Chapter 340 Oregon Laws 1999

Session Law

AN ACT

HB 2299

Relating to the Oregon Tax Court; amending ORS 34.120, 294.485, 305.275, 305.280, 305.501, 305.570, 305.580, 305.583, 305.585, 305.587, 305.589 and 309.110.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 305.501 is amended to read:

305.501. (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 ad valorem 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, mediation and small claims procedures.

(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 [mailing] entry of the written decision.

(b) If a decision of a magistrate involves any matter arising under the ad valorem 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 ad valorem tax laws and a party other than a county appeals the decision to the tax court judge, the Department of Revenue shall be the [respondent] 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. Upon the final determination of any ad valorem tax matter, either in a proceeding before the magistrate division or in a small claims procedure, ORS 305.440 (2) shall be applicable.

SECTION 2. ORS 305.275 is amended to read:

305.275. (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, [or] 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 ORS 308.370 or other special assessment statute, or the denial of a claim for cancellation of assessment; or

(D) A tax collector.

(b) The act, [or] 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.

(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.

SECTION 3. ORS 305.280 is amended to read:

305.280. (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, [or] 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 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, 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) 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.

(4) 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.

SECTION 4. ORS 305.570 is amended to read:

305.570. (1)(a) Any person, including a county assessor or county tax collector aggrieved by and affected by [an order, act, omission or determination of the Department of Revenue, a person, including a county assessor aggrieved by and affected by an order of the county board of property tax appeals and a person whose property is affected by an order of the Department of Revenue made to a county assessor or county tax collector under the authority contained in ORS 305.288 or 306.115] 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 [Oregon] tax court as provided in ORS 305.620.

SECTION 5. ORS 309.110 is amended to read:

309.110. (1) The disposition of every petition before a board of property tax appeals and the board's determination thereon shall be recorded by formal order and entered in the record of the board. A copy of the order as to each petition shall be sent, by mail, to the petitioner at the post-office address given in the petition. When a copy of a board's order is personally delivered to the petitioner, the requirement to mail a copy of the order is waived. A copy of each order shall be delivered to the assessor and the officer in charge of the roll on the same day that the order is mailed or delivered to the petitioner. The orders of a board shall specify what changes shall be made in the tax roll, if any, and shall direct the officer in charge of the roll to make them. The district attorney shall be available to aid a board in the preparation of its orders.

(2) Notwithstanding subsection (1) of this section, if a petition is filed with the board that is resolved by stipulation under ORS 308.242 prior to the date the board convenes, the stipulation shall be entered into the record of the board. The requirements for mailing and delivery under subsection (1) of this section do not apply to a stipulation entered into the record under this subsection.

(3) A board may issue amended orders to correct clerical errors or errors of jurisdiction appearing in its original orders.

(4) As used in this section:

(a) A clerical error is an error in the order which either arises from an error in the minutes of a board or which is a failure to correctly reflect the minutes of a board, and which, had it been discovered prior to the order being issued would have been corrected as a matter of course, and the information necessary to make the correction is contained in the minutes of a board. Such errors include, but are not limited to arithmetic and copying errors and omission or misstatement of identification of property.

(b) An error of jurisdiction is an error in the order resulting from the board's failure to correctly apply the board's authority as granted under ORS 309.026.

(5) Amended orders may only be issued during a board's session, or by call of the chairperson, within 30 days after final adjournment of the session.

(6) The provisions of subsection (1) of this section shall apply to amended orders, unless the context requires otherwise. Amended orders shall be mailed to the petitioner and delivered to the assessor and the officer in charge of the roll not later than five days after the adjournment of a board's meetings or five days after the 30-day period provided for in this section, if issued during the 30-day period.

(7) The order of a board, other than an order relating to an application to excuse liability for the penalty imposed under ORS 308.295, may be appealed to the magistrate division of the Oregon Tax Court.

SECTION 6. ORS 34.120 is amended to read:

34.120. The circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises functions, or if a private person or corporation, wherein such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, except that the regular division of the Oregon Tax Court or judge thereof shall have jurisdiction in mandamus proceedings in all cases involving tax laws as [defined] described in ORS 305.410, and except that the Supreme Court may take original jurisdiction in mandamus proceedings as provided in section 2 of amended Article VII of the Oregon Constitution.

SECTION 7. ORS 294.485 is amended to read:

294.485. (1) Any ad valorem property tax made contrary to the provisions of ORS 294.305 to 294.565 or any other law relating to the making of tax levies shall be voidable as provided in subsection (2) of this section and ORS 310.070.

(2) The county assessor, county court, board of county commissioners, the Department of Revenue, tax supervising and conservation commission or an interested taxpayer may appeal to the regular division of the Oregon Tax Court and such appeal shall be perfected in the following manner only:

(a) Within 30 days after the certification of ad valorem property taxes is filed with the county assessor under ORS 310.060, the appealing party shall file an original and two certified copies of a complaint with the clerk of the [Oregon] tax court at its principal office in Salem, Oregon. Such filing in the [Oregon] tax court shall constitute the perfection of the appeal. Service upon the Department of Revenue shall be accomplished by the clerk of the tax court filing a certified copy of the complaint with the Director of the Department of Revenue and with the secretary or clerk of the municipal corporation.

(b) The complaint shall state the facts and the grounds upon which the plaintiff contends the tax should be voided or modified. The case shall proceed thereafter in the manner provided in ORS 305.405 to 305.494.

(3) If the tax court finds that the budget and the tax certification in question were not prepared and made in substantial compliance with ORS 294.305 to 294.565 and any other applicable law relating to the making of ad valorem property taxes, it shall declare void or modify any such tax and shall direct that such action be taken, all as in the circumstances it shall deem appropriate.

SECTION 8. ORS 305.580 is amended to read:

305.580. (1) The provisions of ORS 305.583, 305.585, 305.587 and 305.589 shall provide the exclusive remedy for determination of questions concerning the effect of the limits of section 11b, Article XI of the Oregon Constitution on taxes, fees, charges and assessments of units of government.

(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 [Oregon Tax Court] regular division and shall be heard and decided as soon after coming to issue as is reasonably possible.

SECTION 9. ORS 305.583 is amended to read:

305.583. (1) An interested taxpayer may petition the regular division of the Oregon Tax Court to determine the effect of the limits of section 11 or 11b, Article XI of the Oregon Constitution on any tax, fee, charge or assessment imposed by a unit of government. For purposes of this section, "interested taxpayer" means a person who is subject to the tax, fee, charge or assessment in question.

(2) The petition shall be filed and perfected in the following manner only:

(a) The petitioner shall file an original and two certified copies of a petition with the clerk of the [Oregon] tax court at its principal office in Salem, Oregon. The petition shall name the government unit that imposes the tax, fee, charge or assessment, or, in the case of an urban renewal agency, that receives the taxes, as respondent. The filing in the [Oregon] tax court shall constitute the perfection of the petition. The clerk of the tax court shall serve the government unit by mailing a certified 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. 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.

(3)(a) Except as provided in subsections (4) to (7) of this section, in the case of 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.

(4) In the case of 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 (8) of this section.

(5) In the case of 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 (3)(a) of this section.

(6) In the case of 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.

(7) 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.

(8) A local government unit 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. The notice shall:

(a) Appear in the general news section of the newspaper, not in the classified advertisements;

(b) Measure at least three inches square;

(d) State that the local government unit has adopted a resolution or ordinance 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.

(9) 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 shall not be considered a change that may result in a proceeding commenced under subsection (3) of this section.

SECTION 10. ORS 305.585 is amended to read:

305.585. (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 an original and two certified copies of a petition with the clerk of the [Oregon] 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 [Oregon] 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 certified 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.

SECTION 11. ORS 305.587 is amended to read:

305.587. (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.

SECTION 12. ORS 305.589 is amended to read:

305.589. (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 the effect of section 11b, Article XI of the Oregon Constitution on any tax, fee, charge or assessment imposed or to be imposed by, or bonded indebtedness incurred or to be incurred by, that local government unit or by any of the consenting members of the association of local government units.

(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) 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.

(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 final 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) 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.

(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) "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 to 198.180, 198.210 and 198.330 or an urban renewal agency established under ORS 457.035.

(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) "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.

Approved by the Governor June 24, 1999

Filed in the office of Secretary of State June 24, 1999

Effective date October 23, 1999

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