of the tax court magistrate division shall include information as
to the dates cases are filed and the dates decisions are issued.
(2) At the time of preparation biennially of consolidated budgets
for submission to the Legislative Assembly under ORS 8.125, the State
Court Administrator shall prepare and submit to the Legislative Assembly
general statistical information as to the amount of time required by the
tax court magistrate division to reach its decisions. [1995 c.650 §5a;
2005 c.94 §23] At the same time
that a notice of assessment, letter of refund denial or determination or
an order of the board of property tax appeals is given to any taxpayer,
the Department of Revenue or board of property tax appeals, as the case
may be, shall in writing also notify the taxpayer of the right of the
taxpayer to appeal to the tax court under ORS 305.404 to 305.560. [1961
c.533 §29; 1977 c.870 §54; 1995 c.650 §64; 1997 c.541 §§66,67](Appeals Procedure; Effect of Pendency of Appeal)(1)(a) Except for an order, or portion thereof,
denying the discretionary waiver of penalty or interest by the Department
of Revenue, an appeal under ORS 305.275 may be taken by filing a
complaint with the clerk of the Oregon Tax Court at its principal office
at Salem, Oregon, within the time required under ORS 305.280.
(b) The clerk of the tax court shall serve copies of all complaints
and petitions on the Department of Revenue. Service upon the department
shall be accomplished by the clerk of the tax court filing the copy of
the complaint with the Director of the Department of Revenue. Except as
otherwise provided by law, other service shall be accomplished as
provided in the rules of practice and procedure promulgated by the tax
court.
(c)(A) The complaint shall be entitled in the name of the person
filing the same as plaintiff and the Department of Revenue, county,
taxpayer or other person or entity as defendant. If the complaint relates
to value of property for ad valorem property tax purposes and the county
has made the appraisal, the complaint shall be entitled in the name of
the person filing the same as plaintiff and the county assessor as
defendant.
(B) If any, a copy of the order of the department or board of
property tax appeals shall be attached to the complaint.
(2) The complaint shall state the nature of the plaintiff’s
interest, the facts showing how the plaintiff is aggrieved and directly
affected by the order, act, omission or determination and the grounds
upon which the plaintiff contends the order, act, omission or
determination should be reversed or modified. A responsive pleading shall
be required of the defendant.
(3) In any case in which the taxpayer is not the appealing party, a
copy of the complaint shall be served upon the taxpayer by the appealing
party by certified mail within the period for filing an appeal, and an
affidavit showing such service shall be filed with the clerk of the tax
court. A copy of the order of the department, if any, shall be attached
to the complaint. The taxpayer shall have the right to appear and be
heard.
(4)(a) At any time in the course of any appeal before the tax
court, the department may intervene as a matter of right. A copy of any
order or judgment issued by the tax court in any case in which the
department is an intervenor shall be served upon the department in the
manner provided in subsection (1)(b) of this section.
(b) The tax court, in its discretion, may permit other interested
persons to intervene by filing a complaint in such manner and under such
conditions as the court may deem appropriate. [1977 c.870 §10; 1989 c.760
§3; 1991 c.459 §23; 1993 c.270 §16; 1995 c.650 §10; 1997 c.541 §71; 2005
c.225 §4](1) Except as provided in subsection (2) of this
section, proceedings for the collection of any taxes, interest or
penalties resulting from an assessment of additional taxes imposed by ORS
chapter 118, 310, 314, 316, 317, 318, 321 or this chapter shall be stayed
by the taking or pendency of any appeal to the tax court.
(2) Notwithstanding subsection (1) of this section, the Department
of Revenue may proceed to collect any taxes, interest or penalties
described in subsection (1) of this section if the department determines
that collection will be jeopardized if collection is delayed or that the
taxpayer has taken a frivolous position in the appeal. For purposes of
this subsection:
(a) Collection of taxes, interest or penalties will be jeopardized
if the taxpayer designs quickly to depart from the state or to remove the
taxpayer’s property from the state, or to do any other act tending to
prejudice or to render wholly or partially ineffectual proceedings to
collect the tax.
(b) A taxpayer’s position in an appeal is frivolous if that
position is of the kind described in ORS 316.992 (5).
(3) No proceeding for the apportionment, levy or collection of
taxes on any property shall be stayed by the taking or pendency of any
appeal to the tax court, or from an order of the county board of property
tax appeals or the Oregon Tax Court, unless the assessor or tax collector
either as a party to the suit or an intervenor, requests a stay and it
appears to the satisfaction of the court that a substantial public
interest requires the issuance of a stay.
(4) The tax court may, as a condition of a stay, require the
posting of a bond sufficient to guarantee payment of the tax. Payment of
taxes while appeal is pending shall not operate as a waiver of the appeal
or of a right to refund of taxes found to be excessively charged or
assessed. [1977 c.870 §11; 1982 s.s.1 c.29 §4; 1985 c.761 §9; 1991 c.567
§4; 1993 c.270 §18; 1995 c.650 §23; 1997 c.99 §§47,48; 1997 c.325 §13;
1997 c.541 §73](1)(a) Any person, including a county assessor or
county tax collector aggrieved by and affected by a written decision of a
tax court magistrate issued under ORS 305.501, or any person seeking a
remedy in the tax court provided by statute, other than as provided in
ORS 305.275 (1), may appeal to the regular division of the Oregon Tax
Court, and appeal shall be perfected in the manner provided in ORS
305.404 to 305.560.
(b) Except for an appeal brought by a county assessor or county tax
collector, the order being appealed under this subsection must affect the
person or the property of the person making the appeal or property for
which the person making the appeal holds an interest that obligates the
person to pay taxes imposed on the property. As used in this paragraph,
an interest that obligates the person to pay taxes includes a contract,
lease or other intervening instrumentality.
(2) A taxpayer or political subdivision affected by a determination
of the Department of Revenue authorized under ORS 305.620 may appeal to
the tax court as provided in ORS 305.620. [1977 c.870 §13; 1983 c.605 §3;
1983 c.749 §3; 1991 c.459 §29; 1993 c.18 §65; 1995 c.650 §24; 1997 c.541
§75; 1997 c.826 §§4,5; 1999 c.21 §11; 1999 c.340 §4] In an
appeal to the Oregon Tax Court from an assessment made under ORS 305.265,
the tax court has jurisdiction to determine the correct amount of
deficiency, even if the amount so determined is greater or less than the
amount of the assessment determined by the Department of Revenue, and
even if determined upon grounds other or different from those asserted by
the department, provided that claim for such additional tax on other or
different grounds is asserted by the department before or at the hearing
or any rehearing of the case before the tax court. In the event such
other or different grounds are asserted by the department, the opposing
party shall be allowed additional time, not less than 10 days, within
which to amend or otherwise plead thereto, which additional time,
however, may be waived by stipulation of the parties. The order of the
tax court shall be sufficient for the collection by the department of the
entire amount found by the court to be owing and due. [1977 c.870 §21;
1995 c.650 §30](Constitutional Limits Upon Property Taxes; Effects; Determination)(1) The provisions of ORS 305.583, 305.585, 305.587 and
305.589 shall provide the exclusive remedy for determination of questions
concerning:
(a) The effect of the limits of section 11b, Article XI of the
Oregon Constitution on taxes, fees, charges and assessments of units of
government.
(b) The authorized uses of the proceeds of bonded indebtedness
described in section 11 (11)(d), Article XI of the Oregon Constitution.
(2) A petition filed with the regular division of the Oregon Tax
Court pursuant to ORS 305.583, 305.585, 305.587 or 305.589 shall have
priority over all other cases pending before the regular division and
shall be heard and decided as soon after coming to issue as is reasonably
possible. [1991 c.459 §25; 1999 c.340 §8; 2003 c.195 §19](1) An interested
taxpayer may petition the regular division of the Oregon Tax Court to
determine a question described in ORS 305.580.
(2)(a) For purposes of this section and a question described in ORS
305.580 (1)(a), “interested taxpayer” means a person that is subject to
the tax, fee, charge or assessment in question.
(b) For purposes of this section and a question described in ORS
305.580 (1)(b), “interested taxpayer” means a person that is subject to a
tax, fee, charge or assessment that is pledged to secure or available for
payment of bonded indebtedness described in section 11 (11)(d), Article
XI of the Oregon Constitution.
(3) The petition shall be filed and perfected in the following
manner only:
(a) The petitioner shall file a petition with the clerk of the tax
court at its principal office in Salem, Oregon. The petition shall name
as respondent the government unit that imposes the tax, fee, charge or
assessment, that issues the bonded indebtedness or, in the case of an
urban renewal agency, that receives the taxes. The filing in the tax
court shall constitute the perfection of the petition. The clerk of the
tax court shall serve the government unit by mailing a copy of the
petition to the recording officer or chief administrative officer of the
local government unit or to the Attorney General if the tax, fee, charge
or assessment in question is imposed by the State of Oregon. The clerk
also shall serve a copy of any petition naming a local government unit as
respondent upon the Oregon Department of Justice.
(b) The petition shall state the facts and grounds upon which the
petitioner contends that the tax, fee, charge or assessment is affected
by section 11 or 11b, Article XI of the Oregon Constitution, or that a
use of the proceeds of bonded indebtedness is not authorized. The case
shall proceed thereafter in the manner provided for appeals concerning ad
valorem property tax assessments. ORS 305.405 to 305.494 shall apply to
such actions.
(4)(a) Except as provided in subsections (5) to (8) of this
section, in the case of a question regarding the effect of the limits of
section 11b, Article XI of the Oregon Constitution, on any tax, fee,
charge or assessment that is imposed under a resolution or ordinance
approved by the governing body of a local government unit, the petition
shall be filed within 60 days after the action of the governing body
approving the ordinance or resolution, adopting a new ordinance or
resolution or changing an existing ordinance or resolution under which
the tax, fee, charge or assessment is imposed, if the resolution or
ordinance includes a classification of the tax, fee, charge or assessment
as subject to or not subject to section 11 or 11b, Article XI of the
Oregon Constitution. If the local government unit has not classified the
tax, fee, charge or assessment, the petition shall be filed within 60
days after the later of:
(A) The last date, but no later than November 15, that the tax
statements were mailed for the tax year in which the tax, fee, charge or
assessment was imposed; or
(B) The date of imposition of the tax, fee, charge or assessment on
the petitioner.
(b) If the local government unit adopts an ordinance or resolution
classifying all or any of the taxes, fees, charges or assessments it
imposes as subject to or not subject to section 11 or 11b, Article XI of
the Oregon Constitution, as described in ORS 310.145, the petition shall
be filed within 60 days after the governing body adopts the ordinance or
resolution.
(5) In the case of a question concerning any tax, fee, charge or
assessment that is characterized by the local government unit as an
assessment for local improvements, the petition shall be filed within 60
days after the local government unit gives notice of its intention to
characterize the charge as an assessment for local improvements. Notice
may be given to affected property owners by the local government unit
either when a local improvement district is formed, in a notice of intent
to assess given by the local government unit or by other individual
notice prior to assessment. Notice shall be given no later than the date
the assessment is imposed. Notice given as provided under this subsection
is in lieu of the notice required under subsection (9) of this section.
(6) In the case of a question concerning any taxes levied to pay
principal and interest on bonded indebtedness approved by the governing
body of a local government unit, the petition shall be filed within 60
days after the date the issuance of the bonded indebtedness was approved
by the governing body of the local government unit if the resolution or
ordinance of the governing body authorizing issuance of the bonded
indebtedness includes a classification of the bonded indebtedness as
subject to or not subject to the limits of section 11 or 11b, Article XI
of the Oregon Constitution. If the local government unit has not
classified the bonded indebtedness, the petition shall be filed within 60
days after the date specified in subsection (4)(a) of this section.
(7) In the case of a question concerning any taxes levied to pay
principal and interest on bonded indebtedness not subject to the limits
of section 11 or 11b, Article XI of the Oregon Constitution, that was
approved by the electors of the local government unit at an election held
on or after September 29, 1991, the petition shall be filed within 60
days after the date of the election at which the question of issuing the
bonded indebtedness was approved by the electors of the local government
unit.
(8) In the case of a question concerning the effect of section 11
or 11b, Article XI of the Oregon Constitution, on any tax, fee, charge or
assessment imposed by the state, the petition shall be filed within 60
days after the first imposition of the tax, fee, charge or assessment by
a state agency. For purposes of this subsection, a tax, fee, charge or
assessment shall be considered imposed when it is due as provided by
statute or when the state agency notifies a person that the tax, fee,
charge or assessment is due.
(9) A local government unit:
(a) Shall give notice of its adoption of an ordinance or resolution
classifying any of its taxes, fees, charges or assessments as not being
subject to the limits of section 11 or 11b, Article XI of the Oregon
Constitution, by publishing, within 15 days after adoption of the
ordinance or resolution, an advertisement in a newspaper of general
circulation in the county in which the local government unit is located
or, if there is no newspaper of general circulation, in a newspaper of
general circulation in a contiguous county.
(b) May give notice of its adoption of an ordinance or resolution
specifying the authorized uses of the proceeds of bonded indebtedness by
publishing, within 15 days after adoption of the ordinance or resolution,
an advertisement in a newspaper of general circulation in the county in
which the local government unit is located or, if there is no newspaper
of general circulation, in a newspaper of general circulation in a
contiguous county.
(10) A notice described in subsection (9) of this section shall:
(a) Appear in the general news section of the newspaper, not in the
classified advertisements;
(b) Measure at least three inches square;
(c) Be printed in a type size at least equal to 8-point type; and
(d) State that the local government unit has adopted a resolution
or ordinance:
(A) Classifying one or more of its taxes, fees, charges or
assessments as not being subject to the limits of section 11 or 11b,
Article XI of the Oregon Constitution, that the reader may contact a
designated individual within the local government unit to obtain a copy
of the ordinance or resolution and that judicial review of the
classification of the taxes, fees, charges or assessments may be sought
within 60 days of the date of the resolution or ordinance; or
(B) Specifying the authorized uses of the proceeds of bonded
indebtedness, that the reader may contact a designated individual within
the local government unit to obtain a copy of the ordinance or resolution
and that judicial review of the specification of authorized uses may be
sought within 60 days of the date of the resolution or ordinance.
(11) An ordinance or resolution that results in a mere change in
the amount of a tax, fee, charge or assessment and does not result in a
change in the characteristics or attributes of the tax, fee, charge or
assessment, or contain a change in purpose to which the revenue is
applied, may not be considered a change that may result in a proceeding
commenced under subsection (4) of this section.
(12) In the case of a question concerning the authorized uses of
the proceeds of bonded indebtedness, the petition must be filed within 60
days after publication of the notice described in subsection (9)(b) of
this section or, if the governing body has not published the notice
described in subsection (9)(b) of this section, the petition must be
filed within 180 days after the questioned use of the proceeds is made.
[1991 c.459 §26; 1993 c.18 §66; 1993 c.270 §19; 1995 c.79 §110; 1995
c.650 §73; 1997 c.541 §§78,78a,79,79a; 1999 c.340 §9; 2003 c.195 §20;
2005 c.225 §5; 2005 c.443 §18](1) A
local government unit may petition the regular division of the Oregon Tax
Court to determine whether the limits of section 11b, Article XI of the
Oregon Constitution apply to a tax, fee, charge or assessment of another
local government unit if the boundaries of both units include common
territory and if the petitioning local government unit will lose or has
lost revenue because of the tax, fee, charge or assessment that is the
subject of the petition.
(2) The petitioner shall file a petition with the clerk of the tax
court at its principal office in Salem, Oregon. The petition shall name
the local government unit that imposes the tax, fee, charge or assessment
as respondent. Such filing in the tax court shall constitute the
perfection of the petition. The clerk of the tax court shall serve the
respondent local government unit by mailing a copy of the petition to the
recording officer or chief administrative officer of the local government
unit. The clerk also shall serve a copy of the petition upon the Oregon
Department of Justice.
(3) The petition shall state the facts and grounds upon which the
petitioner contends that the tax, fee, charge or assessment at issue is
not subject to the limits of section 11b, Article XI of the Oregon
Constitution. The case shall proceed thereafter in the manner provided
for appeals concerning ad valorem property tax assessments. ORS 305.405
to 305.494 shall apply to such actions.
(4) The petition shall be filed not later than 30 days after the
date the respondent local government unit filed its certificate required
under ORS 310.060 with the county assessor. [1991 c.459 §26a; 1995 c.79
§111; 1995 c.650 §74; 1999 c.340 §10; 2005 c.225 §6](1) The Legislative Assembly finds that, when general
obligation bonds are issued by a government unit to finance the cost of
capital construction or improvements, subjecting the taxes imposed to pay
the principal and interest on that bonded indebtedness to the limits of
section 11b (1), Article XI of the Oregon Constitution, reduces the
credit quality of the bonds, injures bondholders and increases the cost
of borrowing for all local governments in Oregon. The Legislative
Assembly also finds that it is in the best interests of the State of
Oregon and local governments in Oregon to ensure that, if a local
government body expends proceeds from such bonds for other than capital
construction or improvements, the holders of the bonds, who are innocent
with regard to such expenditure, will not suffer impairment of their
security and interest in the bonds as a result.
(2) It is the policy of the State of Oregon and a matter of
statewide concern that, notwithstanding ORS 305.587 (1) and 305.589 (8),
if in a proceeding commenced under ORS 305.583 or 305.589, the Oregon Tax
Court finds that the proceeds of general obligation bonds issued for
capital construction or improvements under section 11b (3)(b), Article XI
of the Oregon Constitution, have been expended for purposes other than
capital construction or improvements, the court shall endeavor, to the
fullest extent practicable and consistent with equitable principles, to
fashion a remedy that does not impair the security or value of the bonds
to the bondholders and does not prejudice the ability of the local
government body to satisfy its obligations under the bonds.
(3) In addition, the court shall fashion any remedy in a manner
that takes into account the financial capacity and practical alternatives
available to the local government body, and shall ensure that the remedy
is proportional to, and restricted to correcting the amount of, any
unlawful expenditure of bond proceeds. To the fullest extent possible,
the court shall avoid any remedy that either invalidates, in whole or in
part, the bonds or taxes levied or to be levied for payment of the bonds,
or that makes any amount of the bonds for which the proceeds lawfully
were expended subject to the limits of section 11b (1), Article XI of the
Oregon Constitution. [1997 c.171 §5](1) If, in a proceeding commenced under ORS
305.583, the regular division of the Oregon Tax Court finds that a
challenged tax, fee, charge or assessment is subject to the limits of
section 11 or 11b, Article XI of the Oregon Constitution, the tax court
may:
(a) Order the government unit to make refunds to petitioners of any
part of the challenged tax, fee, charge or assessment imposed on or after
the date that is 90 days before the date the petition was filed and that
was collected in excess of the limits of section 11 or 11b, Article XI of
the Oregon Constitution. The tax court may not order refunds if the
government unit previously had obtained a judgment of the tax court or
the Oregon Supreme Court under ORS 305.589, that the tax, fee, charge or
assessment in question was not subject to the limits of section 11 or
11b, Article XI of the Oregon Constitution.
(b) Order such other relief as it considers appropriate, including
cancellation of taxes imposed but not collected, but such relief shall
have prospective effect only. In cases involving local government units,
a copy of the tax court’s order shall be served upon the assessor of the
county or counties in which the local government unit is located at the
same time the order is served upon the parties.
(2) If the tax court orders a unit of government to make refunds of
any tax, fee, charge or assessment that was imposed and collected in
excess of the limits of section 11 or 11b, Article XI of the Oregon
Constitution, the government unit shall do so out of the resources of the
government unit. No refund so ordered shall be paid from the unsegregated
tax collections account. The assessor shall not be required to recompute
the amount of tax due from any property or property owner with respect to
the tax, fee, charge or assessment that is the subject of the order for
any tax year for which a tax statement has been delivered under ORS
311.250.
(3) If, in a proceeding commenced under ORS 305.585, the tax court
finds that a tax, fee, charge or assessment is not subject to the limits
of section 11 or 11b, Article XI of the Oregon Constitution, the tax
court may order such relief as it considers appropriate, but such relief
shall have prospective effect only. In cases involving local government
units, a copy of the tax court’s order shall be served upon the assessor
of the county or counties in which the local government unit is located
at the same time the order is served upon the parties. The assessor shall
not be required to recompute the amount of tax due from any property or
property owner with respect to the tax, fee, charge or assessment that is
the subject of the order for any tax year for which a tax statement has
been delivered under ORS 311.250.
(4) For purposes of this section, taxes, fees, charges or
assessments are deemed imposed when the statement or bill for the taxes,
fees, charges or assessments is mailed.
(5) In the case of a question concerning the authorized uses of the
proceeds of bonded indebtedness, the tax court shall construe the
provisions of the measure authorizing the bonded indebtedness and the use
of the proceeds liberally to allow the government unit to provide the
facilities or services approved by the voters.
(6) If, in a proceeding commenced under ORS 305.583, the regular
division of the tax court finds that a use of the proceeds of bonded
indebtedness is not authorized by the applicable law, the tax court may
prohibit the expenditure or proceed in accordance with ORS 305.586. [1991
c.459 §26b; 1993 c.270 §20; 1997 c.541 §84; 1999 c.340 §11; 2003 c.195
§21](1) A local government
unit or an association of local government units acting for the common
benefit of and on behalf of consenting members may petition the regular
division of the Oregon Tax Court for a judicial declaration of the court
concerning a question described in ORS 305.580.
(2) Notice of the commencement of a proceeding under this section
shall be given by the petitioner or petitioners by publication of notice
directed to all electors, taxpayers and other interested persons, without
naming such electors, taxpayers or other interested persons individually.
The notice shall be published at least once a week for three successive
weeks in a newspaper of general circulation within the boundaries of the
local government unit and each of the consenting members of the
association of local government units, if any, or if no such newspaper is
published therein, then in a contiguous county.
(3) The petitioner or petitioners may elect to give further notice
to affected electors, taxpayers and other interested persons, or the
court may order such further notice as the court considers practicable.
(4) The action authorized by this section shall be a special
proceeding in the nature of an ex parte proceeding in the absence of the
intervention of a respondent in opposition to the petition.
(5) Jurisdiction of the local government unit and of consenting
members of an association of local government units shall be obtained by
filing of the petition. Jurisdiction over the electors, taxpayers and
other interested persons shall be complete 10 days after the date of
completing publication of the notice provided for in subsection (2) of
this section, or giving of any further notice as provided for in
subsection (3) of this section. Jurisdiction of any other party shall be
obtained by appearance of any interested person who seeks and is granted
leave to intervene in the proceeding.
(6)(a) Any elector, taxpayer or interested person or local
government unit that may be affected by the tax, fee, charge or
assessment that is the subject of the petition may intervene as a
petitioner or respondent by filing the appropriate appearance.
(b) Any elector, taxpayer or interested person or local government
unit that may be affected by the use of the proceeds of the bonded
indebtedness or a person that is subject to a tax, fee, charge or
assessment that is pledged to secure or available for payment of the
bonded indebtedness that is the subject of the petition may intervene as
a petitioner or respondent by filing the appropriate appearance.
(7) Any party to a proceeding commenced under this section,
including a consenting member of an association of local government units
that was a party to the proceeding, may appeal from the judgment rendered
by the tax court to the Oregon Supreme Court in the manner provided for
appeals from other decisions of the tax court under ORS 305.445.
(8)(a) If, in a proceeding commenced under this section, the court
finds that a tax, fee, charge or assessment is subject to the limits of
section 11b, Article XI of the Oregon Constitution, the court may order
such relief as it considers appropriate, but such relief shall be
prospective only.
(b) If, in a proceeding commenced under this section, the court
finds that a use of the proceeds of bonded indebtedness is not
authorized, the tax court may prohibit the expenditure or proceed in
accordance with ORS 305.586.
(9) Costs of the proceeding may be allowed and apportioned between
the parties in the discretion of the court.
(10) As used in this section:
(a) “Association of local government units” means an association,
or any other lawful organization, composed of member local government
units organized for the mutual benefit of such local government units.
(b) “Consenting member” means a member of an association of local
government units who affirmatively consents, through filing of a
consenting certificate with the tax court, to the commencement of a
proceeding under this section.
(c) “Local government unit” means any unit of local government,
including a city, county, incorporated town or village, school district,
any other special district, or any other municipal or quasi-municipal
corporation, intergovernmental authority created pursuant to ORS 190.010,
a district as defined in ORS 198.010, 198.180 and 198.210 or an urban
renewal agency established under ORS 457.035. [1991 c.459 §27; 1993 c.270
§21; 1999 c.340 §12; 2003 c.195 §22; 2003 c.576 §250; 2005 c.22 §226](1) If a court of
competent jurisdiction determines that all or any part of section 11b,
Article XI of the Oregon Constitution does not apply to a tax on
property, the court may order the assessor, tax collector or other
appropriate public official to impose or collect that tax without regard
to that portion of section 11b, Article XI of the Oregon Constitution the
court determines to be inapplicable.
(2) When so ordered by a court, the assessor, tax collector or
other public official shall take all necessary action to impose or
collect the tax in compliance with the order of the court.
(3) Appeal of a decision of a court that all or any part of section
11b, Article XI of the Oregon Constitution does not apply to any tax
shall not operate to stay any order of the court directing a public
official to collect the tax without regard to the provisions of all or
part of section 11b, Article XI of the Oregon Constitution. [1991 c.459
§28]INTERGOVERNMENTAL TAX RELATIONS(Federal and Other States)
Where not inconsistent with the Constitution and laws of the United
States, notwithstanding any provision of any other statute of this state,
the laws of this state relating to the imposition and collection of taxes
shall apply with respect to any property located, any sale, use or
transaction occurring, any income arising, or any person residing within
any federal area situated within the exterior boundaries of this state.
[Formerly 306.240](1) The courts of Oregon shall recognize and
enforce the liability for taxes lawfully imposed by the laws of any other
state which extends a like comity in respect of the liability for taxes
lawfully imposed by the laws of this state. The officials of such other
state may bring action in the courts of this state for the collection of
such taxes. The certificate of the Secretary of State of such other state
that such officials have the authority to collect the taxes sought to be
collected by such action shall be conclusive proof of that authority.
(2) The Attorney General of Oregon, and collection agencies when
employed as provided by ORS 825.508, are empowered to bring action in the
courts of other states to collect taxes legally due the State of Oregon.
(3) As used in this section, “taxes” includes:
(a) Tax assessments lawfully made whether they are based upon a
return or other disclosure of the taxpayer, upon the information and
belief of the taxing authority, or otherwise.
(b) Penalties lawfully imposed pursuant to a taxing statute.
(c) Interest charges lawfully added to the tax liability which
constitutes the subject of the action.
(4) The Oregon Tax Court shall not have jurisdiction over actions
brought pursuant to this section. [Formerly 306.250; subsection (4)
enacted as 1961 c.533 §54; 1967 c.178 §4](1) The Director of the Department of Revenue may
enter into an intergovernmental agreement with the United States
Financial Management Service and the Internal Revenue Service for the
purpose of engaging in the reciprocal offset of federal tax refunds in
payment of liquidated state tax obligations and the offset of state tax
refunds in payment of liquidated federal tax obligations.
(2) The director may pay a fee charged by the federal government
for the processing of an offset request. The fee may be deducted from
amounts remitted to the state by the federal government pursuant to an
intergovernmental agreement.
(3) The Department of Revenue may by rule establish a fee to be
charged to the federal government for the provision of state offset
services.
(4) All moneys received by the department in payment of charges
made pursuant to subsection (3) of this section shall be deposited in a
department miscellaneous receipts account established under ORS 279A.290.
[2001 c.28 §3; 2003 c.794 §254]The Department of Revenue shall apportion annually to
the state and counties any moneys received by the state from the United
States, or any agency thereof, as payments in lieu of ad valorem property
taxes. Such moneys shall be apportioned in the same amounts and to the
same governmental divisions as the taxes in lieu of which the payments
are made would be apportioned if they were levied. [Formerly 306.180](Local)(1) Any
state agency or department may enter into agreements with any political
subdivision of this state for the collection, enforcement, administration
and distribution of local taxes of the political subdivision imposed upon
or measured by gross or net income, wages or net earnings from
self-employment or local general sales and use taxes.
(2) The department or agency shall prescribe the rules by which the
agreements entered into under subsection (1) of this section are
administered.
(3) The department or agency shall prescribe the rules by which the
taxes described by subsection (1) of this section are administered,
collected, enforced and distributed.
(4) A political subdivision may appear as an intervenor at any
conference held by the Department of Revenue or conference, hearing or
proceeding held by another department or agency in connection with a
local tax administered by the department or agency. The political
subdivision may be represented by its own counsel. The department or
agency shall adopt rules governing the procedures to be followed by the
political subdivision in making an appearance.
(5) Costs incurred by the department or agency in the
administration, enforcement, collection and distribution of taxes under
the agreements entered into under subsection (1) of this section shall be
first deducted from the taxes collected before distribution is made to
the political subdivision which is a party to the agreement.
(6) The Oregon Tax Court shall have exclusive jurisdiction to
review determinations of the Department of Revenue or orders of another
department or agency relating to the collection, enforcement,
administration and distribution of local taxes under agreements entered
into under subsection (1) of this section.
(7) A proceeding for refund or to set aside additional taxes or
taxes assessed when no return was filed may be initiated before the state
agency or department.
(8) An appeal from a determination or an order may be taken by the
taxpayer or by the political subdivision whose taxes are in issue, by
filing a complaint with the clerk of the Oregon Tax Court at its
principal office at the state capital, Salem, Oregon, within 60 days
after the notice of the determination of the Department of Revenue or the
order of the department or agency is sent to the taxpayer or the
political subdivision. The filing of the complaint in the Oregon Tax
Court shall constitute perfection of the appeal. Service of the
taxpayer’s complaint shall be accomplished by the clerk of the tax court
by filing a copy of the complaint with the administrative head of the
department or agency and a copy with the political subdivision. Service
of the political subdivision’s complaint shall be accomplished by the
clerk of the tax court by filing a copy of the complaint with the
administrative head of the department or agency and mailing a copy of the
complaint to the taxpayer. The complaint of a taxpayer shall be entitled
in the name of the person filing as plaintiff and the department or
agency as defendant. The complaint of a political subdivision shall be
entitled in the name of the political subdivision as plaintiff and the
taxpayer and the department or agency as defendants. A copy of the order
of the department or agency shall be attached to the complaint. All
procedures shall be in accordance with ORS 305.405 to 305.494. [1967
c.550 §§12,13,14,15; 1969 c.574 §5; 1971 c.261 §1; 1971 c.600 §3; 1973
c.98 §1; 1983 c.749 §4; 1985 c.407 §3; 1995 c.79 §112; 1995 c.650 §62;
1997 c.325 §15; 1999 c.21 §12; 2003 c.621 §78; 2005 c.225 §7; 2005 c.345
§10]If the ordinances of any city
or county in this state provide for the collection of an income tax, in
whole or in part, by imposing on employers generally the duty of
withholding sums from the compensation of individuals employed within the
boundaries of the city or county and making returns of such sums to the
authorities of such cities or counties, then the State of Oregon or any
political subdivision is considered to be an employer as to its employees
who come within the jurisdictional limits of the ordinance of the city or
county. [1969 c.574 §1]The head of each branch, department or agency of the government
of the State of Oregon or a political subdivision (whether executive,
legislative or judicial) shall comply with requirements of such city or
county ordinance in the case of employees of such branch, department or
agency who are subject to such tax and whose regular place of employment
is within the city or county, pursuant to an agreement made under ORS
305.620. [1969 c.574 §2]The city or county shall designate clearly the rate of withholding
to be used by the State of Oregon or political subdivision and shall
provide forms acceptable to the state or political subdivision to be used
in reporting and remitting taxes withheld pursuant to the agreement.
[1969 c.574 §3] Nothing in ORS
305.620 to 305.640 consents to the application of any law that has the
effect of imposing more burdensome requirements on the State of Oregon or
a political subdivision than it imposes on other employers, or that has
the effect of subjecting the State of Oregon or a political subdivision,
or any of its officers or employees, to any penalty or liability by
reason of ORS 305.620 to 305.640. [1969 c.574 §4]MULTISTATE TAX COMPACT The Multistate Tax Compact is
hereby enacted into law and entered into on behalf of this state with all
other jurisdictions legally joining therein in a form substantially as
follows:
___________________________________________________________________________
___ARTICLE I
PURPOSESThe purposes of this compact are to:
1. Facilitate proper determination of state and local tax liability
of multistate taxpayers, including the equitable apportionment of tax
bases and settlement of apportionment disputes.
2. Promote uniformity or compatibility in significant components of
tax systems.
3. Facilitate taxpayer convenience and compliance in the filing of
tax returns and in other phases of tax administration.
4. Avoid duplicative taxation.
ARTICLE II
DEFINITIONSAs used in this compact:
1. “State” means a state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any territory or possession
of the United States.
2. “Subdivision” means any governmental unit or special district of
a state.
3. “Taxpayer” means any corporation, partnership, firm,
association, governmental unit or agency or person acting as a business
entity in more than one state.
4. “Income tax” means a tax imposed on or measured by net income
including any tax imposed on or measured by an amount arrived at by
deducting expenses from gross income, one or more forms of which expenses
are not specifically and directly related to particular transactions.
5. “Capital stock tax” means a tax measured in any way by the
capital of a corporation considered in its entirety.
6. “Gross receipts tax” means a tax, other than a sales tax, which
is imposed on or measured by the gross volume of business, in terms of
gross receipts or in other terms, and in the determination of which no
deduction is allowed which would constitute the tax an income tax.
7. “Sales tax” means a tax imposed with respect to the transfer for
a consideration of ownership, possession or custody of tangible personal
property or the rendering of services measured by the price of the
tangible personal property transferred or services rendered and which is
required by state or local law to be separately stated from the sales
price by the seller, or which is customarily separately stated from the
sales price, but does not include a tax imposed exclusively on the sale
of a specifically identified commodity or article or class of commodities
or articles.
8. “Use tax” means a nonrecurring tax, other than a sales tax,
which (a) is imposed on or with respect to the exercise or enjoyment of
any right or power over tangible personal property incident to the
ownership, possession or custody of that property or the leasing of that
property from another including any consumption, keeping, retention, or
other use of tangible personal property and (b) is complementary to a
sales tax.
9. “Tax” means an income tax, capital stock tax, gross receipts
tax, sales tax, use tax, and any other tax which has a multistate impact,
except that the provisions of Articles III, IV and V of this compact
shall apply only to the taxes specifically designated therein and the
provisions of Article IX of this compact shall apply only in respect to
determinations pursuant to Article IV.
ARTICLE III
ELEMENTS OF
INCOME TAX LAWS1. Taxpayer option, state and local taxes. Any taxpayer subject to
an income tax whose income is subject to apportionment and allocation for
tax purposes pursuant to the laws of a party state or pursuant to the
laws of subdivisions in two or more party states may elect to apportion
and allocate his income in the manner provided by the laws of such state
or by the laws of such states and subdivisions without reference to this
compact, or may elect to apportion and allocate in accordance with
Article IV. This election for any tax year may be made in all party
states or subdivisions thereof or in any one or more of the party states
or subdivisions thereof without reference to the election made in the
others. For the purposes of this paragraph, taxes imposed by subdivisions
shall be considered separately from state taxes and the apportionment and
allocation also may be applied to the entire tax base. In no instance
wherein Article IV is employed for all subdivisions of a state may the
sum of all apportionments and allocations to subdivisions within a state
be greater than the apportionment and allocation that would be assignable
to that state if the apportionment or allocation were being made with
respect to a state income tax.
2. Taxpayer option, short form. Each party state or any subdivision
thereof which imposes an income tax shall provide by law that any
taxpayer required to file a return, whose only activities within the
taxing jurisdiction consist of sales and do not include owning or renting
real estate or tangible personal property, and whose dollar volume of
gross sales made during the tax year within the state or subdivision, as
the case may be, is not in excess of $100,000 may elect to report and pay
any tax due on the basis of a percentage of such volume, and shall adopt
rates which shall produce a tax which reasonably approximates the tax
otherwise due. The Multistate Tax Commission, not more than once in five
years, may adjust the $100,000 figure in order to reflect such changes as
may occur in the real value of the dollar, and such adjusted figure, upon
adoption by the commission, shall replace the $100,000 figure
specifically provided herein. Each party state and subdivision thereof
may make the same election available to taxpayers additional to those
specified in this paragraph.
3. Coverage. Nothing in this Article relates to the reporting or
payment of any tax other than an income tax.ARTICLE IV
DIVISION OF INCOME1. As used in this Article, unless the context otherwise requires:
(a) “Business income” means income arising from transactions and
activity in the regular course of the taxpayer’s trade or business and
includes income from tangible and intangible property if the acquisition,
management, and disposition of the property constitute integral parts of
the taxpayer’s regular trade or business operations.
(b) “Commercial domicile” means the principal place from which the
trade or business of the taxpayer is directed or managed.
(c) “Compensation” means wages, salaries, commissions and any other
form of remuneration paid to employees for personal services.
(d) “Financial organization” means any bank, trust company, savings
bank, industrial bank, land bank, safe deposit company, private banker,
savings and loan association, credit union, cooperative bank, small loan
company, sales finance company, investment company, or any type of
insurance company.
(e) “Nonbusiness income” means all income other than business
income.
(f) “Public utility” means any business entity (1) which owns or
operates any plant, equipment, property, franchise, or license for the
transmission of communications, transportation of goods or persons,
except by pipe line, or the production, transmission, sale, delivery, or
furnishing of electricity, water or steam; and (2) whose rates of charges
for goods or services have been established or approved by a federal,
state or local government or governmental agency.
(g) “Sales” means all gross receipts of the taxpayer not allocated
under paragraphs of this Article.
(h) “State” means any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession of
the United States, and any foreign country or political subdivision
thereof.
(i) “This state” means the state in which the relevant tax return
is filed or, in the case of application of this Article to the
apportionment and allocation of income for local tax purposes, the
subdivision or local taxing district in which the relevant tax return is
filed.
2. Any taxpayer having income from business activity which is
taxable both within and without this state, other than activity as a
financial organization or public utility or the rendering of purely
personal services by an individual, shall allocate and apportion his net
income as provided in this Article. If a taxpayer has income from
business activity as a public utility but derives the greater percentage
of his income from activities subject to this Article, the taxpayer may
elect to allocate and apportion his entire net income as provided in this
Article.
3. For purposes of allocation and apportionment of income under
this Article, a taxpayer is taxable in another state if (1) in that state
he is subject to a net income tax, a franchise tax measured by net
income, a franchise tax for the privilege of doing business, or a
corporate stock tax, or (2) that state has jurisdiction to subject the
taxpayer to a net income tax regardless of whether, in fact, the state
does or does not.
4. Rents and royalties from real or tangible personal property,
capital gains, interest, dividends or patent or copyright royalties, to
the extent that they constitute nonbusiness income, shall be allocated as
provided in paragraphs 5 through 8 of this Article.
5. (a) Net rents and royalties from real property located in this
state are allocable to this state.
(b) Net rents and royalties from tangible personal property are
allocable to this state: (1) if and to the extent that the property is
utilized in this state, or (2) in their entirety if the taxpayer’s
commercial domicile is in this state and the taxpayer is not organized
under the laws of or taxable in the state in which the property is
utilized.
(c) The extent of utilization of tangible personal property in a
state is determined by multiplying the rents and royalties by a fraction,
the numerator of which is the number of days of physical location of the
property in the state during the rental or royalty period in the taxable
year and the denominator of which is the number of days of physical
location of the property everywhere during all rental of royalty periods
in the taxable year. If the physical location of the property during the
rental or royalty period is unknown or unascertainable by the taxpayer,
tangible personal property is utilized in the state in which the property
was located at the time the rental or royalty payer obtained possession.
6. (a) Capital gains and losses from sales of real property located
in this state are allocable to this state.
(b) Capital gains and losses from sales of tangible personal
property are allocable to this state if (1) the property had a situs in
this state at the time of the sale, or (2) the taxpayer’s commercial
domicile is in this state and the taxpayer is not taxable in the state in
which the property had a situs.
(c) Except in the case of the sale of a partnership interest,
capital gains and losses from sales of intangible personal property are
allocable to this state if the taxpayer’s commercial domicile is in this
state.
(d) Gain or loss from the sale of a partnership interest is
allocable to this state in the ratio of the original cost of partnership
tangible property in the state to the original cost of partnership
tangible property everywhere, determined at the time of the sale. In the
event that more than 50 percent of the value of a partnership’s assets
consists of intangibles, gain or loss from the sale of the partnership
interest shall be allocated to this state in accordance with the sales
factor of the partnership for its first full tax year immediately
preceding its tax year during which the partnership interest was sold.
7. Interest and dividends are allocable to this state if the
taxpayer’s commercial domicile is in this state.
8. (a) Patent and copyright royalties are allocable to this state:
(1) if and to the extent that the patent or copyright is utilized by the
payer in this state, or (2) if and to the extent that the patent
copyright is utilized by the payer in a state in which the taxpayer is
not taxable and the taxpayer’s commercial domicile is in this state.
(b) A patent is utilized in a state to the extent that it is
employed in production, fabrication, manufacturing, or other processing
in the state or to the extent that a patented product is produced in the
state. If the basis of receipts from patent royalties does not permit
allocation to states or if the accounting procedures do not reflect
states of utilization, the patent is utilized in the state in which the
taxpayer’s commercial domicile is located.
(c) A copyright is utilized in a state to the extent that printing
or other publication originates in the state. If the basis of receipts
from copyright royalties does not permit allocation to states or if the
accounting procedures do not reflect states of utilization, the copyright
is utilized in the state in which the taxpayer’s commercial domicile is
located.
9. All business income shall be apportioned to this state by
multiplying the income by a fraction, the numerator of which is the
property factor plus the payroll factor plus the sales factor, and the
denominator of which is three.
10. The property factor is a fraction, the numerator of which is
the average value of the taxpayer’s real and tangible personal property
owned or rented and used in this state during the tax period and the
denominator of which is the average value of all the taxpayer’s real and
tangible personal property owned or rented and used during the tax period.
11. Property owned by the taxpayer is valued at its original cost.
Property rented by the taxpayer is valued at eight times the net annual
rental rate. Net annual rental rate is the annual rental rate paid by the
taxpayer less any annual rental rate received by the taxpayer from
subrentals.
12. The average value of property shall be determined by averaging
the values at the beginning and ending of the tax period but the tax
administrator may require the averaging of monthly values during the tax
period if reasonably required to reflect properly the average value of
the taxpayer’s property.
13. The payroll factor is a fraction, the numerator of which is the
total amount paid in this state during the tax period by the taxpayer for
compensation and the denominator of which is the total compensation paid
everywhere during the tax period.
14. Compensation is paid in this state if:
(a) the individual’s service is performed entirely within the state;
(b) the individual’s service is performed both within and without
the state, but the service performed without the state is incidental to
the individual’s service within the state; or
(c) some of the service is performed in the state and (1) the base
of operations or, if there is no base of operations, the place from which
the service is directed or controlled is in the state, or (2) the base of
operations or the place from which the service is directed or controlled
is not in any state in which some part of the service is performed, but
the individual’s residence is in this state.
15. The sales factor is a fraction, the numerator of which is the
total sales of the taxpayer in this state during the tax period, and the
denominator of which is the total sales of the taxpayer everywhere during
the tax period.
16. Sales of tangible personal property are in this state if:
(a) the property is delivered or shipped to a purchaser, other than
the United States Government, within this state regardless of the f.b.
point or other conditions of the sale; or
(b) the property is shipped from an office, store, warehouse,
factory, or other place of storage in this state and (1) the purchaser is
the United States Government or (2) the taxpayer is not taxable in the
state of the purchaser.
17. Sales, other than sales of tangible personal property, are in
this state if:
(a) the income-producing activity is performed in this state; or
(b) the income-producing activity is performed both in and outside
this state and a greater proportion of the income-producing activity is
performed in this state than in any other state, based on costs of
performance.
18. If the allocation and apportionment provisions of this Article
do not fairly represent the extent of the taxpayer’s business activity in
this state, the taxpayer may petition for or the tax administrator may
require, in respect to all or any part of the taxpayer’s business
activity, if reasonable:
(a) separate accounting;
(b) the exclusion of any one or more of the factors;
(c) the inclusion of one or more additional factors which will
fairly represent the taxpayer’s business activity in this state; or
(d) the employment of any other method to effectuate an equitable
allocation and apportionment of the taxpayer’s income.
ARTICLE V
ELEMENTS OF SALES AND
USE TAX LAWS1. Tax credit. Each purchaser liable for a use tax on tangible
personal property shall be entitled to full credit for the combined
amount or amounts of legally imposed sales or use taxes paid by him with
respect to the same property to another state and any subdivision
thereof. The credit shall be applied first against the amount of any use
tax due the state, and any unused portion of the credit shall then be
applied against the amount of any use tax due a subdivision.
2. Exemption certificates, vendors may rely. Whenever a vendor
receives and accepts in good faith from a purchaser a resale or other
exemption certificate or other written evidence of exemption authorized
by the appropriate state or subdivision taxing authority, the vendor
shall be relieved of liability for a sales or use tax with respect to the
transaction.ARTICLE VI
THE COMMISSION1. Organization and management. (a) The Multistate Tax Commission
is hereby established. It shall be composed of one “member” from each
party state who shall be the head of the state agency charged with the
administration of the types of taxes to which this compact applies. If
there is more than one such agency the state shall provide by law for the
selection of the commission member from the heads of the relevant
agencies. State law may provide that a member of the commission be
represented by an alternate but only if there is on file with the
commission written notification of the designation and identity of the
alternate. The Attorney General of each party state or his designee, or
other counsel if the laws of the party state specifically provide, shall
be entitled to attend the meetings of the commission, but shall not vote.
Such Attorneys General, designees or other counsel shall receive all
notices of meetings required under paragraph 1 (e) of this Article.
(b) Each party state shall provide by law for the selection of
representatives from its subdivisions affected by this compact to consult
with the commission member from that state.
(c) Each member shall be entitled to one vote. The commission shall
not act unless a majority of the members are present, and no action shall
be binding unless approved by a majority of the total number of members.
(d) The commission shall adopt an official seal to be used as it
may provide.
(e) The commission shall hold an annual meeting and such other
regular meetings as its bylaws may provide and such special meetings as
its Executive Committee may determine. The commission bylaws shall
specify the dates of the annual and any other regular meetings, and shall
provide for the giving of notice of annual, regular and special meetings.
Notices of special meetings shall include the reasons therefor and an
agenda of the items to be considered.
(f) The commission shall elect annually, from among its members, a
Chairman, a Vice Chairman and a Treasurer. The commission shall appoint
an Executive Director who shall serve at its pleasure, and it shall fix
his duties and compensation. The Executive Director shall be secretary of
the commission. The commission shall make provision for the bonding of
such of its officers and employees as it may deem appropriate.
(g) Irrespective of the civil service, personnel or other merit
system laws of any party state, the Executive Director shall appoint or
discharge such personnel as may be necessary for the performance of the
functions of the commission and shall fix their duties and compensation.
The commission bylaws shall provide for personnel policies and programs.
(h) The commission may borrow, accept or contract for the services
of personnel from any state, the United States or any other governmental
entity.
(i) The commission may accept for any of its purposes and functions
any and all donations and grants of money, equipment, supplies, materials
and services, conditional or otherwise, from any governmental entity, and
may utilize and dispose of the same.
(j) The commission may establish one or more offices for the
transacting of its business.
(k) The commission shall adopt bylaws for the conduct of its
business. The commission shall publish its bylaws in convenient form, and
shall file a copy of the bylaws and any amendments thereto with the
appropriate agency or officer in each of the party states.
(L) The commission annually shall make to the Governor and
legislature of each party state a report covering its activities for the
preceding year. Any donation or grant accepted by the commission or
services borrowed shall be reported in the annual report of the
commission, and shall include the nature, amount and conditions, if any,
of the donation, gift, grant or services borrowed and the identity of the
donor or lender. The commission may make additional reports as it may
deem desirable.
2. Committees. (a) To assist in the conduct of its business when
the full commission is not meeting, the commission shall have an
Executive Committee of seven members, including the Chairman, Vice
Chairman, Treasurer and four other members elected annually by the
commission. The Executive Committee, subject to the provisions of this
compact and consistent with the policies of the commission, shall
function as provided in the bylaws of the commission.
(b) The commission may establish advisory and technical committees,
membership on which may include private persons and public officials, in
furthering any of its activities. Such committees may consider any matter
of concern to the commission, including problems of special interest to
any party state and problems dealing with particular types of taxes.
(c) The commission may establish such additional committees as its
bylaws may provide.
3. Powers. In addition to powers conferred elsewhere in this
compact, the commission shall have power to:
(a) Study state and local tax systems and particular types of state
and local taxes.
(b) Develop and recommend proposals for an increase in uniformity
or compatibility of state and local tax laws with a view toward
encouraging the simplification and improvement of state and local tax law
and administration.
(c) Compile and publish information as in its judgment would assist
the party states in implementation of the compact and taxpayers in
complying with state and local tax laws.
(d) Do all things necessary and incidental to the administration of
its functions pursuant to this compact.
4. Finance. (a) The commission shall submit to the Governor or
designated officer or officers of each party state a budget of its
estimated expenditures for such period as may be required by the laws of
that state for presentation to the legislature thereof.
(b) Each of the commission’s budgets of estimated expenditures
shall contain specific recommendations of the amounts to be appropriated
by each of the party states. The total amount of appropriations requested
under any such budget shall be apportioned among the party states as
follows: one-tenth in equal shares; and the remainder in proportion to
the amount of revenue collected by each party state and its subdivisions
from income taxes, capital stock taxes, gross receipts taxes, sales and
use taxes. In determining such amounts, the commission shall employ such
available public sources of information as, in its judgment, present the
most equitable and accurate comparisons among the party states. Each of
the commission’s budgets of estimated expenditures and requests for
appropriations shall indicate the sources used in obtaining information
employed in applying the formula contained in this paragraph.
(c) The commission shall not pledge the credit of any party state.
The commission may meet any of its obligations in whole or in part with
funds available to it under paragraph 1 (i) of this Article: provided
that the commission takes specific action setting aside such funds prior
to incurring any obligation to be met in whole or in part in such manner.
Except where the commission makes use of funds available to it under
paragraph 1 (i), the commission shall not incur any obligation prior to
the allotment of funds by the party states adequate to meet the same.
(d) The commission shall keep accurate accounts of all receipts and
disbursements. The receipts and disbursements of the commission shall be
subject to the audit and accounting procedures established under its
bylaws. All receipts and disbursements of funds handled by the commission
shall be audited yearly by a certified or licensed public accountant and
the report of the audit shall be included in and become part of the
annual report of the commission.
(e) The accounts of the commission shall be open at any reasonable
time for inspection by duly constituted officers of the party states and
by any persons authorized by the commission.
(f) Nothing contained in this Article shall be construed to prevent
commission compliance with laws relating to audit or inspection of
accounts by or on behalf of any government contributing to the support of
the commission.ARTICLE VII
UNIFORM REGULATIONS AND
FORMS1. Whenever any two or more party states, or subdivisions of party
states, have uniform or similar provisions of law relating to an income
tax, capital stock tax, gross receipts tax, sales or use tax, the
commission may adopt uniform regulations for any phase of the
administration of such law, including assertion of jurisdiction to tax,
or prescribing uniform tax forms. The commission may also act with
respect to the provisions of Article IV of this compact.
2. Prior to the adoption of any regulation, the commission shall:
(a) As provided in its bylaws, hold at least one public hearing on
due notice to all affected party states and subdivisions thereof and to
all taxpayers and other persons who have made timely request of the
commission for advance notice of its regulation-making proceedings.
(b) Afford all affected party states and subdivisions and
interested persons an opportunity to submit relevant written data and
views, which shall be considered fully by the commission.
3. The commission shall submit any regulations adopted by it to the
appropriate officials of all party states and subdivisions to which they
might apply. Each such state and subdivision shall consider any such
regulation for adoption in accordance with its own laws and procedures.ARTICLE VIII
INTERSTATE AUDITS1. This Article shall be in force only in those party states that
specifically provide therefor by statute.
2. Any party state or subdivision thereof desiring to make or
participate in an audit of any accounts, books, papers, records or other
documents may request the commission to perform the audit on its behalf.
In responding to the request, the commission shall have access to and may
examine, at any reasonable time, such accounts, books, papers, records,
and other documents and any relevant property or stock of merchandise.
The commission may enter into agreements with party states or their
subdivisions for assistance in performance of the audit. The commission
shall make charges, to be paid by the state or local government or
governments for which it performs the service, for any audits performed
by it in order to reimburse itself for the actual costs incurred in
making the audit.
3. The commission may require the attendance of any person within
the state where it is conducting an audit or part thereof at a time and
place fixed by it within such state for the purpose of giving testimony
with respect to any account, book, paper, document, other record,
property or stock of merchandise being examined in connection with the
audit. If the person is not within the jurisdiction, he may be required
to attend for such purpose at any time and place fixed by the commission
within the state of which he is a resident: provided that such state has
adopted this Article.
4. The commission may apply to any court having power to issue
compulsory process for orders in aid of its powers and responsibilities
pursuant to this Article and any and all such courts shall have
jurisdiction to issue such orders. Failure of any person to obey any such
order shall be punishable as contempt of the issuing court. If the party
or subject matter on account of which the commission seeks an order is
within the jurisdiction of the court to which application is made, such
application may be to a court in the state or subdivision on behalf of
which the audit is being made or a court in the state in which the object
of the order being sought is situated. The provisions of this paragraph
apply only to courts in a state that has adopted this Article.
5. The commission may decline to perform any audit requested if it
finds that its available personnel or other resources are insufficient
for the purpose or that, in the terms requested, the audit is
impracticable of satisfactory performance. If the commission, on the
basis of its experience, has reason to believe that an audit of a
particular taxpayer, either at a particular time or on a particular
schedule, would be of interest to a number of party states or their
subdivisions, it may offer to make the audit or audits, the offer to be
contingent on sufficient participation therein as determined by the
commission.
6. Information obtained by any audit pursuant to this Article shall
be confidential and available only for tax purposes to party states,
their subdivisions or the United States. Availability of information
shall be in accordance with the laws of the states or subdivisions on
whose account the commission performs the audit, and only through the
appropriate agencies or officers of such states or subdivisions. Nothing
in this Article shall be construed to require any taxpayer to keep
records for any period not otherwise required by law.
7. Other arrangements made or authorized pursuant to law for
cooperative audit by or on behalf of the party states or any of their
subdivisions are not superseded or invalidated by this Article.
8. In no event shall the commission make any charge against a
taxpayer for an audit.
9. As used in this Article, “tax,” in addition to the meaning
ascribed to it in Article II, means any tax or license fee imposed in
whole or in part for revenue purposes.
ARTICLE IX
ARBITRATION1. Whenever the commission finds a need for settling disputes
concerning apportionment and allocations by arbitration, it may adopt a
regulation placing this Article in effect, notwithstanding the provisions
of Article VII.
2. The commission shall select and maintain an arbitration panel
composed of officers and employees of state and local governments and
private persons who shall be knowledgeable and experienced in matters of
tax law and administration.
3. Whenever a taxpayer who has elected to employ Article IV, or
whenever the laws of the party state or subdivision thereof are
substantially identical with the relevant provisions of Article IV, the
taxpayer, by written notice to the commission and to each party state or
subdivision thereof that would be affected, may secure arbitration of an
apportionment or allocation, if he is dissatisfied with the final
administrative determination of the tax agency of the state or
subdivision with respect thereto on the ground that it would subject him
to double or multiple taxation by two or more party states or
subdivisions thereof. Each party state and subdivision thereof hereby
consents to the arbitration as provided herein, and agrees to be bound
thereby.
4. The arbitration board shall be composed of one person selected
by the taxpayer, one by the agency or agencies involved, and one member
of the commission’s arbitration panel. If the agencies involved are
unable to agree on the person to be selected by them, such person shall
be selected by lot from the total membership of the arbitration panel.
The two persons selected for the board in the manner provided by the
foregoing provisions of this paragraph shall jointly select the third
member of the board. If they are unable to agree on the selection, the
third member shall be selected by lot from among the total membership of
the arbitration panel. No member of a board selected by lot shall be
qualified to serve if he is an officer or employee or is otherwise
affiliated with any party to the arbitration proceeding. Residence within
the jurisdiction of a party to the arbitration proceeding shall not
constitute affiliation within the meaning of this paragraph.
5. The board may sit in any state or subdivision party to the
proceeding, in the state of the taxpayer’s incorporation, residence or
domicile, in any state where the taxpayer does business, or in any place
that it finds most appropriate for gaining access to evidence relevant to
the matter before it.
6. The board shall give due notice of the times and places of its
hearings. The parties shall be entitled to be heard, to present evidence,
and to examine and cross-examine witnesses. The board shall act by
majority vote.
7. The board shall have power to administer oaths, take testimony,
subpoena and require the attendance of witnesses and the production of
accounts, books, papers, records, and other documents, and issue
commissions to take testimony. Subpoenas may be signed by any member of
the board. In case of failure to obey a subpoena, and upon application by
the board, any judge of a court of competent jurisdiction of the state in
which the board is sitting or in which the person to whom the subpoena is
directed may be found may make an order requiring compliance with the
subpoena, and the court may punish failure to obey the order as a
contempt. The provisions of this paragraph apply only in states that have
adopted this Article.
8. Unless the parties otherwise agree the expenses and other costs
of the arbitration shall be assessed and allocated among the parties by
the board in such manner as it may determine. The commission shall fix a
schedule of compensation for members of arbitration boards and of other
allowable expenses and costs. No officer or employee of a state or local
government who serves as a member of a board shall be entitled to
compensation therefor unless he is required on account of his service to
forego the regular compensation attaching to his public employment, but
any such board member shall be entitled to expenses.
9. The board shall determine the disputed apportionment or
allocation and any matters necessary thereto. The determinations of the
board shall be final for purposes of making the apportionment or
allocation, but for no other purpose.
10. The board shall file with the commission and with each tax
agency represented in the proceeding: the determination of the board; the
board’s written statement of its reasons therefor; the record of the
board’s proceedings; and any other documents required by the arbitration
rules of the commission to be filed.
11. The commission shall publish the determinations of boards
together with the statements of the reasons therefor.
12. The commission shall adopt and publish rules of procedure and
practice and shall file a copy of such rules and of any amendment thereto
with the appropriate agency or officer in each of the party states.
13. Nothing contained herein shall prevent at any time a written
compromise of any matter or matters in dispute, if otherwise lawful, by
the parties to the arbitration proceeding.
ARTICLE X
ENTRY INTO FORCE AND
WITHDRAWAL1. This compact shall enter into force when enacted into law by any
seven states. Thereafter, this compact shall become effective as to any
other state upon its enactment thereof. The commission shall arrange for
notification of all party states whenever there is a new enactment of the
compact.
2. Any party state may withdraw from this compact by enacting a
statute repealing the same. No withdrawal shall affect any liability
already incurred by or chargeable to a party state prior to the time of
such withdrawal.
3. No proceeding commenced before an arbitration board prior to the
withdrawal of a state and to which the withdrawing state or any
subdivision thereof is a party shall be discontinued or terminated by the
withdrawal, nor shall the board thereby lose jurisdiction over any of the
parties to the proceeding necessary to make a binding determination
therein.
ARTICLE XI
EFFECT ON OTHER LAWS AND
JURISDICTIONNothing in this compact shall be construed to:
(a) Affect the power of any state or subdivision thereof to fix
rates of taxation, except that a party state shall be obligated to
implement Article III 2 of this compact.
(b) Apply to any tax or fixed fee imposed for the registration of a
motor vehicle or any tax on motor fuel, other than a sales tax: provided
that the definition of “tax” in Article VIII 9 may apply for the purposes
of that Article and the commission’s powers of study and recommendation
pursuant to Article VI 3 may apply.
(c) Withdraw or limit the jurisdiction of any state or local court
or administrative officer or body with respect to any person, corporation
or other entity or subject matter, except to the extent that such
jurisdiction is expressly conferred by or pursuant to this compact upon
another agency or body.
(d) Supersede or limit the jurisdiction of any court of the United
States.ARTICLE XII
CONSTRUCTION AND SEVERABILITYThis compact shall be liberally construed so as to effectuate the
purposes thereof. The provisions of this compact shall be severable and
if any phrase, clause, sentence or provision of this compact is declared
to be contrary to the constitution of any state or of the United States
or the applicability thereof to any government, agency, person or
circumstance is held invalid, the validity of the remainder of this
compact and the applicability thereof to any government, agency, person
or circumstance shall not be affected thereby. If this compact shall be
held contrary to the constitution of any state participating therein, the
compact shall remain in full force and effect as to the remaining party
states and in full force and effect as to the state affected as to all
severable matters.
___________________________________________________________________________
___[1967 c.242 §1; 1989 c.625 §75] The
Director of the Department of Revenue shall constitute the member of the
Multistate Tax Commission who shall represent Oregon on such multistate
commission. If, at any time and for any reason, the director is unable to
carry out any duty or activity required of a member of the Multistate Tax
Commission, the director shall be represented by an alternate appointed
by the director. The director shall at all times maintain on file with
the Multistate Tax Commission written notification of the designation and
identity of the alternate. [1967 c.242 §3; 1969 c.520 §28]The Governor of Oregon shall
appoint one person from the City of Portland, and from time to time one
person from any other municipality or political subdivision imposing any
tax defined in Article II of the Multistate Tax Compact, to consult
regularly with the Director of the Department of Revenue of Oregon, or
the alternate of the director, in accordance with Article VI, section 1
(b) of the compact. [1967 c.242 §4]Article VIII of the Multistate Tax Compact relating to
interaudits shall be in force in and with respect to this state. [1967
c.242 §6]Any alternative dispute resolution process
undertaken under the authority of the Multistate Tax Commission need not
comply with and is not subject to ORS chapter 36. [1999 c.224 §6] (1) There is
created in the General Fund of the State Treasury the Multistate Tax
Commission Revolving Account. Notwithstanding any other law, all moneys
received by the Department of Revenue as a result of audits performed by
the Multistate Tax Commission shall be deposited in the Multistate Tax
Commission Revolving Account and are continuously appropriated to the
Department of Revenue for expenses of the Multistate Tax Commission. As
of June 30 of each year, all moneys in excess of $150,000 in this account
shall be forwarded to the State Treasurer for deposit as miscellaneous
revenues of the General Fund of the State of Oregon.
(2) The Department of Revenue may transfer $5,000 from the funds
appropriated in section 1, chapter 187, Oregon Laws 1975, to the
Multistate Tax Commission Revolving Account. Such funds are continuously
appropriated for reimbursement to the Multistate Tax Commission for
out-of-state corporation audits made for the State of Oregon. [1975 c.187
§4; 1993 c.726 §5; 2001 c.28 §1; 2005 c.94 §24]CHARITABLE CHECKOFF PROGRAM As used in ORS
305.690 to 305.753, unless the context otherwise requires:
(1) “Biennial years” means the two income tax years of individual
taxpayers that begin in the two calendar years immediately following the
calendar year in which a list is certified under ORS 305.715.
(2) “Commission” means the Oregon Charitable Checkoff Commission.
(3) “Department” means the Department of Revenue.
(4) “Internal Revenue Code” means the federal Internal Revenue Code
as amended and in effect on December 31, 2004. [1989 c.987 §2; 1993 c.726
§6; 1995 c.556 §32; 1997 c.839 §43; 1999 c.90 §30; 2001 c.660 §25; 2003
c.77 §3; 2005 c.832 §15](1) There is created the Oregon
Charitable Checkoff Commission, consisting of five voting members
appointed by the Governor and as nonvoting members, one Representative
appointed by the Speaker of the House of Representatives and one Senator
appointed by the President of the Senate. One appointment of a voting
member shall be based on recommendation of the Speaker of the House of
Representatives and one appointment shall be made based on recommendation
of the President of the Senate.
(2) The term of office of each voting member is four years, but a
member serves at the pleasure of the Governor. The term of office of a
nonvoting member is two years. Before the expiration of the term of a
voting member, the Governor shall appoint a successor whose term begins
on January 1 next following. A member is eligible for reappointment. If
there is a vacancy in the voting membership for any cause, the Governor
shall make an appointment to become immediately effective for the
unexpired term. The Speaker and President, respectively, shall make any
appointment to fill a vacancy in the nonvoting membership.
(3) Individuals appointed members of the commission shall be
citizens of Oregon well qualified by experience to make policy and
recommendations in areas of concern to the commission and otherwise to
perform the duties of the office. Members of the commission shall be
diversified in their charitable interests. At the time of appointment,
the voting members shall not have any direct or indirect financial
interest in any checkoff proposal currently in law or under consideration
by the commission. If a conflict arises after a member’s appointment, the
member shall declare the conflict and abstain from deliberations and
voting on the proposal.
(4) A voting member of the commission is entitled to compensation
and expenses as provided in ORS 292.495. The nonvoting legislative
members shall be entitled to compensation and expenses under ORS 171.072.
[1989 c.987 §3]
(1) The Oregon Charitable Checkoff Commission shall select from its
members a chairperson, a vice chairperson and other officers as
necessary. The chairperson or vice chairperson shall serve until the
expiration of the term of the chairperson or vice chairperson as a member
of the commission, or until the chairperson or vice chairperson resigns
or is removed in accordance with subsection (5) of this section.
(2) The commission shall meet at least once in every even-numbered
calendar year at a place, day and hour determined by the commission. The
commission also may meet at other times and places specified by the call
of the chairperson or of a majority of the members of the commission.
Regular and special meetings of the commission may be convened upon
notice in the manner required by ORS 192.640.
(3) A majority of the members of the commission constitute a quorum
for the transaction of business.
(4) In addition to the seven members of the commission, the
Director of the Department of Revenue shall be a nonvoting, ex officio
member. The director shall not be entitled to compensation and expenses
as provided under ORS 292.495.
(5) If the chairperson or vice chairperson resigns or is removed
from office, a new chairperson or vice chairperson shall be elected by
the commission. Until a new chairperson is elected, the vice chairperson
shall act as chairperson.
(6) The commission by a three-fifths vote of the members may
declare the office of chairperson or vice chairperson vacant if the
chairperson or vice chairperson is unavailable or otherwise unable to
perform the duties of the office satisfactorily. [1989 c.987 §§5,7] (1) The chairperson shall be the
chief executive officer of the Oregon Charitable Checkoff Commission. The
chairperson shall be responsible for the expenditure of all commission
funds and shall sign all vouchers for obligations incurred or for
expenditures authorized by the commission.
(2) The chairperson, on behalf of the commission, shall execute all
agreements, contracts or other documents entered into or approved by the
commission.
(3) Subject to any applicable provisions of the State Personnel
Relations Law and the approval of the commission, the chairperson may
employ or remove executive, technical and expert assistants and other
employees as needed and fix their compensation. However, executive,
technical and expert assistants shall be in the unclassified service for
purposes of the State Personnel Relations Law.
(4) The vice chairperson shall perform the duties assigned by the
chairperson and, in accordance with the rules of the commission, shall
perform the duties and have the powers of the chairperson when the
chairperson is temporarily unable to perform the duties of the
chairperson. [1989 c.987 §6](1) The
Department of Revenue shall notify the Oregon Charitable Checkoff
Commission of the number of lines available for the material described in
ORS 305.745 (2) without adding a page to the various individual tax forms
for full-year residents, nonresidents and part-year residents. The
commission shall limit the number of entities to be listed on the form to
conform to the department’s notice unless it determines that the number
of eligible entities justifies adding a page to the form.
(2) Any new entity added to the list must, in the judgment of the
commission, have a high probability of meeting the requirement in ORS
305.720 (5). [1989 c.987 §7a]The Oregon Charitable Checkoff Commission shall:
(1) Determine if a charitable or governmental entity is qualified
under ORS 305.720, for the biennial years, for listing on the Oregon
individual income tax return to receive contributions by means of
checkoff, as described under and subject to ORS 305.710 and 305.745.
(2) Certify in 1990, and certify in each even-numbered calendar
year thereafter, to the Department of Revenue a list of charitable and
governmental entities to be listed on the Oregon individual income tax
return to receive contributions by means of checkoff for the biennial
years indicated in the certification, as described under and subject to
ORS 305.710 and 305.745. [1989 c.987 §8]
Subject to ORS 305.710 and 305.745, an entity qualifies for listing on
the Oregon individual income tax return to receive contributions by means
of checkoff if:
(1) The entity supports private charitable causes or engages in
public activities that are consistent with policies and programs of the
state and:
(a) Checkoff resources are used to augment existing programs or
provide new funding to related activities of proven value. Checkoff funds
are not to be used to meet the administrative expenses of the entity;
(b) Programs funded by checkoff resources must result in
substantial and direct benefits to the human and natural resources of the
state that the Oregon Charitable Checkoff Commission determines are
unlikely to occur under existing public and private programs; and
(c) After checkoff resources are received by the entity, the entity
shows a pattern over several years of increasing its total revenues from
other than checkoff sources or reaches the level where no more than 50
percent of its revenues are from checkoff sources.
(2) The entity is qualified to receive contributions that are tax
deductible under the following:
(a) Section 170 of the Internal Revenue Code (relating to
contributions and gifts to charitable and governmental entities).
(b) Section 501(k) of the Internal Revenue Code (relating to
contributions to certain organizations providing child care).
(c) Section 7871 of the Internal Revenue Code (relating to
contributions to Indian tribal governments).
(d) Any other federal law allowing a deduction from federal
individual income tax for charitable contributions to an entity
classified by rule of the Department of Revenue as being an entity
belonging to the general class described in paragraphs (a) to (c) of this
subsection.
(3) The entity makes application for listing within the time and in
the manner prescribed by ORS 305.725.
(4) The entity files a financial report, and other information,
with the commission as described under ORS 305.730.
(5) The entity received $50,000 or more in checkoff contributions
in at least one of the two tax years immediately preceding the tax year
for which it is to be listed on the Oregon income tax return. This
subsection does not apply if the entity has not been included on the
Oregon personal income tax return for each of the two tax years
immediately preceding the tax year for which determination for purposes
of this subsection is being made. [1989 c.987 §9] (1) Each entity desiring to receive
contributions by means of checkoff on the Oregon individual income tax
return shall make initial application to the Oregon Charitable Checkoff
Commission not later than July 1 of each even-numbered calendar year. The
application shall contain or be accompanied by:
(a) The name of the entity.
(b) The address of the principal place of business of the entity
and the name of the person, officer or employee to whom the moneys
contributed by means of checkoff are to be remitted pursuant to ORS
305.747.
(c) The names and personal addresses of the principals of the
entity.
(d) The name and personal address of a person who is a principal in
the solicitation activities for the entity.
(e) Evidence satisfactory to the commission that contributions to
the entity qualify for tax deduction under section 170 of the Internal
Revenue Code or other law listed under ORS 305.720 (2) or, in the case of
an application for instruction listing, ORS 305.727. This evidence may,
but need not, take the form of an Internal Revenue Service ruling, a
listing of the entity on the list published by the Internal Revenue
Service listing organizations qualified to receive tax deductible
contributions or an answer to an inquiry as to the status of the entity
addressed to the Commissioner of Internal Revenue.
(f) If applicable, evidence that ORS 128.610 to 128.750 has been
complied with.
(g) A financial report, and other information, as described in ORS
305.730.
(2) If, at any time, there is a change of person, officer or
employee to whom contributions received by means of checkoff are to be
remitted under ORS 305.747, the governing body of the entity shall give
notice to the Department of Revenue. The notice shall contain the name of
the entity and the name of the new person, officer or employee to whom
contributions shall be remitted. [1989 c.987 §10; 1991 c.532 §24; 1999
c.1032 §3] (1) In addition to the
opportunity to apply to the Oregon Charitable Checkoff Commission for
listing on the Oregon individual tax return forms under ORS 305.725, an
entity may apply to the commission for listing in the Department of
Revenue instructions and eligibility for tax return checkoff contribution
as provided in this section.
(2) In order to qualify for instruction listing, the entity must
apply to the commission in the manner in which an entity applies for
listing on the individual tax forms under ORS 305.725.
(3) In order to qualify for instruction listing, the entity must
meet the qualifications described in ORS 305.720, collect 10,000 or more
signatures from electors of this state attesting that the electors
support the entity qualifying for instruction listing and be:
(a) The Oregon Veterans’ Home;
(b) A nonprofit organization described in section 501(c)(3) of the
Internal Revenue Code with a gross income of at least $1 million for the
year prior to application; or
(c) The central office for a group of affiliated nonprofit
organizations with a collective gross income of at least $1 million in
the year prior to the year of application.
(4) The commission shall review applications and approve those that
meet the qualifications of ORS 305.720 and this section. An entity that
is approved by the commission shall thereafter qualify for instruction
listing for six years and thereafter must reapply under this section for
continued listing in additional six-year periods.
(5) The commission shall certify those entities that the commission
has approved in the interim since the last preceding certification to the
Department of Revenue for listing in the instructions to the forms
described in ORS 305.710.
(6) The department shall include in the instructions to the forms
described in ORS 305.710 a list of entities that have been certified by
the commission under this section as of the date the instructions for the
forms must be prepared.
(7) The department shall cause a line to be included on the Oregon
individual tax return forms following the listing of the entities
described in ORS 305.715 (2). The line may be used by a taxpayer to
designate an entity that has qualified for instruction listing under this
section as the recipient of a checkoff contribution by the taxpayer. The
space for designation shall also provide for checkoff boxes in the amount
of $1, $5, $10 or other dollar amounts.
(8) Amounts contributed by charitable checkoff to an
instruction-listed entity shall be subject to and distributed as provided
in ORS 305.747. [1999 c.1032 §2; 2001 c.677 §1] (1) Each entity desiring to be
listed on the Oregon individual income tax return in order to receive
contributions by means of checkoff for the biennial years shall file a
financial report with the Oregon Charitable Checkoff Commission no later
than July 1 of 1990, or July 1 of each even-numbered year thereafter.
(2) The financial report shall contain, in detail:
(a) The amount of funds received from contributions made by means
of checkoff.
(b) The disposition of the funds received from contributions made
by means of checkoff.
(3) If required by the commission by rule, the entity shall also
file with the commission its budget, financial statements or other
documents or information needed by the commission to determine the use of
funds received through checkoff.
(4) All information required by this section shall be as of the
close of each fiscal year of the two fiscal years of the entity that
ended during the 12-month period ending prior to July 1 of the
even-numbered calendar year. [1989 c.987 §11]
(1) Upon determination, pursuant to initial application, that an entity
qualifies for listing on the Oregon individual income tax return to
receive contributions by means of checkoff, the Oregon Charitable
Checkoff Commission, subject to ORS 305.710, shall cause the name of the
entity to be included on the list.
(2) If the commission determines that the entity is not qualified
to be listed, the commission shall give notice in the manner provided
under ORS 183.415, as applicable, and ORS 305.740 (3) shall apply. [1989
c.987 §12] (1) Prior to the end
of 1990 and prior to the end of each even-numbered calendar year
thereafter, and subject to subsection (2) of this section, the Oregon
Charitable Checkoff Commission shall examine the list of entities
included on the Oregon personal income tax return for the tax year
beginning in the calendar year immediately preceding and shall determine
if each entity listed is qualified under ORS 305.710 and 305.720 to be
listed on the return to receive contributions by means of checkoff for
the ensuing biennial years.
(2)(a) The Department of Revenue shall determine for each tax year
if each entity listed for checkoff on the return for the preceding tax
year meets the criteria under ORS 305.720 (5) and shall notify the
commission, if and when appropriate. In determining the amount received
in contributions from checkoffs for an entity for a particular tax year:
(A) For purposes of meeting the $50,000 minimum contribution, the
amount received in contributions from checkoffs in the amount shown in
the department’s financial statement for the fiscal year shall be counted.
(B) The amount of receipts shall not be reduced by the amount of
administrative expense referred to in ORS 305.747.
(b) The determination of the department made under paragraph (a) of
this subsection is final and may not be appealed. Notwithstanding
subsection (1) of this section, an entity that has not met the criteria
of ORS 305.720 (5) shall not be listed on the return for checkoff.
(3)(a) If the commission, for any reason other than that
contributions by means of checkoff did not reach the amount required
under ORS 305.720 (5), determines that an entity included on the list
certified under ORS 305.715 (2) for the prior biennial years is not
qualified to be included, or that an entity making application is not
qualified to be included, or is not included because of determinations
under ORS 305.710, on the list for the ensuing biennial years, the
commission shall so order.
(b) The commission shall serve upon the entity, either by personal
service or by certified mail, return receipt requested, the order issued
under paragraph (a) of this subsection. The order shall comply with the
applicable notice requirements of ORS 183.415.
(c) The entity or person or persons to whom the order is directed
shall have 20 days from the date of personal service or mailing of the
notice in which to make written application to the commission for a
contested case hearing to be held in accordance with ORS 183.415 to
183.500 before the commission or the designee of the commission. In any
hearing before the designee of the commission, the designee is authorized
to issue the final order in the matter.
(d) Upon failure to request a contested case hearing within the
time specified, the order shall become final.
(e) Appeal may be taken from a final order as specified under ORS
183.480 to 183.497.
(f) A final order issued by the commission, the designee of the
commission, the Court of Appeals or the Oregon Supreme Court determining
that an entity be included on the list certified under ORS 305.715 (2)
may require only that the entity be included on the list next certified
after the effective date of the final order. [1989 c.987 §13; 2001 c.114
§6] (1) Upon
receipt of the list certified by the Oregon Charitable Checkoff
Commission under ORS 305.715 (2), the Department of Revenue shall cause
the name of each entity so listed to be included on the Oregon individual
income tax return forms prepared for the biennial years as certified.
(2) Individual taxpayers who file an Oregon income tax return and
who will receive a tax refund from the department may designate that a
contribution be made to one or more entities listed. Designation shall be
made by marking the appropriate box which the department shall cause to
be printed on the return form. For each entity, the space for designating
the contribution shall provide for checkoff boxes in the amount of $1,
$5, $10 or other dollar amount.
(3) Overpayments of tax that are insufficient, due to ORS 293.250
or otherwise, to satisfy the total amount of checkoffs designated on a
tax return under subsection (2) of this section and under statute other
than ORS 305.690 to 305.753 shall be allocated among the entities
designated on a pro rata basis. [1989 c.987 §14](1) Amounts equal to the amounts checked off under ORS
305.745 shall be remitted by the Department of Revenue to the State
Treasurer who shall deposit the amounts in a suspense account established
under ORS 293.445.
(2)(a) Of the amounts remitted and deposited under subsection (1)
of this section or remitted and deposited under ORS 305.749 (1), a
portion is continuously appropriated for use in reimbursing the General
Fund for costs paid or incurred by the Oregon Charitable Checkoff
Commission in administering the checkoff programs established under ORS
305.690 to 305.753. No more than one percent of the moneys generated by
the checkoff programs per fiscal year ending June 30, 1990, or per any
fiscal year thereafter, is appropriated under this paragraph.
(b) Of the amounts remitted and deposited under subsection (1) of
this section, a portion is continuously appropriated for use in
reimbursing the General Fund for costs paid or incurred by the department
in administering the checkoff program established under ORS 305.690 to
305.753. The department shall adopt by rule a formula or other method of
determining the cost of administering each checkoff program. Each program
shall be charged the cost of administration not to exceed 10 percent of
the amount received in checkoff contributions.
(c) Moneys appropriated under this subsection shall be transferred
to the General Fund on a quarterly basis.
(3) The records of the department shall reflect the amount that the
department has credited to each entity less administrative expenses.
Subject to ORS 305.745 (3), the amount credited to each entity shall be
equal to the amount checked off for that entity under ORS 305.745 less
administrative expenses. The net amount of moneys credited to an entity
shall be transferred by the department to the entity, as specified by
law, on a periodic basis, or is continuously appropriated to the
department for payment to the entity and the department shall pay and
remit the net amount credited to the entity, without interest, to the
entity on a periodic basis. The department shall adopt rules governing
the transferring or remitting of checkoff moneys to the entities for
which the amounts were checked off. The rules shall specify the time, no
less often than quarterly, that the moneys are to be transferred or
remitted to the entities by the department. [1989 c.987 §15; 1995 c.79
§114]Except as provided in ORS 305.690
to 305.753 and as otherwise specifically provided, the following are
applicable to the various checkoff programs established under ORS 316.491
and 496.380 and ORS chapter 316:
(1) Subject to subsection (4) of this section, the dollar amounts
of contributions made by taxpayer checkoff on Oregon tax returns shall be
remitted by the Department of Revenue to the State Treasurer, who shall
deposit them to a suspense account established under ORS 293.445.
(2) Of the contributions so deposited, a portion is continuously
appropriated for use to reimburse the General Fund for costs incurred in
administering the various checkoff programs. No more than 10 percent of
the moneys generated by each checkoff program per fiscal year ending June
30 may be appropriated under this subsection.
(3) The remainder of the contributions shall be credited by the
department to each checkoff program in proportion to the total amounts
checked off for the tax year, the proportions to be determined on the
basis of tax returns processed as of the June 30 following the tax year.
The amounts so credited to each of the checkoff programs are continuously
appropriated to the department for payment to the checkoff designee, or
shall be transferred by the department to the checkoff designee, as
specified under the law governing the particular checkoff program. The
department may adopt rules governing the crediting and payment or
transfer of checkoff moneys. In addition to any other provision, if
adopted, the rules shall specify the time that the contributions to a
program so credited are to be paid or transferred by the department.
(4)(a) Space for designating the dollar amount of a contribution
made to each checkoff program shall be printed on the Oregon tax return.
The space shall provide for checkoff boxes for the program in the amounts
of $1, $5, $10 or other dollar amount.
(b) Overpayments of tax that are insufficient, due to ORS 293.250
or otherwise, to satisfy the total amount of checkoffs designated on a
tax return shall be allocated among the designees on a pro rata basis as
provided under ORS 305.745 (3).
(5)(a) If, as of June 30 of the calendar year immediately following
the calendar year in which a particular tax year begins, the department
determines that the total amount checked off for that tax year for a
checkoff program is $50,000 or less, the department shall notify a person
administering the program or other appropriate person.
(b) If, as determined by the department under paragraph (a) of this
subsection, the total amount checked off for a particular checkoff
program is $50,000 or less for each year in a period of two consecutive
tax years, a checkoff line and appropriate box for that program shall not
be provided on the Oregon individual tax return for the tax year
immediately following the later year of the two-year period nor for any
tax year thereafter, except as otherwise provided by law.
(c) As used in this subsection, “total amount checked off” means
the total amount checked off by taxpayers as reflected by tax returns for
the tax year processed as of June 30 before any deduction for
administrative costs as required under subsection (2) of this section has
occurred but after any proration under subsection (4) of this section.
[Formerly 305.835; 1993 c.797 §29; 1995 c.79 §116; 2005 c.94 §25; 2005
c.836 §13]Note: Section 14, chapter 836, Oregon Laws 2005, provides:
Sec. 14. Section 11 of this 2005 Act [316.491] and the amendments
to ORS 305.749 and 305.753 by sections 12 and 13 of this 2005 Act apply
to biennial years, as defined in ORS 305.690, beginning on or after the
effective date of this 2005 Act [November 4, 2005]. [2005 c.836 §14] The Department of Revenue shall adopt such rules as
are necessary for the operation of the Oregon Charitable Checkoff
Commission and the administration of ORS 305.690 to 305.753. The
commission may recommend that the department adopt rules under this
section. [1993 c.726 §8](1) The State Treasurer may solicit and accept from private
and public sources and cause to be credited and paid to any entity gifts,
grants and other donations, in money or otherwise, if the entity is
currently listed or entitled to be listed on the Oregon tax return for
checkoff.
(2) In accordance with ORS chapter 183, the Department of Revenue
may adopt rules to carry out the purposes of ORS 305.690 to 305.753.
(3) Except as provided in ORS 305.749, ORS 305.690 to 305.753 do
not apply to the Nongame Wildlife Fund established under ORS 496.385, the
Alzheimer’s Disease Research Fund established under section 3, chapter
902, Oregon Laws 1987, the subaccount created pursuant to section 36 (2),
chapter 1084, Oregon Laws 1999, or its successor, the Oregon Military
Emergency Financial Assistance Fund established under ORS 396.364 or
other checkoff program established by statute other than ORS 305.690 to
305.753. [1989 c.987 §16; 1993 c.209 §21; 1993 c.797 §26; 1995 c.54 §19;
1995 c.79 §117; 1999 c.1084 §39; 2005 c.94 §26; 2005 c.836 §12]Note: See note under 305.749.REFUNDSIn lieu of the procedure provided in certain revenue laws for
the retaining of a working balance by the Department of Revenue from
which refunds may be made, the Department of Revenue may, in accordance
with the requirement of the Secretary of State, pay over all funds
received under any of the revenue laws to the State Treasurer and write
refund checks upon the State Treasurer for refunds authorized by law.
[Formerly 306.270]
(1) At the election of the taxpayer, a refund of personal income tax
shall be made by direct deposit into an account designated by the
taxpayer at a bank or other financial institution.
(2) The election shall be made on a form prescribed by the
Department of Revenue and filed with the taxpayer’s tax return for the
tax year or at such other time and manner as the department may prescribe
by rule. [2001 c.111 §2] In a proceeding involving
the validity of any law whereby taxes assessed or imposed have been
collected and received by the state, acting through any department or
agency thereof, and paid into the State Treasury, if the court of last
resort holds the law or any part thereof invalid, and the time limit for
any further proceeding to sustain the validity of the law, or the part
thereof affected, has expired, and if there is no other statute
authorizing refund thereof, all taxes collected and paid under the law or
part thereof invalidated, in or after the year in which the action
attacking the validity of the same was instituted, shall be refunded and
repaid in the manner provided in ORS 305.770 to 305.785. [Formerly
306.280; 2003 c.46 §6]The department or agency of the state charged with
the duty of administering the law so invalidated, either wholly or in
part, shall prepare a detailed report, listing by name, address and
amount of payment each taxpayer who paid an invalid tax under the law.
The Oregon Department of Administrative Services shall issue a warrant in
favor of each taxpayer listed therein, in the amount so reported, and
shall forward the warrant to the taxpayer at the address shown in the
report. The State Treasurer shall pay the warrants from the General Fund
in the usual manner when and as presented. Warrants refunding invalid
taxes shall be payable to the taxpayers named in the report required by
this section or to their heirs, administrators, executors or assigns.
[Formerly 306.290; 1975 c.614 §8] If an appeal
from or petition for certiorari to review a decision of the Supreme Court
of Oregon, holding a tax law or any part thereof invalid, is taken to the
Supreme Court of the United States and that court does not reverse or
modify the decision of the Supreme Court of Oregon, the refund of the
invalid taxes shall include interest on the amount paid at the rate of
six percent from the date of the last decision of the Supreme Court of
Oregon in the matter to the date of filing with the Secretary of State of
the report and list of taxpayers entitled to the refunds as required by
ORS 305.770. [Formerly 306.300] Nothing
contained in ORS 305.770 to 305.785 authorizes the refunding of any tax
collected and paid under an invalidated tax law, or invalidated part
thereof, where the tax as provided in such law became due and payable in
any year prior to the year in which the suit or action seeking the
invalidation of the law or part thereof was instituted. [Formerly 306.310] There hereby is appropriated out of the
moneys in the General Fund in the State Treasury, not otherwise
appropriated, the amounts necessary to carry out ORS 305.770 to 305.785,
not exceeding the amounts paid to and received by the State of Oregon,
together with interest thereon as provided in ORS 305.775, under and by
virtue of the law or laws, or parts thereof, declared to be invalid.
[Formerly 306.320] Payment of
any attorney fees or reasonable expenses under ORS 305.447 or 305.490
shall be made by the Department of Revenue in the manner provided by law
for the payment of income tax refunds. [1971 c.265 §5] (1) The Department
of Revenue shall cause a checkoff box to be printed on the personal
income and corporate income or excise tax returns for the appropriate tax
year, by which a taxpayer may indicate that a surplus refund payment or
credit that the taxpayer may otherwise be entitled to under ORS 291.349
shall instead be used for funding education.
(2)(a) A personal income taxpayer may elect to donate a surplus
refund payment to be made under ORS 291.349 to public elementary and
secondary school education. The taxpayer may make the election by
checking the appropriate checkoff box on the taxpayer’s return indicating
the taxpayer’s intention to donate the surplus refund payment to public
elementary and secondary education.
(b) Once made, the election is irrevocable for any surplus refund
payments received until a subsequent return is filed for a later tax
year, and on which the checkoff box is not checked.
(3)(a) A corporate excise or income taxpayer may elect to not claim
a surplus refund credit that the taxpayer would otherwise be entitled to
pursuant to ORS 291.349, in order to achieve a corresponding transfer of
such moneys from the General Fund to the State School Fund for the
support of public elementary and secondary school education. The taxpayer
may make the election by checking the appropriate checkoff box on the
taxpayer’s return and by not using the surplus refund credit percentage
to reduce the taxpayer’s tax liability.
(b) A taxpayer that checks the appropriate checkoff box indicating
that the credit will not be claimed but that nevertheless claims the
credit in determining the taxpayer’s tax liability shall be considered to
have not made the election under this subsection.
(c) The election to not claim a credit under this subsection may
not be revoked by filing an amended return.
(4) After the determination that surplus refund payments are to be
made under ORS 291.349 (4) and (6), the department shall determine the
total amount of such payments for which an election to donate to public
elementary and secondary education has been made and shall certify this
amount to the State Treasurer. Following the department’s certification
to the State Treasurer, an election to donate that biennium’s surplus
refund payments under subsection (2) of this section is irrevocable.
(5) Following the determination to credit corporate income and
excise taxes pursuant to ORS 291.349 (3) and (5), the department shall
annually certify the total amount of allowable credits that have not been
claimed pursuant to an election made under subsection (3) of this
section. The certification shall be made on or before December 31 of each
year, until the tax year for which the credit would otherwise be claimed
becomes a closed tax year. [1999 c.960 §2] Amounts certified by the
Department of Revenue to the State Treasurer under ORS 305.792 shall be
transferred by the department to the State School Fund for the purposes
for which State School Fund moneys may be used. [1999 c.960 §3; 2001
c.114 §7; 2005 c.755 §15]MISCELLANEOUS PROVISIONSThe repeal of the Intangibles Income Tax Act of 1931, as amended,
shall not affect the assessment and collection of any tax, penalty or
interest accruing prior to January 1, 1939, under the Intangibles Income
Tax Act of 1931, as amended, and such amounts shall be assessed and
collected in accordance with the provisions of that Act notwithstanding
its repeal. [Formerly 306.340]Any return, statement or other document required to be filed
under any provision of the laws administered by the Department of
Revenue, in lieu of any oath otherwise required, shall:
(1) Contain or be verified by a written declaration that it is made
under penalties for false swearing; or
(2) Be verified, by such other means as the department may
prescribe by rule, that it is made under penalties for false swearing.
[Formerly 306.410; 1997 c.84 §2] No person
shall willfully make and subscribe any return, statement or other
document that contains or is verified by a declaration under ORS 305.810
that it is made under penalties for false swearing if the person does not
believe the return, statement or other document is true and correct as to
every material matter. [Formerly 306.420; 1997 c.84 §3](1) Any writing or remittance required by law
to be filed with or made to the Department of Revenue, county board of
property tax appeals, county assessor or tax collector (designated in
this section as the “addressee”) which is:
(a) Transmitted through the United States mail or by private
express carrier, shall be deemed filed or received on the date shown by
the cancellation mark or other record of transmittal, or on the date it
was mailed or deposited if proof satisfactory to the addressee
establishes that the actual mailing or deposit occurred on an earlier
date.
(b) Filed electronically pursuant to a rule of the department
adopted under ORS 306.265 and 309.104 that authorizes the electronic
filing and that meets the specifications and requirements of the rule,
shall be deemed to be filed and received on the date actually received by
the addressee, or on the date stated on the electronic acknowledgment of
receipt that is sent by the addressee.
(c) Lost in transmission through the United States mail or private
express carrier, shall be deemed filed and received on the date it was
mailed or deposited for transmittal if the sender:
(A) Can establish by competent evidence satisfactory to the
addressee that the writing or remittance was deposited on or before the
date due for filing in the United States mail, or with a private express
carrier, and addressed correctly to the addressee; and
(B) Files with the addressee a duplicate of the lost writing or
remittance within 30 days after written notification is given by the
addressee of its failure to receive such writing or remittance.
(2) Whenever any writing or remittance is required by law to be
filed or made on a day which falls on a Saturday, or on a Sunday or any
legal holiday, the time specified shall be extended to include the next
business day.
(3) As used in this section:
(a) “Private express carrier” means a carrier described under ORS
293.660.
(b) “Writing or remittance” includes, but is not limited to,
“report,” “tax return,” “claim for credit,” “claim for refund,”
“statement,” “notice of appeal,” “petition for review,” “notice of
election,” “documentary proof,” a claim for exemption, a claim for
deferral, a return of property, a claim for cancellation of an
assessment, an application for a special assessment, and remittances.
[Formerly 306.440; 1965 c.344 §27; 1993 c.44 §2; 1993 c.270 §23; 1997
c.154 §11; 1997 c.541 §87] (1)
As used in this section:
(a) “Internet” means the combination of computer and
telecommunications facilities, including equipment and operating
software, that comprise the interconnected worldwide network of computer
networks that employ the Transmission Control Protocol/Internet Protocol,
or any predecessor or successor protocols, to communicate information by
wire or radio.
(b) “Internet access” means a service that enables users to access
content, information, electronic mail or other services offered over the
Internet. “Internet access” does not include telecommunications services
or cable services.
(c) “Tax” means a charge imposed by a governmental entity for the
purpose of generating revenues for governmental purposes. “Tax” does not
include a fee imposed for a specific privilege, service or benefit
conferred to the payer of the charge.
(2) This state, and the municipal corporations and political
subdivisions of this state, may not impose, assess, collect or attempt to
collect a tax on Internet access or the use of Internet access if the tax
was not in effect on October 6, 2001. [2001 c.741 §1]Note: 305.822 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 305 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. A
county, city, district or other political subdivision in this state may
not levy or impose a tax on amounts paid for exchange access or other
telephone services. [Formerly 307.215; 2005 c.94 §27]Note: 305.823 was enacted into law by the Legislative Assembly but was
not added to or made a part of ORS chapter 305 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) Amounts transferred to the
Department of Revenue by justice and municipal courts under ORS 137.295
shall be deposited in a suspense account established under ORS 293.445
for the purpose of receiving criminal fines and assessments.
(2) In carrying out its duties under this section, the Department
of Revenue shall have access to the records and dockets of those courts
charged with the duty to transfer moneys to the department under ORS
137.295.
(3) The Department of Revenue may retain from the funds transferred
under ORS 137.295 an amount not to exceed two percent annually for its
actual costs of collection and disbursement of funds under this section,
including the cost of all examinations, investigations and searches, and
of all traveling and other expenses in connection therewith. The
department shall deposit the net amount of moneys in the suspense account
described in subsection (1) of this section into the Criminal Fine and
Assessment Account for distribution as provided in ORS 137.300 and
137.302.
(4) All judicial, municipal and county officers shall cooperate
with the Department of Revenue with respect to the collections, searches
and investigations and shall furnish the Department of Revenue with any
information contained in any of the records under their respective
custodies relating thereto.
(5) The Department of State Police shall cooperate in the
investigation of fines, penalties and forfeitures. [Formerly 178.080;
1983 c.763 §53; 1987 c.905 §19a; 2001 c.829 §6]Note: The amendments to 305.830 by section 8, chapter 700, Oregon
Laws 2005, take effect July 1, 2007. See section 10, chapter 700, Oregon
Laws 2005. The text that is effective on and after July 1, 2007, is set
forth for the user’s convenience.
305.830. (1) Amounts transferred to the Department of Revenue by
justice and municipal courts under ORS 137.295 shall be deposited in a
suspense account established under ORS 293.445 for the purpose of
receiving criminal fines and assessments.
(2) In carrying out its duties under this section, the Department
of Revenue shall have access to the records and dockets of those courts
charged with the duty to transfer moneys to the department under ORS
137.295.
(3) The Department of Revenue may retain from the funds transferred
under ORS 137.295 an amount not to exceed two percent annually for its
actual costs of collection and disbursement of funds under this section,
including the cost of all examinations, investigations and searches, and
of all traveling and other expenses in connection therewith. The
department shall deposit the net amount of moneys in the suspense account
described in subsection (1) of this section into the Criminal Fine and
Assessment Account for distribution as provided in ORS 137.300.
(4) All judicial, municipal and county officers shall cooperate
with the Department of Revenue with respect to the collections, searches
and investigations and shall furnish the Department of Revenue with any
information contained in any of the records under their respective
custodies relating thereto.
(5) The Department of State Police shall cooperate in the
investigation of fines, penalties and forfeitures.Whenever any provision of law
provides for a form to be supplied, furnished, or provided by a county
assessor, the requirement means that the county assessor shall make the
form available to a taxpayer at the office of the county assessor. In
such cases there is no requirement that the county assessor mail the form
to the taxpayer unless the statute specifically provides for such
mailing. Where a taxpayer requests the assessor to mail the form to the
taxpayer, or when the assessor voluntarily mails the form, the assessor
does not undertake the responsibility for actual receipt by the taxpayer
of the form, and no estoppel applies against the assessor if the taxpayer
does not receive the form. [1973 c.402 §15] The remedies provided in this chapter
shall be exclusive and no person, county officer or board shall maintain
any suit, action or special proceeding in any court of this state with
respect to the assessment and taxation of property or the collection of
any tax thereon on any grounds, including fraud, where it shall appear
that such remedies were available. [1977 c.870 §12] (1) Notwithstanding any provision
to the contrary in ORS 9.320 and 305.610, the Director of the Department
of Revenue may engage the services of a collection agency to collect any
taxes, interest and penalties resulting from an assessment of taxes or
additional taxes imposed by ORS chapter 118, 310, 314, 316, 317, 318, 321
or 323 or ORS 320.005 to 320.150 and any other tax laws administered by
the Department of Revenue. The director may engage the services of a
collection agency by entering into an agreement to pay reasonable charges
on a contingent fee or other basis.
(2) The director shall cause to be collected, in the same manner as
provided in subsection (1) of this section, assessments, taxes and
penalties due under ORS chapter 656. All amounts collected pursuant to
this subsection shall be credited as provided in ORS 293.250.
(3) The director may assign to the collection agency, for
collection purposes only, any of the taxes, penalties, interest and
moneys due the state.
(4) The collection agency may bring such action or take such
proceedings, including but not limited to attachment and garnishment
proceedings, as may be necessary. [1981 c.705 §6; 1983 c.541 §5; 1985
c.816 §39; 1987 c.843 §19; 1997 c.99 §50; 2003 c.804 §65; 2005 c.94 §28]Note: 305.850 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 305 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.TAXPAYER BILL OF RIGHTS (1) The
Director of the Department of Revenue shall prepare a statement which
sets forth in simple nontechnical terms:
(a) The rights of a taxpayer and the obligations of the Department
of Revenue during an audit;
(b) The procedures by which a taxpayer may appeal any adverse
decision of the department, including informal conferences and judicial
appeals;
(c) The procedures for filing and processing refund claims and
filing of taxpayer complaints; and
(d) The procedures which the department may use in enforcing the
provisions of the laws of this state.
(2) The statement prepared in accordance with subsection (1) of
this section shall be distributed by the Director of the Department of
Revenue to all taxpayers upon request. The director shall inform
taxpayers of their rights in a brief explanatory statement included in
all billing or collection notices, all notices of assessment or
deficiency and all notices of refund adjustment or denial sent to the
taxpayer. [1989 c.625 §67; 1995 c.650 §112] Under any law administered by the
Department of Revenue, an Oregon taxpayer shall have the rights set forth
under ORS 305.880 to 305.895. [1989 c.625 §69; 2003 c.46 §7]In its implementation of the personnel policies established
under ORS chapter 240 or by administrative order, the Department of
Revenue shall not use the dollar amounts of taxes collected as its
primary evaluation criterion. [1989 c.625 §68]In any meeting or communication with the Department of
Revenue, including but not limited to audits, conferences, interviews and
any other meeting or communication between the taxpayer and the
department, the taxpayer shall have the following rights, unless waived
by the taxpayer:
(1) The right to an explanation, by an officer or employee of the
department before or during the meeting of:
(a) The audit, conference or meeting process and the taxpayer’s
rights under such process; and
(b) The collection process and the taxpayer’s rights under such
process.
(2) The right to make an audio recording of any meeting relating to
the determination or collection of any tax with the department
representative, using the taxpayer’s own equipment, and at the taxpayer’s
own expense.
(3) If the department makes an audio recording of the meeting, the
taxpayer has the right to advance notice of the recording and a copy of
the recording upon request. The taxpayer shall reimburse the department
the reasonable cost of the copy.
(4) The right to consult with an attorney, certified public
accountant, enrolled agent, or an other person permitted to represent a
taxpayer at any meeting before the department, if the taxpayer clearly
states to the department representative at any time during any meeting,
that the taxpayer wishes to consult with the person. This subsection does
not apply to a meeting initiated by an administrative subpoena.
(5) The right to be represented by anyone who is permitted to
represent the taxpayer before the department, as provided under ORS
305.230 and 305.245.
(6) The right not to be present, if represented, at the meeting
unless subpoenaed by the department pursuant to ORS 305.190, or other
laws of this state. [1989 c.625 §70; 1995 c.650 §112a]A taxpayer shall have the right to waiver of interest or
penalties when an officer or employee of the Department of Revenue
misleads the taxpayer in a manner described in ORS 305.145. [1989 c.625
§71] A taxpayer shall have the right
to a clear explanation, in any initial notice or other initial
communication of deficiency, delinquency or other writing that is
communicating an underpayment of tax, of the basis for underpayment,
interest and penalties. [1989 c.625 §72](1) A taxpayer shall have the right to enter into a
written agreement with the Department of Revenue to satisfy liability for
payment of any tax in installment payments if the Director of the
Department of Revenue determines that the agreement will facilitate
collection of such liability.
(2) Except as otherwise provided in this section, any agreement
entered into by the director under this section shall remain in effect
for the term of the agreement.
(3) The director may terminate any agreement entered into by the
director under this section if:
(a) Any information that the taxpayer provided to the director
prior to the date the agreement was entered into was inaccurate or
incomplete; or
(b) The director believes that collection of any tax to which an
agreement under this section relates is in jeopardy.
(4) If the director makes a determination that the financial
condition of the taxpayer with whom the director has entered into an
agreement under this section has significantly changed, the director may
alter, modify or terminate the agreement. Action may be taken by the
director under this subsection only if:
(a) Notice of such determination is provided to the taxpayer within
30 days prior to the date of such action; and
(b) Such notice includes the reasons why the director believes a
significant change in the financial condition of the taxpayer has
occurred.
(5) The director may alter, modify or terminate an agreement
entered into by the director under this section in the case of the
failure of the taxpayer to:
(a) Pay any installment at the time such installment payment is due
under such agreement;
(b) Pay any other tax liability at the time such liability is due;
or
(c) Provide a financial condition update as requested by the
director. [1989 c.625 §73; 2003 c.46 §8](1) Except as provided in ORS
314.440 or other jeopardy assessment procedure, the Department of Revenue
shall take no action against a taxpayer’s real or personal property
before issuing a warrant for the collection of the tax as provided in ORS
314.430, 320.080, 321.570 and 324.190.
(2) Prior to issuing a warrant for collection of any tax collected
by the department, the department shall send the taxpayer a written
notice and demand for payment. The notice shall:
(a) Be sent by mail, addressed to the taxpayer at the taxpayer’s
last-known address.
(b) Inform the taxpayer that if the tax or any portion of the tax
is not paid within 30 days after the date of the notice and demand for
payment, a warrant may be issued and recorded as provided in ORS 314.430,
320.080, 321.570 and 324.190.
(c) Describe in clear nontechnical terms the legal authority for
the warrant.
(d) Contain the name, office mailing address and office telephone
number of the person issuing the warrant and advise the taxpayer that
questions or complaints concerning the warrant, other than liability for
the underlying tax, may be directed to that person.
(e) Include alternatives available to the taxpayer which would
prevent issuance of the warrant. [1989 c.625 §74]ORS 305.860 to 305.900 shall be known and
cited as “The Taxpayer Bill of Rights.” [1989 c.625 §66]PENALTIES (1) Any person who willfully presents
or furnishes to the Department of Revenue any statement required under
ORS 305.160, which statement is false or fraudulent, is guilty of perjury
and upon conviction shall be punished as provided by law therefor.
(2) Any person who gives testimony before the Director of the
Department of Revenue which is false or fraudulent, is guilty of perjury
and upon conviction shall be punished as provided by law therefor.
(3) Any public officer who neglects or refuses to perform any of
the duties imposed on the public officer by law as to the assessment,
levying or collection of taxes shall be punished, upon conviction, by a
fine not exceeding $500 or by imprisonment in the county jail not
exceeding one year.
(4) Violation of ORS 305.815 is punishable, upon conviction, by a
fine of not more than $1,000 or by imprisonment for not more than one
year in the county jail, or both.
(5) Violation of ORS 305.260 is punishable, upon conviction, as a
Class A misdemeanor, as provided in ORS chapter 161. If the offender is
an officer or employee of the state the offender shall be dismissed from
office and shall be incapable of holding any public office in this state
for a period of five years thereafter. [Formerly 306.990; 1973 c.402 §6;
subsection (5) enacted as 1973 c.402 §25(2); subsection (6) enacted as
1977 c.790 §5; 1985 c.105 §2](1) If any returns required to be filed under ORS
chapter 118, 314, 316, 317, 318, 321 or 323 or under a local tax
administered by the Department of Revenue under ORS 305.620 are not filed
for three consecutive years by the due date (including extensions) of the
return required for the third consecutive year, there shall be a penalty
for each year of 100 percent of the tax liability determined after
credits and prepayments for each such year.
(2) The penalty imposed under this section is in addition to any
other penalty imposed by law. However, the total amount of penalties
imposed for any taxable year under this section, ORS 305.265 (13),
314.400, 323.403 or 323.585 shall not exceed 100 percent of the tax
liability. [1987 c.843 §3; 1997 c.99 §51; 1999 c.62 §22]
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