14 Or. Tax 276 | Or. T.C. | 1998
Decision for Defendant rendered March 25, 1998.
Appeal pending. This matter is before the court on Plaintiffs' First Motion for Summary Judgment and Defendant's cross Motion for Summary Judgment relating to the same issue. There is no dispute of material fact, and the motions present a single legal issue.1
Plaintiffs (taxpayers) timely filed their Oregon Income Tax Returns for the years 1977, 1978, and 1979. Taxpayers' Federal Income Tax Returns for the same years were audited by the Internal Revenue Service.2 As a result of the federal audit, Defendant (department) issued Notices of Deficiency with regard to taxpayers' Oregon Income Tax Returns for those years. Taxpayers' motion asserts that the department's failure to certify that the Notices of Deficiency were "made in good faith and not for the purpose of extending the *278 period of assessment" is a fatal defect rendering the notices void.
"If the department discovers * * * 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 * * *. 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." (Emphasis added.)
1. As a general rule, use of the word "shall" in a statute is viewed as mandatory. That is, failure to perform the act vitiates the administrative action. Anaconda Co. v. Dept. of Rev.,
"[a]s a result, the delinquent taxpayer gets a windfall, and the other taxpayers of this state will have to bear a proportionally larger burden."
278 Or at 732 ,733 (Howell, J., dissenting).
Also noted in the same dissent, *279
"Before adopting such an approach, we should carefully consider some of the practical consequences of employing such an exacting standard." Id. at 731.
2. Caution is appropriate because if the court does not view "shall" as mandatory when the legislature intended it to be so, then the court inadvertently thwarts legislative intent. On the other hand, exalting form over substance may also defeat legislative intent, as was pointed out in a property tax case where the Supreme Court stated:
"While it is true that the law contemplates that the officers will all perform their respective duties within specified times, and that the method provided for assessing and taxing property will be followed promptly and without delay in a systematic and orderly manner, nevertheless it would be sacrificing substance for form, and essence for ceremony, to nullify the levy made on December 30th, especially when it is remembered that the assessor still had the roll in his possession and ample time remained for extending the second tax before the assessor was required to deliver the roll to the tax collector." State v. Johnson,
80 Or. 107 ,116-17 ,156 P. 579 (1916).
3, 4. The court looks to the text and context of the statute to discern legislative intent. PGE v. Bureau of Labor andIndustries,
5, 6. ORS
7, 8. Nothing in the context of the ORS
What is the purpose of requiring the notice to be certified that it was issued in good faith and not for the purpose of extending the statutory period? First, it implicitly requires notices to be issued in good faith. Second, notices prepared and issued for the purpose of extending the statute of limitations are void. See Olympia Brewing v. Dept. of Rev.,
9. The requirement acts as a limitation upon the authority of the department. Its function is to prevent the department from "skirting" the statute of limitations. In view of this purpose, the court concludes that such failure does not abrogate the legislative policy. The policy against notices of assessment to extend a statute of limitations is as effective for notices without certification as it is for those certified. Absence of certification merely raises the question of whether the notices were issued for an improper purpose.
10, 11. Another possible reason for the requirement is to shift the burden of proof to the taxpayer. If a taxpayer attacks *281
a notice on the ground that it was only issued to extend the statute of limitation, certification shifts the burden of proof to the taxpayer. In the absence of certification, the burden would appear to be on the department to show that the notices were issued in good faith. In determining legislative intent, PGE
tells us to also look to "other provisions of the same statute and other related statutes." Id. at 611. The legislature has expressly taken the above approach in ORS
The certification required is merely a form statement. It does not preclude the taxpayer from challenging the truth of the statement and the statement alone cannot mislead the taxpayer. Absent time constraints, the court might conclude that mandamus should issue to compel the department to certify its notices. Similarly, if the court found that a certification was false, an appropriate sanction would be to hold that the notice was void. However, mere omission of the certification from the notice does not render the notice void. Now therefore,
IT IS ORDERED that Plaintiffs' Motion for Summary Judgment is denied, and
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment is granted with regard to the particular issue raised by Plaintiffs' first Motion for Summary Judgment.