Gua v. Dept. of Rev.

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 1 of 17
IN THE OREGON TAX COURT
REGULAR DIVISION
Income Tax
CINDY GUA,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant.
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TC 5453
ORDER DENYING PLAINTIFF’S
MOTION FOR STAY OF PAYMENT OF
INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR
ABEYANCE (REDACTED)
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);1 (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. 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
1 Unless otherwise specified, the court’s references to the Oregon Revised Statutes (ORS) are to the 2021
edition.

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 2 of 17
of August 27, 2021, is $869,979.87.2 (Def’s Mot Dismiss, Ex B.) 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. 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
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

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 3 of 17
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 interest. (Def’s Resp Mot Stay Pmt at 3.)
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 declaration 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. (Def’s Decl of Lawson at 1.)
• 	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. (Id. at 1-2.)
• 	“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.” (Id. at 2.)
The auditor’s declaration attaches two orders by the magistrate in the case from which
Plaintiff now appeals. The concluding 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 assessments are in error or should
be modified. The court previously 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
3 Plaintiff later delivered a set of returns to Defendant in late August or early September 2023, as discussed
below.

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 4 of 17
requested documents to Defendant. Plaintiff’s failure to comply may result in
dismissal of this case.”
(Def’s Decl of Lawson, Ex 1 at 6.) 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 deadline 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.”
(Id., Ex 2 at 2.) The February 6 order was followed by the magistrate’s Decision of Dismissal
dated February 27, 2023, from which Plaintiff timely appealed by filing her complaint in this
division. (See Ptf’s Compl, Ex 1.)
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.
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. (Ptf’s Mot 30 Days More
Time Resp Court’s Order at 1); 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. (Ptf’s 2d Mot 30 Days More Time at 1.) 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

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 5 of 17
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 (See Ptf’s Initial Set Documents and Request Place Case
on Hold.) (Ptf’s Initial Set Docs) 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 complete 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 order.
The table below summarizes all documents ordered to be provided to the court and Plaintiff’s
responses:
/ / /
/ / /
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.” (3) The addition of “(VARIES FOR PERSONAL EXPENSES)” as a description of her credit card
payments.

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 6 of 17
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 (Ptf’s
Decl of Gua, Ex 1)
Copies for 2020, 2021, and 2022 provided to court
(Id., Ex 5)
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.” (Ptf’s Decl of Gua at 3)
4 	Monthly statements for any bank,
brokerage firm, or other financial
institution with which Plaintiff held an
account, including balances and monthly
transactions, 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 (Ptf’s Initial
Set Docs)
5 	Monthly credit card statements for all
credit cards, including balances and
itemized transactions, for January 1,
2020, through April 30, 2023
Citi credit card statements for billing periods
beginning December 27, 2019, and ending
September 25, 2020 (Ptf’s Initial Set Docs)
Bank of America credit card statements for billing
periods beginning December 11, 2019, and ending
May 10, 2023 (Ptf’s Initial Set Docs)
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.” (Ptf’s Decl of Gua at 3.)
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
5 Plaintiff filed the October 9, 2023, declaration and copies of federal income tax returns well after the
court’s August 30, 2023, deadline.

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 7 of 17
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. (Ptf’s Decl of Gua, Ex 5 (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 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 business and
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 statements 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 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. (See Bank of America Visa Signature Card
Statements, contained in Ptf’s Initial Set Docs.)

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 8 of 17
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 payment,” or “ATM PAYMENT,” typically made once or twice per month.
By contrast, the credit union checking account statements 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. (Ptf’s Initial Set Docs, Rogue Credit Union Stmt Ending 10/31/22 at 5.) 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). (Id., Rogue Credit Union Stmt Ending 3/31/2022 at 4.)
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 provided, apart from the single payment of $107 noted above. 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

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 9 of 17
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 “utilities.” The court finds no entries on
any monthly statements that clearly correspond to a utility bill. As for the remaining $2,110 total
monthly expenses listed on Plaintiff’s affidavits (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 corresponding 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 living 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 copies of all “Forms W-2, 1099 (of
any kind), or K-1 directed to Plaintiff,” but Plaintiff’s August 17, 2023, affidavit nevertheless
fails to list any interest in a business entity or the value of that interest, and she provided no
copies of K-1s. Plaintiff later provided copies of federal income tax returns for herself, on
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.

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 10 of 17
October 9, 2023, showing “Nonpassive income from Schedule K-1” from Weedbucks, LLC.
(Emphasis added.) (See, e.g., Ptf’s Decl of Gua, Ex 3 (2018 Schedule E at 2).) The court finds
that these omissions--particularly the failure to provide 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. 	The
payments made on the Bank of America Visa account, from January 2020 through October 2022,
are described as “BA ELECTRONIC PAYMENT.” During this period, 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 copies 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, with a description labeled
“CITI CARD ONLINE – PAYMENT.” (Ptf’s Initial Set Docs (Rogue Credit Union Stmt
Ending 9/30/2022 at 4; Rogue Credit Union Stmt Ending 10/31/2022 at 4; Rogue Credit Union
Stmt Ending 1/31/2023 at 3).) This suggests that Plaintiff either has continued 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
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

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 11 of 17
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 and voiding the assessment must “establish
undue hardship,” 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 particular 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, permanent 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
taxpayers seeking primarily to delay).” Id.
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 discussed below, the court sees no need to pursue
these questions further.
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).

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 12 of 17
In this case, Plaintiff’s affidavits, declaration, and documents omit important information
specifically identified 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
identified on Plaintiff’s federal tax returns as a partnership. This means that Weedbucks, LLC,
necessarily has at least one owner other than Plaintiff. See Treas Reg § 301.7701-2(a) (2023)
(“A business entity with two or more members is classified for federal tax purposes as either a
corporation or a partnership. A business entity with only one owner is classified 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 classified 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 personal expenses on the
same credit card account and pays all of them primarily with cash rather than from her checking
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
12 Plaintiff describes her business as a “Cannabis business.” (Ptf’s Initial Set Docs at 1.) 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).

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 13 of 17
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 provide 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 documents Plaintiff provided to the court
regarding the extent of any hardship Plaintiff might suffer from paying the 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. (Ptf’s Decl of Gua, Ex 1 (2018 Form OR-
40-N at 4; 2019 Form OR-40-N at 4).) 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 considering additional
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.”

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 14 of 17
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(10); 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 cannabis business,
and that her tax returns for 2016 through 2019 were “complete and ready to be submitted to the
Oregon Department of Revenue.” (Ptf’s Initial Set Docs at 1 (emphasis added).) On August 21,
2023, Defendant objected to abating proceedings because it had not actually received any of
Plaintiff’s returns. (Def’s Resp Mot Place Case on Hold at 1-3.) On 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. (See Def’s Mot to Dismiss, Ex 3.) 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 information that would allow [Defendant] to assess if the
returns [were] substantially correct.” (Def’s Ltr at 1, Aug 29, 2023.) Defendant’s letter stated
further 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

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 15 of 17
sufficient evidence by August 30, 2023, that the assessment would cause undue hardship.” (Id.)
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. (See Ptf’s Ltr at 1, Aug 30, 2023; Ptf’s Decl of Gua at 2.) 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). (See id.) 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 dismissal 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 canceled its case management conference. On October 9, 2023, Plaintiff
objected to dismissal and requested a hearing regarding the processing of her returns. (Ptf’s Mot
Deny at 1, 9-10.)
B. 	Analysis Under ORS 305.265(10)
Both parties refer to ORS 305.265(10) in their briefings since August 27, 2023. That
statute, dating materially to 1999, provides various procedures that apply when, as here, a
taxpayer fails to file returns.14 Paragraph (a) requires Defendant to “determine the tax according
to the best of its information and belief, [and to] assess the tax plus appropriate penalty and
14 See Or Laws 1999, ch 532 (SB 495).

ORDER DENYING PLAINTIFF’S MOTION FOR STAY
OF PAYMENT OF INCOME TAX AND DENYING
PLANTIFF’S SECOND MOTION FOR ABEYANCE
TC 5453 	Page 16 of 17
interest * * *.” (Emphasis added.)15 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 assessment,
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. (See
Ptf’s Mot to Deny at 5.) 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
15 Other references to assessment based on Defendant’s “best information and belief” appear elsewhere in
Oregon income tax law. See, e.g., ORS 314.400(2)(b), (3)(b); see generally Rau v. Dept. of Rev., 13 OTR 190, 193
(1994) (“The law makes the tax assessed by the department the final tax regardless of what the taxpayer’s actual
income or tax liability may have been. It is a painful lesson for most taxpayers because a tax based on the
department’s best information and belief, plus the penalties and interest that must be imposed, almost always exceed
the amount of a self-assessed tax. This is strong medicine but it may be necessary to keep a self-assessed tax system
healthy.”); Curtis v. Dept. of Rev., 338 Or 579, 581, 112 P3d 330 (2005) (upholding Defendant’s “best information”
assessment).

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 	* 	* 	*" (Id.) 	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(l). 	The 	court 	concludes 	that 	there 	is 	no 	basis 	for 	the
hearing 	Plaintiff seeks in 	this 	division.
lll. 	CONCLUSIONS
The 	court 	finds 	no 	undue 	hardship; 	therefore, 	Plaintiff's 	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
Plaintiff's 	second 	motion 	for 	abeyance, 	and 	the 	court 	declines 	to 	grant 	abeyance 	on 	any 	other
ground. 	Plaintiffs 	second 	motion 	for 	abeyance 	is 	denied.
Accordingly, 	if Plaintiff fails 	to 	timely 	comply 	with 	the 	payment 	requirement 	above, 	the
court 	will 	grant 	Defendant's 	Motion 	to 	Dismiss. 	lf 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,
1T 	IS 	SO 	ORDERED.
Dated 	this 	8th 	day 	of December, 	2023.
12/8/2023 	10:42:35 AM
(Y
Judge 	Robert T. 	Manlcke
ORDER 	DENYING 	PLAINTIFF'S 	MOTION 	FOR 	STAY
OF 	PAYMENT 	OF 	INCOME 	TAX 	AND 	DENYING
PLANTIFF'S 	SECOND 	MOTION 	FOR 	ABEYANCE
TC 	5453 	Page 	17 	of 	17