Okon v. Dept. of Rev.

ORDER ON PLAINTIFFS’ MOTION FOR STAY OF
PAYMENT OF INCOME TAX 	TC 5454 	Page 1 of 4
IN THE OREGON TAX COURT
REGULAR DIVISION
Income Tax
EFION E. OKON and HELEN J. EKPO,
Plaintiffs,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant.
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TC 5454
ORDER ON PLAINTIFFS’ MOTION
FOR STAY OF PAYMENT OF INCOME
TAX
This matter again comes before the court on Plaintiffs’ allegation that immediate payment
of the amounts assessed would constitute an undue hardship under ORS 305.419(3). Plaintiffs,
not represented by counsel, filed their complaint in this division on May 8, 2023, without paying
the assessment and without moving for a stay or filing the affidavit allowed under
ORS 305.419(3). On May 24, 2023, Defendant moved to dismiss. On May 25, 2023, the court
issued its Order on Defendant’s Motion to Dismiss; Notice to Plaintiffs of Lack of Affidavit
Alleging Hardship, informing Plaintiffs of their right to move for a stay, supported by an
affidavit, and directing them to so move or to otherwise respond to Defendant’s motion within 30
days.
On June 20, 2023, Plaintiffs filed a Motion for Stay of Payment of Income Tax,
accompanied by a completed and notarized affidavit on the form available on the court’s
website. The form asks an affiant to disclose income and expense data and includes a line item

ORDER ON PLAINTIFFS’ MOTION FOR STAY OF
PAYMENT OF INCOME TAX 	TC 5454 	Page 2 of 4
for “Rent/Mortgage,” but the form does not specifically ask about tax liens. Defendant objected
on July 18, 2023, asserting that the data in Plaintiffs’ affidavit indicated an ability to pay the
assessment, without undue hardship, by obtaining a loan secured by their equity in their
home. The objection states that, apart from their mortgage, Plaintiffs “do not list any other liens
against their home.” Neither Defendant’s objection nor the supporting auditor declaration
otherwise indicated whether any federal or Oregon tax liens applied against Plaintiffs. The
declaration did state that Plaintiffs are on a payment plan with Defendant for their tax liabilities
for tax years not at issue in this case.
In an order dated July 20, 2023, the court directed Plaintiffs to submit additional
documents and a narrative statement, under penalty of perjury, to address whether they are able
to borrow the funds to pay the assessed amounts in this case without undue hardship. In
response, Plaintiffs submitted a one-page letter on August 15, 2023, without any supporting
documents, and not under penalty of perjury. The August 15 letter did, however, state: “[W]e
are unable to get the loan or a second mortgage against our property due to existing lien on the
property by the IRS as well as Oregon Department of Revenue (ODR).”
The court convened a case management conference to clarify the quoted statement,
informing the parties that the court “may require Plaintiffs to testify under oath and/or submit
additional information as to their efforts to borrow the funds needed to pay the
assessment.” (Court’s email to parties, Sept 21, 2023.) At the case management conference,
held October 10, 2023, Plaintiff Okon described the Oregon and federal liens and said that they
have adversely affected his credit rating. Defendant’s counsel acknowledged the existence of an
Oregon lien but stated that it had been released in mid-September 2023. The court did not put
Okon under oath. Defendant requested further proof of the amount of the federal lien, including

ORDER ON PLAINTIFFS’ MOTION FOR STAY OF
PAYMENT OF INCOME TAX 	TC 5454 	Page 3 of 4
the total amount, proof of monthly payments, and proof of Okon’s statement at the conference
that the monthly payment on the federal lien would substantially increase in amount in early
2024. The court directed Plaintiffs to submit the requested information to Defendant and to the
court within one week. The court also directed Defendant to submit proof of the release of the
Oregon lien.
On October 16, 2023, Plaintiffs submitted documents addressing each of the points
requested by Defendant and directed by the court. In addition, Plaintiffs submitted copies of two
documents entitled “Notice of Lien Release” dated September 14, 2023, each with a unique lien
number indicating that the lien had been recorded in Washington County on March 30, 2018, and
released on September 14, 2023. Defendant has not submitted a filing regarding release of the
Oregon lien or liens.
The court makes the following procedural observations. First, the court recognizes that
its form of affidavit should be modified to specifically address any liens against a taxpayer or
against property of a taxpayer. Second, Defendant should take the existence of any type of lien
into account before objecting on the grounds of a taxpayer’s ability to borrow funds to pay the
assessment. Third, taxpayers are well served to closely follow the court’s instructions. Parties in
future cases should expect the court to make greater use of its ability to convene a hearing under
Tax Court Rule 18 C(3)(b), which may include the taking of sworn testimony and the
authentication of exhibits.
In light of Plaintiff’s submission of documents on October 16, 2023, the court directs
Defendant to inform the court on or before October 27, 2023, whether Defendant continues to
object to Plaintiffs’ Motion for Stay of Payment of Income Tax. Now, therefore,

IT 	IS 	ORDERED 	that 	Defendant 	inform 	the 	court 	on 	or 	before 	October 	27, 	2023,
Whether 	Defendant 	continues 	to 	object 	to 	Plaintiffs' 	Motion 	for 	Stay 	of Payment 	of Income 	Tax.
IT 	IS 	FURTHER 	ORDERED 	that 	the 	court's 	order 	of July 	20, 	2023, 	is 	superseded 	by
this 	order.
Dated 	this 	19th 	day 	of October 	2023.
10/19/2023 2:27:51 	PM
a 	,
Judge 	Robert T. 	Manlcke
ORDER 	ON 	PLAINTIFFS' 	MOTION 	FOR 	STAY 	OF
PAYMENT 	OF 	INCOME 	TAX 	TC 	5454 	Page 	4 	of 4