Gua v. Dept. of Rev.

No. 22 	August 25, 2023 	369
IN THE OREGON TAX COURT
REGULAR DIVISION
Cindy GUA,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant.
(TC 5453)
In this personal income tax case, Plaintiff (taxpayer) had failed to file
returns, and Defendant had assessed taxpayer pursuant to ORS 305.365(10)(a)
“according to the best of its information and belief,” including substantial penal-
ties. On appeal to this division, taxpayer filed a motion for stay of payment under
ORS 305.419(3), asserting undue hardship. After the court ordered taxpayer to
substantiate her claim of undue hardship, taxpayer submitted documents to the
court, including credit union statements, credit card statements, and federal
income tax returns. The court found the evidence insufficient due to internal
inconsistencies and omitted information. Taxpayer eventually filed the missing
Oregon returns and requested abeyance to enable Defendant to review them.
The court denied abeyance because ORS 205.265(10)(e) authorizes Defendant to
request abeyance, Defendant had not done so, and there was no other basis for
the court to act. The court denied taxpayer’s motion to stay payment. The court
ordered taxpayer to pay the tax, penalty, and interest assessed within 30 days.
Taxpayer subsequently failed to pay the tax, penalty, and interest and the court
granted Defendant’s motion to dismiss.
Submitted on Plaintiff’s motions and Defendant’s Motion
to Dismiss.
Cindy Gua, Plaintiff, filed the motions pro se.
Daniel 	Paul, 	Senior 	Assistant 	Attorney 	General,
Department of Justice, Salem, filed the responses and
motion for Defendant.
Decisions rendered August 25, 2023; December 8, 2023;
and January 31, 2024, respectively.
ROBERT T. MANICKE, Judge.
This matter is before the court on Plaintiff’s “Initial
Set of Responsive Documents and Plaintiff’s Request to
Place Case on Hold Until September 18, 2023,” filed August
17, 2023, and Defendant’s response filed August 21, 2023.

370 	Gua v. Dept. of Rev.
Plaintiff’s August 17, 2023, filing comes as the court
seeks to adjudicate her initial claim that paying the income
tax, interest, and penalties assessed to her for tax years 2016
through 2019 would be an undue hardship under ORS 305.419.1
Plaintiff filed a Motion for Stay of Payment of Income Tax, and
accompanying affidavit, on or about April 19, 2023; Defendant
objected on or about May 22, 2023. On May 25, 2023, the court
ordered Plaintiff to submit additional documents, on or before
June 30, 2023, to substantiate her claim of financial hardship
during the approximately five years preceding the filing of her
complaint. On June 23, 2023, Plaintiff sought an extension,
until July 30, 2023, to submit the substantiating documents,
which the court granted. On July 27, 2023, Plaintiff requested
a second extension, until August 30, 2023, representing that
she had requested, but not yet received, copies of documents
from banks, credit card companies, and other accounts. On
August 9, 2023, the court granted that second extension
request, ordering Plaintiff to file an initial set of documents
on or before August 17, 2023, and ordering her to otherwise
fully comply with the August 30, 2023, deadline.
Plaintiff’s August 17 filing includes some 200 pages
of credit card statements, for periods in 2020, 2021, 2022,
and 2023, responsive to the court’s order to furnish docu-
ments substantiating her claim of undue hardship. Despite
that length, the documents respond to only one of the six
types of substantiating documents that the court ordered.
Documents remaining to be filed by the August 30, 2023,
deadline include federal income tax returns and tax forms,
a declaration of gifts, bank statements, and property tax
statements. Plaintiff’s August 17 filing mentions nothing
about the documents remaining to be filed.
The remainder of Plaintiff’s August 17 filing asks the
court to “place this case on hold until September 18, 2023.” To
that extent, the court treats the August 17 filing as a motion
to place the case in abeyance.2 Plaintiff represents that lack
of information has prevented her from filing returns for the
tax years at issue in this case, but that, over the last several
months, she has been able to obtain the needed information
1 The court’s references to the Oregon Revised Statutes (ORS) are to the 2021
edition.

Cite as 25 OTR 369 (2023) 	371
and has engaged an accountant to prepare the returns. The
filing states that the returns “are now complete and ready
to be submitted to the Oregon Department of Revenue,” and
that they “are being mailed” to Defendant’s auditor. Plaintiff
states that her intent in filing the returns is to cause the
case to be placed on hold to allow Defendant to process the
returns, making the “case a moot issue.”
Defendant’s August 21 response objects to any
abeyance of the case on the grounds that Defendant has
not actually received any returns from Plaintiff. Defendant
also refers to the availability of proceedings under ORS
305.265(10), in the event Defendant receives returns. Under
that provision, Defendant may request an abeyance of this
proceeding to review returns. See ORS 305.265(10)(e) (“If
[a taxpayer] 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.”) (Emphasis added). If Defendant
accepts the returns for processing, the instant case may be
dismissed as moot, and any such returns are subject to audit
and adjustment. See ORS 305.265(IO)(f) (allowing depart-
ment to examine and adjust the return).
ANALYSIS
The court has inherent discretionary authority to
place a case in abeyance as a means of managing its docket.
See Seneca Sustainable Energy v. Lane County Assessor, 23
OTR 1, 4 (2018) (stating that relevant factors include the
interests of the parties, the convenience of the court and the
efficiency of its processes, and the interests of nonlitigants
and the public). In general, the introduction of new, relevant
information, which upon review and conferral could enable
the parties to reach a resolution that will make a case moot,
is a factor that can favor holding a case in abeyance. In this
case, however, the court agrees with Defendant that abey-
ance would be premature because the Department has not
yet received any tax returns for the subject years. To date,
there is no new information to review. Now, therefore,
IT IS ORDERED that Plaintiffs motion for abey-
ance is denied. The August 30, 2023, deadline to comply
with the court’s order of August 9, 2023, remains in effect.

372 	Gua v. Dept. of Rev.
ORDER OF DECEMBER 8, 2023
This matter is before the court on (1) Plaintiff’s
April 21, 2023, Motion for Stay of Payment of Income Tax
under ORS 305.419(3); (2) her letter to the court dated
August 30, 2023, and subsequent filings, which the court
treats collectively as a second motion for abeyance of these
proceedings or as a motion to compel Defendant to process
her recently filed Oregon personal income tax returns under
ORS 305.265(10); and (3) Defendant’s Motion to Dismiss filed
September 28, 2023.1 The court will deny Plaintiff’s motions
and will act on Defendant’s motion after the 30-day period
has elapsed for Plaintiff to pay the assessment in full.
I. 	PLAINTIFF’S MOTION FOR STAY OF PAYMENT OF
INCOME TAX
On or about April 21, 2023, Plaintiff filed her
complaint contesting a magistrate’s decision that upheld
Defendant’s assessments of personal income tax for tax years
2016, 2017, 2018, and 2019. The cumulative amount of tax
assessed, with interest and penalties computed as of August
27, 2021, is $869,979.87. 2 With her complaint, Plaintiff filed
her Motion for Stay of Payment of Income Tax along with an
affidavit on the court’s form that declared information about
her income, expenses, assets, and liabilities. Plaintiff argues
that immediate payment, as otherwise required under ORS
305.419(1), would impose an undue hardship.
A. 	Plaintiff’s April 21, 2023, Affidavit
The April 21 affidavit discloses a single source of
monthly income, ranging from $5,000 to $8,000, from “share
of profits as a member of an LLC.” As assets, Plaintiff lists
modest amounts in one checking account and one savings
account at a single credit union, plus an amount in cash
sufficient to cover several months’ worth of listed expenses.
1 Unless otherwise specified, the court’s references to the Oregon Revised
Statutes (ORS) are to the 2021 edition.
2 The total amounts of tax, penalties, and interest due for each tax year are
as follows: 2016: $26,162.81
2017: $83,709.58
2018: $441,131.67
2019: $318,975.81

Cite as 25 OTR 369 (2023) 	373
In response to a request to identify any real property, the
affidavit states “N/A.” The affidavit lists a “trailer” worth
$3,000, a motorcycle worth $5,500, and furniture and other
personal effects of modest value. As to “money owed to you
by others,” the affidavit states “N/A.” As to living expenses,
the affidavit lists “—” for “rent/mortgage.” Her remaining
living expenses total $4,995 of which the majority is “Credit
card payment(s)” averaging $2,755 for personal expenses.
The remaining listed living expenses are $130 for “utilities,”
$1,065 for food, $500 for fuel, and a total of $545 for medical
expenses, clothing, personal needs, beauty and cosmetics.
B. 	Defendant’s May 22, 2023, Response
In its May 22, 2023, response to Plaintiff’s motion,
Defendant pointed out that Plaintiff’s April 21 affidavit is
internally inconsistent because it lists income from profits
of an unnamed limited liability company (LLC) but fails to
list Plaintiff’s interest in the LLC as an asset, or to assign
any value to that asset.
Defendant also argued that additional facts call
into question the reliability of the statements in Plaintiff’s
April 21 affidavit. Defendant submitted an auditor’s decla-
ration that included the following factual representations:
• 	Plaintiff is a managing member of four LLCs engaged
in producing and selling marijuana in Oregon, at least
one of which (Weedbucks, LLC) filed Oregon sales tax
returns during the subject years.
• 	Plaintiff failed to file Oregon personal income tax
returns for the subject years. 3 Defendant used the
sales tax returns of Weedbucks, LLC, to estimate
Plaintiff’s income and determine her personal income
tax liability for the for the tax years at issue.
• 	“Since 2019, when the Department first sent Ms. Gua
a Notice of Deficiency for the tax years 2016 to 2019,
Ms. Gua has refused to provide the Department with
any business or personal financial information or to
comply with any requests for documents substantially.”
3 Plaintiff later delivered a set of returns to Defendant in late August or
early September 2023, as discussed below.

374 	Gua v. Dept. of Rev.
The auditor’s declaration attaches two orders by the magis-
trate in the case from which Plaintiff now appeals. The con-
cluding portion of the magistrate’s August 17, 2022, Order
Denying Plaintiff’s Motion for Summary Judgment recites:
“Plaintiff bears the burden of proving that the assess-
ments are in error or should be modified. The court previ-
ously gave Plaintiff time to send requested documents to
Defendant, but she declined to do so. * * * Within 30 days,
Plaintiff shall send requested documents to Defendant as
agreed upon during the case management conference held
March 18, 2022. Now, therefore,
“IT IS ORDERED that Plaintiff’s motion for Summary
Judgment is denied.
“IT IS FURTHER ORDERED that, by September 16, 2022,
Plaintiff will send requested documents to Defendant.
Plaintiff’s failure to comply may result in dismissal of this
case.”
On February 6, 2023, the magistrate issued an Order of
Dismissal, reciting in part:
“The court set trial by order entered December 7, 2022, and
sent separate hearing notices to the parties that same day.
Plaintiff did not submit any exhibits by the exchange dead-
line and failed to appear for trial as scheduled. The court
has not received any further communication from Plaintiff.
It is Plaintiff’s responsibility to prosecute this appeal,
and under such circumstances, the court finds this appeal
should be dismissed for lack of prosecution.”
The February 6 order was followed by the magis-
trate’s Decision of Dismissal dated February 27, 2023, from
which Plaintiff timely appealed by filing her complaint in
this division.
C. 	Court’s May 25, 2023, Order to Provide Substantiating
Documents and Plaintiff’s Response
In an order dated May 25, 2023, the court concluded
that it was unable to determine from Plaintiff’s April 21
affidavit whether payment of the tax, penalty, and interest
would be an undue hardship. The court ordered Plaintiff
to substantiate her affidavit by submitting further proof of
hardship, as detailed in the table below.

Cite as 25 OTR 369 (2023) 	375
On June 23, 2023, Plaintiff sought an extension,
until July 30, 2023, to submit the substantiating documents,
which the court granted on July 11, 2023. Gua v. Dept. of
Rev., TC 5453 (Jul 11, 2023).
On July 27, 2023, Plaintiff requested a second
extension, until August 30, 2023, representing that she had
requested, but not received, unspecified copies of documents
from banks, credit card companies, and other accounts. On
August 9, 2023, the court granted the second extension
but ordered Plaintiff (1) to file those responsive documents
already in her possession on or before August 17, 2023, and
(2) otherwise to comply with the extended August 30, 2023,
deadline. Gua v. Dept. of Rev., TC 5453 (Aug 9, 2023).
On August 17, 2023, Plaintiff filed some 200 pages
of documents, including a second affidavit also dated August
17, 2023.4 The court treated her filing, entitled “Initial Set
of Responsive Documents and Plaintiff’s Request to Place
Case on Hold Until September 18, 2023” as a first motion for
abeyance. Plaintiff explained that for two years she had been
trying to get information necessary for her returns and had
been able to do so “[o]ver the last several months.” She had
found a “competent tax accountant who specializes in the
Cannabis business field,” and her returns were “now com-
plete and ready to be submitted to the Oregon Department of
Revenue.” As discussed below, Defendant objected that it had
not yet received the returns, and on August 25, 2023, the court
denied Plaintiff’s first motion for abeyance and ordered that
the August 30, 2023, extended deadline to provide documents
in response to the May 25, 2023, order remained in effect. Two
months later, in response to Defendant’s Motion to Dismiss,
Plaintiff also filed a declaration dated October 9, 2023, that
addressed two items in the court’s May 25 order, along with
copies of federal income tax returns for the years stated in the
4 The differences between Plaintiff’s affidavit filed August 17, 2023, and
the Affidavit of Income, Assets, and Expenses in Support of Motion for Stay of
Payment of Income Tax filed with her complaint on or about April 19, 2023, are
limited to: (1) A reduction to the low end of the range of her estimated monthly
average share of profits from an LLC from “5000-8000” to “4000-8000”; (2) the
addition of a “2007 BMW 335” with a value of “5000”; and (3) the addition of
“(VARIES FOR PERSONAL EXPENSES)” as a description of her credit card
payments.

376 	Gua v. Dept. of Rev.
order. The table below summarizes all documents ordered to
be provided to the court and Plaintiff’s responses:
May 25, 2023, Order 	Documents
Received
1 	All tax returns of Plaintiff
filed with the Internal
Revenue Service for tax
periods in 2018 through
April 30, 2023
Copies for 2018 and 2019
provided to court
Copies for 2020, 2021, and
2022 provided to court
2 	All Internal Revenue
Service Forms W-2, 1099 (of
any kind), or K-1 directed to
Plaintiff for tax periods in
2018 through April 30, 2023
None provided to
court; not mentioned in
Declaration of Gua
3 	A declaration identifying all
income or gifts, not reported
under items 1 or 2 above,
that Plaintiff realized or
received from January 1,
2018, through April 30, 2023
“I have included all income
and gifts in my State and
Federal Tax Returns for
years 2016 through 2022,
meeting the declaration
requirement that was
ordered in #4 of the May
25, 2023, court order.”
4 	Monthly statements for any
bank, brokerage firm, or
other financial institution
with which Plaintiff held an
account, including balances
and monthly transac-
tions, for January 1, 2020,
through April 30, 2023
Checking and savings
account statements from
Rogue Credit Union for
periods beginning
March 1, 2022, and ending
April 30, 2023
5 	Monthly credit card state-
ments for all credit cards,
including balances and
itemized transactions, for
January 1, 2020, through
April 30, 2023
Citi credit card statements
for billing periods begin-
ning December 27, 2019,
and ending September 25,
2020
Bank of America credit
card statements for
billing periods beginning
December 11, 2019, and
ending May 10, 2023
6 	Any property tax statement
issued in 2018 through
April 30, 2023, for property
held by Plaintiff
“There is no real property
tax statement or real
property that’s held by the
plaintiff i.e. Cindy Gua.”

Cite as 25 OTR 369 (2023) 	377
1. 	Review of Plaintiff’s Evidence
The court reviews the foregoing evidence from
Plaintiff, consisting of the above documents as well as
Plaintiff’s April 21, 2023, and August 17, 2023, affidavits and
her October 9, 2023, declaration, ignoring for the moment
questions of timeliness. 5 Solely for purposes of this review,
the court will assume that the unsigned, undated federal
income tax returns attached to Plaintiff’s October 9, 2023,
declaration are copies of returns that Plaintiff actually filed
with the Internal Revenue Service during the period August
through October 2023. Her most recent return, for 2022,
reports gross income of $117,577, entirely from “Weedbucks,
LLC,” a partnership, and taxable income of $104,627. (2022
Form 1040; 2022 Schedule E.) The returns for earlier years
likewise show gross income entirely from Weedbucks, LLC:
$330,228 (2021); $276,656 (2020); $124,519 (2019); and
$129,885 (2018).
The court turns to the monthly statements for
Plaintiff’s credit cards and credit union, which Plaintiff
provided on August 17, 2023. The court assumes that she
intends the statements she furnished to be a complete set
for the period specified in the May 25 order.6
The court focuses on the statements for Plaintiff’s
Bank of America Visa and her credit union, because those
statements overlap for approximately the last year: March
2022 through April 2023.7 Each monthly Bank of America
credit card statement shows around 50 charges totaling
5 Plaintiff filed the October 9, 2023, declaration and copies of federal income
tax returns well after the court’s August 30, 2023, deadline.
6 The court granted each extension Plaintiff requested and allowed her a
total of more than three months to comply with the direction to provide monthly
statements for “any” financial institution accounts and for “all” credit cards for
the period inquired of. On July 27, 2023, when making her most recent request for
an extension, Plaintiff represented that she had requested, but not yet received,
all account documents. Three weeks later, on August 17, 2023, Plaintiff provided
the statements listed above without requesting a further extension and without
any explanation.
7 The Costco-branded Citi Visa statements Plaintiff provided for an earlier
period (December 2019 through September 2020) show little activity, typically
consisting of several transactions per month at a Costco store or gas station, with
the balance paid off each month. However, the court notes that these older state-
ments raise questions as well: Around one-half the payments on the account were
made by “ONLINE PAYMENT.” Yet Plaintiff has not provided the court with

378 	Gua v. Dept. of Rev.
more than $10,000. 8 The total charges during this one-year
period are $178,019. The transactions on the statements
appear to consist of business transactions or a mix of busi-
ness and personal transactions, although each statement
for each account shows solely Plaintiff’s name as addressee,
without the name of any business entity. Each statement
shows that all charges were paid in full; no interest charges
were incurred. Apart from what appear to be occasional
merchant credits, the sources of the payments are listed as
“BA ELECTRONIC PAYMENT,” “OR Banking Center pay-
ment,” or “ATM PAYMENT,” typically made once or twice per
month. By contrast, the credit union checking account state-
ments show a low level of monthly activity, typically not more
than a half-dozen debits totaling less than $1,000 and one
or two credits. The monthly ending balance never exceeded
$3,000. Only one payment, in the amount of $107, appears to
have been made from Plaintiff’s credit union account to the
Bank of America credit card. The savings account shows no
activity apart from a one-time deposit of $5.00 on the first
statement provided to the court (March 2022).
2. 	Whether 	Plaintiff’s 	Evidence 	and 	Declaration
Substantiate Plaintiff’s Affidavits
The court seeks to correlate these data with the
information stated in Plaintiff’s affidavits. As to Plaintiff’s
income, the $117,577 of gross income from Weedbucks, LLC,
reported on her federal income tax return for 2022 is roughly
consistent with the $5,000 to $8,000 in LLC “profits” that
she reported on her affidavits. However, the court cannot
verify Plaintiff’s income from the other documents provided.
If the reported profit amounts are distributed to her in cash,
there is no evidence that she deposits them into her credit
union accounts.
As to living expenses, the court cannot verify any
amount of credit card payments from the information pro-
vided, apart from the single payment of $107 noted above.
account statements for any financial institution from which payments on the Citi
Visa account were made.
8 The monthly statement balances for the Bank of America credit card
averaged $15,071 for 2020, $19,308 for 2021, $13,901 for 2022, and $13,264 for
January to May of 2023.

Cite as 25 OTR 369 (2023) 	379
If the court assumes that Plaintiff uses cash distributed to
her from Weedbucks, LLC, to make payments on her Bank
of America Visa account, the Bank of America statements
still do not substantiate that practice. Plaintiff’s affidavits
state that she makes payments averaging $2,755, but each
payment recorded on the Bank of America statements is
invariably two to four times that amount.
Plaintiff’s affidavits also report $130 “max” for “util-
ities.” The court finds no entries on any monthly statements
that clearly correspond to a utility bill. As for the remain-
ing $2,110 total monthly expenses listed on Plaintiff’s affi-
davits (food, medical expenses, clothing, personal care, and
fuel), the court finds no corresponding amounts in the credit
union statements, and the court is unable to segregate cor-
responding amounts from among the many transactions on
the Bank of America credit card statements.
The court concludes that the evidence Plaintiff has
provided is insufficient to substantiate the income and liv-
ing expenses listed on Plaintiff’s affidavits.
3. 	Internal Inconsistencies in Plaintiff’s Evidence
In addition to a lack of substantiation, the court
finds that Plaintiff’s evidence, before considering any new
facts proffered by Defendant, shows several inconsistencies.
First, Plaintiff’s April 21, 2023, affidavit lists income from
her “share of profits as a member of an LLC”; however, the
April 21 affidavit does not name, or disclose the value of,
any membership interest. 9 Defendant pointed this out in its
May 22, 2023, response to Plaintiff’s motion for stay, and
the court’s May 25, 2023, order directed her to provide cop-
ies of all “Forms W-2, 1099 (of any kind), or K-1 directed
to Plaintiff,” but Plaintiff’s second affidavit, dated August
17, 2023, nevertheless fails to list any interest in a busi-
ness entity or the value of that interest, and she provided
no copies of K-1s. Plaintiff later provided copies of federal
9 The court’s form of affidavit poses the question as follows: “ALL OTHER
PROPERTY OR ASSETS (All other property or assets exceeding $200 in value;
for example, furniture, stocks, bonds, boats, R.V.s, trailers, campers, guns, and
jewelry).” (Affidavit of Income, Assets, and Expenses in Support of Mot Stay
Payment Income Tax at page 2 of 3 (emphases added).) Beneath that heading
are subheadings for “Description” and “Value,” which Plaintiff completed for her
furniture, trailer, jewelry, motorcycle, and in her second affidavit, her car.

380 	Gua v. Dept. of Rev.
income tax returns for herself, on October 9, 2023, showing
“Nonpassive income from Schedule K-1” from Weedbucks,
LLC. (Emphasis added.) (2018 Schedule E at 2.) The court
finds that these omissions—particularly the failure to pro-
vide the value of her interest in Weedbucks, LLC—cast
doubt on whether Plaintiff has disclosed all of her assets.
Second, 	the 	evidence 	raises 	questions 	whether
Plaintiff had access to additional accounts, beyond the credit
union accounts, the Bank of America Visa, and the Costco-
branded Visa. From January 2020 through October 2022,
at least one payment from “BA ELECTRONIC PAYMENT”
appears on each Bank of America Visa account statement.
The description suggests that the source of the payment is
some other financial institution account, as opposed to cash.
Yet 	the 	court 	finds 	no 	corresponding 	records
that would indicate that the source is either of Plaintiff’s
credit union accounts. In addition, Plaintiff provided cop-
ies of monthly statements for her Costco-branded Citi Visa
account for December 27, 2019, through September 25,
2020, only. Yet much more recently, three of her credit union
checking account statements show withdrawals totaling $
1,043.77 that bear the description “CITI CARD ONLINE –
PAYMENT.” This suggests that Plaintiff either has contin-
ued to maintain the Costco-branded Visa account but failed
to provide all the records called for in the May 25, 2023,
order, or that she maintained a different Citi account for
which she failed to provide any statements whatsoever.10
D. 	Legal Standard and Application to Plaintiff’s Evidence
Under ORS 305.419(1), income taxpayers generally
must pay the amounts assessed in order to pursue an appeal
of the assessment in this court. A taxpayer seeking to defer
that payment obligation in hopes of prevailing on appeal
10 The court notes that Plaintiff’s affidavits also raise a question about her
access to gifts. Her affidavits show that she owns furniture and makes monthly
utility payments, but the affidavits indicate that she owns no real property and
pays no rent, including rent for a place to park the listed trailer with access to
utility connections. Her federal income tax returns show no income from barter
transactions. The statement in her declaration regarding gifts is ambiguous, as
gifts are excluded from gross income and would not be reported on income tax
returns. Because the court resolves Plaintiff’s motion on other grounds as dis-
cussed below, the court sees no need to pursue these questions further.

Cite as 25 OTR 369 (2023) 	381
and voiding the assessment must “establish undue hard-
ship,” and failure to do so “will be cause for dismissing the
complaint.” ORS 305.419(3).11 The burden is on the taxpayer
to prove undue hardship by a preponderance of the evidence.
See ORS 305.427; Picker v. Dept. of Rev., 370 Or 673, 679,
523 P3d 109 (2022).
The amount of the assessment in this case would
be substantial for most individual taxpayers. However, the
“undue hardship” standard requires the court to consider
the amount assessed in relation to the taxpayer’s particu-
lar circumstances. This court has construed the standard
to mean that the legislature “certainly intended the court
to grant hardship relief where immediate payment of the
tax would prevent a taxpayer from maintaining a minimal
standard of living.” Peterson v. Dept. of Rev., 23 OTR 554,
561 (2019). In addition, “the legislature authorized the court
to consider other potential factors, such as an excessive, per-
manent loss that would be caused when a taxpayer would
have to sell off property at a distress sale price.” Id.
Finally, the court has observed: “Implicitly, by using
the word ‘undue,’ the legislature also authorized the court
to weigh the public policy of ensuring public access to an
appeal against the public benefit of an immediate collection
(and elimination of the corresponding risk of abuse by tax-
payers seeking primarily to delay).” Id.
In this case, Plaintiff’s affidavits, declaration, and
documents omit important information specifically iden-
tified in the court’s form of affidavit and in the May 25,
2023, order. Plaintiff has repeatedly failed to disclose, as
requested on the court’s form of affidavit, the value of any
interest in a business even though she claims that “profits”
from an LLC are her sole source of support. She also has
failed to provide copies of Schedule K-1s from any business
entities, as the court ordered on May 25, 2023. The latter
failure is significant because Weedbucks, LLC, is identi-
fied on Plaintiff’s federal tax returns as a partnership. This
means that Weedbucks, LLC, necessarily has at least one
11 The Oregon Supreme Court recently stated: “The required payment
[under ORS 305.419(1)] is mandatory and jurisdictional unless the exception set
out in subsection (3) applies.” Picker, 370 Or at 678 (2022).

382 	Gua v. Dept. of Rev.
owner other than Plaintiff. See Treas Reg § 301.7701-2(a)
(2023) (“A business entity with two or more members is clas-
sified for federal tax purposes as either a corporation or a
partnership. A business entity with only one owner is classi-
fied as a corporation or is disregarded[.]”); ORS 63.810 (“For
purposes of [Oregon income tax] a limited liability company
* * * shall be classified in the same manner as it is classi-
fied for federal income tax purposes.”). Therefore, like Forms
W-2 from employers or Forms 1099 from business customers,
K-1s from Weedbucks, LLC, potentially would provide some
measure of third-party verification, on a form filed with the
Internal Revenue Service, of Plaintiff’s taxable income.
Plaintiff’s 	banking 	and 	credit 	card 	statements
fall short of substantiating her position of undue hardship.
They suggest that Plaintiff commingles business and per-
sonal expenses on the same credit card account and pays
all of them primarily with cash rather than from her check-
ing account. By themselves, these facts do not undermine
Plaintiff’s position.12 However, they undoubtedly increase
Plaintiff’s burden to prove undue hardship. Plaintiff, who
has owned and managed a business the last five years, would
have been aware that her financial institution records do not
allow a reader to verify the amounts she earns and spends,
but she took no steps to identify transactions on her credit
card that substantiate her claimed personal expenses, nor
did she ask the court for additional time to do so.13 Moreover,
the records she did provide suggest that Plaintiff holds at
least one credit card, from Citi, for which she failed to pro-
vide statements, and that some electronic transfers to pay
both her Citi Visa account and her Bank of America Visa
account may have been made from an undisclosed account.
Although the court can glean little from the docu-
ments Plaintiff provided to the court regarding the extent
of any hardship Plaintiff might suffer from paying the
12 Plaintiff describes her business as a “Cannabis business.” The court is
aware that federal law restricts the access of certain cannabis businesses to
certain banking services, such that the businesses largely use cash to operate.
See Secure and Fair Enforcement Regulation Banking Act, S. 2860, 118th Cong.
(2023) (bill proposing to overturn certain such restrictions).
13 Section 9 of the court’s form of affidavit, which Plaintiff filed twice,
prompts a taxpayer to provide “other information the court should know.”

Cite as 25 OTR 369 (2023) 	383
assessment immediately, the court finds some insight in the
amount of time she has allowed her returns to go unfiled
and her tax unpaid. Her Oregon returns delivered in August
2023 acknowledge that she owes tax for two of the years
at issue: 2018 and 2019. Those returns were due four and
three years ago, respectively. She is deemed to be aware
that the law imposes substantial adverse consequences
when a taxpayer fails to file a return. Dungey v. Fairview
Farms, Inc., 205 Or 615, 621, 290 P2d 181 (1955) (“Every
person is presumed to know the law[.]”). Interest has been
accruing on the assessed tax. She has chosen to expend time
and effort on appeals, but her extensive delay in filing the
returns themselves, and paying the amount she owes, does
not suggest the kind of urgency that the court ordinarily
would associate with an “undue hardship” if she is required
to pay the assessment.
The court concludes that Plaintiff has failed to
prove undue hardship, based solely on the information she
has provided to the court on that subject, and without con-
sidering additional evidence proffered by Defendant. Having
reached that conclusion, the court now turns to the parties’
arguments under ORS 305.265(10) about the sufficiency
of Oregon personal income tax returns Plaintiff sent to
Defendant in August and September 2023 and Defendant’s
actions with respect to those returns.
II. 	PLAINTIFF’S MOTION UNDER ORS 305.265(1);
MOTION TO DISMISS
A. 	Parties’ Filings
In her August 17, 2023, filing, shortly before her
extended deadline to provide substantiating documents,
Plaintiff included a first motion for abeyance of this case
until September 18, 2023. She asserted that she had recently
been able to locate the information needed to prepare her tax
returns, as well as a tax accountant familiar with the can-
nabis business, and that her tax returns for 2016 through
2019 were “complete and ready to be submitted to the Oregon
Department of Revenue.” (Emphasis added.) On August 21,
2023, Defendant objected to abating proceedings because
it had not actually received any of Plaintiff’s returns. On

384 	Gua v. Dept. of Rev.
August 25, 2023, the court denied Plaintiff’s first motion for
abeyance and left the August 30, 2023, deadline in place.
Gua v. Dept. of Rev., TC 5453 (Aug 25, 2023) (slip op at 3).
Also on August 25, 2023, Plaintiff sent copies of her
returns to Defendant, apparently by email. On August 29,
2023, Defendant sent the court a letter stating that it had
received Plaintiff’s 2016 through 2019 Oregon tax returns
but had rejected them because they “did not contain infor-
mation that would allow [Defendant] to assess if the returns
[were] substantially correct.” Defendant’s letter stated fur-
ther that, “if the plaintiff wishes to continue her appeal of
the income tax assessment for the tax years 2016 through
2019, she must comply with the court’s August 9, 2023, order
to provide sufficient evidence by August 30, 2023, that the
assessment would cause undue hardship.” On August 30,
2023, Plaintiff filed a letter with the court stating that she
had resubmitted her 2016 through 2019 Oregon tax returns
to Defendant, this time with copies of federal returns for
those years. She stated that she had asked Defendant’s
auditor to request a stay of proceedings in this matter as
allowed under ORS 305.265(10). The court treats Plaintiff’s
August 30 letter as a second motion for abeyance.
On September 21, 2023, the court scheduled a case
management 	conference 	to 	obtain 	current 	information
about the parties’ positions, including whether Defendant
had received and accepted the returns Plaintiff claimed to
have resubmitted on August 30. On September 28, 2023,
Defendant filed its Motion to Dismiss, arguing that dis-
missal is proper because Plaintiff had failed to prove undue
hardship and because the court lacks jurisdiction to review
Defendant’s 	actions 	regarding 	Plaintiff’s 	recently 	filed
returns. Having received Defendant’s motion, the court can-
celed its case management conference. On October 9, 2023,
Plaintiff objected to dismissal and requested a hearing
regarding the processing of her returns.
B. 	Analysis Under ORS 305.265(10)
Both parties refer to ORS 305.265(10) in their brief-
ings since August 27, 2023. That statute, dating materially
to 1999, provides various procedures that apply when, as

Cite as 25 OTR 369 (2023) 	385
here, a taxpayer fails to file returns.14 Paragraph (a) requires
Defendant to “determine the tax according to the best of its infor-
mation and belief, [and to] assess the tax plus appropriate pen-
alty and interest * * *.” (Emphasis added.) Paragraphs (b) and
(c) provide circumstances in which Defendant may accept or
reject returns the taxpayer chooses to file after having been so
assessed. Under paragraph (d), the taxpayer may appeal the
rejection of a return “to the magistrate division of the Oregon
Tax Court,” but “only if” the return was filed within 90 days
of the assessment and the appeal is filed within 90 days after
the notice of rejection. Paragraph (e) applies when, as here,
the taxpayer has both appealed the assessment to the Tax
Court and filed returns that Defendant has not yet accepted
or rejected; that provision allows “the department” to request
a stay of action from the court pending review of the returns.
Assuming that Defendant does accept the late-filed returns,
paragraphs (f) and (g) allow Defendant to reduce the assess-
ment, and to issue refunds.
The court finds nothing in ORS 305.265(10) that
authorizes this division of the court to act with respect to
Defendant’s processing or handling of the returns Plaintiff
filed in this case. Paragraph (e) does not apply because that
provision requires Defendant to have requested a stay, and
it has not done so. As to paragraph (d), there is evidence that
Defendant rejected the returns Plaintiff delivered August
25, 2023, but the statute expressly requires any appeal of
that rejection to be filed in the Magistrate Division. Plaintiff
argues that Defendant has not notified her whether it has
accepted or rejected the set of returns she resubmitted on
August 30, 2023. She urges the court to hold a hearing “to
hear from the proper DOR employee who oversees receiving
the tax returns of Plaintiff, to come before the court and give
testimony under oath to determine whether the DOR has
accepted the tax returns of Plaintiff or rejected them * * *.”
However, an alleged failure to issue a notice of rejection is
an “omission” that likewise must be heard in the Magistrate
Division in the first instance. See ORS 305.275(1)(a), (b);
ORS 305.501(1). The court concludes that there is no basis
for the hearing Plaintiff seeks in this division.
14 See Or Laws 1999, ch 532 (SB 495).

386 	Gua v. Dept. of Rev.
III. 	CONCLUSIONS
The 	court 	finds 	no 	undue 	hardship; 	therefore,
Plaintiffs Motion for Stay of Payment of Income Tax is
denied. As permitted by ORS 305.419(3), the court will allow
Plaintiff until January 8, 2024, to pay the tax, penalty, and
interest assessed in this case. Defendant is to notify the
court and Plaintiff no later than January 17, 2024, whether
Plaintiff has paid the amounts assessed.
The court further concludes that ORS 305.265(10)
does not authorize the court to grant Plaintiffs second
motion for abeyance, and the court declines to grant abey-
ance on any other ground. Plaintiffs second motion for abey-
ance is denied.
Accordingly, 	if 	Plaintiff 	fails 	to 	timely 	comply
with the payment requirement above, the court will grant
Defendant’s Motion to Dismiss. If Plaintiff timely complies
with the payment requirement above, the court will deny
Defendant’s Motion to Dismiss, and the case will proceed as
provided in the court’s rules. Now, therefore,
IT IS SO ORDERED.
ORDER OF JANUARY 31, 2024
This personal income tax case is before the court on
Defendant’s Motion to Dismiss dated September 28, 2023.
The basis for Defendant’s motion is that Plaintiff has failed
to pay the tax, penalty, and interest assessed to her, or to
establish that doing so would be an undue hardship, as
required by ORS 305.419(3). In a December 8, 2023, order on
Plaintiff’s motion to stay the requirement to pay her assess-
ment, the court:
(1) 	Recited the proceedings and the parties’ arguments;
(2) 	Found that Plaintiff had failed to establish that pay-
ment of the assessed tax, penalty, and interest would be an
undue hardship under ORS 305.419(3);
(3) 	Denied Plaintiff’s motion to stay the requirement to
pay the assessment;
(4) 	Allowed Plaintiff until January 8, 2024, to pay the
assessment; and

Cite as 25 OTR 369 (2023) 	387
(5) 	Directed Defendant to report on or before January 17,
2024, whether Plaintiff had paid the amounts assessed.
On January 17, 2024, Defendant filed its report,
stating that Plaintiff had made payments totaling $4,000
for certain of the tax years at issue. The total amount
assessed, not counting those payments, was $871,426.72.
Defendant added: “Plaintiff does not have an agreed upon
and accepted payment plan with the defendant regarding
payment of the taxes, penalties, and interest assessed in
this case.” Defendant urged the court to grant its motion to
dismiss.
On January 31, 2024, Plaintiff filed a “Motion to
Vacate” the court’s December 8, 2023, order. The motion
declares the proceedings to date to be a “substantive and
procedural nullity,” fraudulent, and the result of a “conspir-
acy” to violate provisions of the federal Internal Revenue
Code. Nothing in the motion disputes Defendant’s report
regarding the amount of Plaintiff’s payments or the non-ex-
istence of an agreed payment plan.
Based on the foregoing, the court finds that Plaintiff
has failed to pay the tax, penalty, and interest assessed, to
the extent of the difference between the total assessment
($871,426.72 including interest as of September 28, 2021),
and the payments made ($4,000 as of January 17, 2024).
Plaintiff having neither paid the assessment nor established
hardship, now, therefore,
IT 	IS 	ORDERED 	that 	Defendant’s 	Motion 	to
Dismiss is granted; and
IT 	IS 	FURTHER 	ORDERED 	that 	Plaintiff’s
Motion to Vacate Order Denying Plaintiff’s Motion for Stay
of Payment of Income Tax and Denying Plaintiff’s Second
Motion for Abeyance is denied.