Belmont Auto Service v. Dept. of Rev.

FINAL DECISION TC-MD 180249N 1
IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Cigarette/Tobacco Tax
BELMONT AUTO SERVICE INC., )
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Plaintiff, TC-MD 180249N
v.
DEPARTMENT OF REVENUE,
State of Oregon,
FINAL DECISION1	Defendant.
Plaintiff filed its Complaint on May 31, 2018, contesting Defendant’s Notice of Determination
and Assessment (notice), dated June 7, 2017, for the 2017 tax year. The notice stated that Plaintiff was
“not able to prove tax was paid on some of all of [Plaintiff’s] inventory of tobacco products. These
products are presumed to be untaxed * * *.” At the time of filing its Complaint, Plaintiff provided
invoices and requested to be reimbursed for tax already paid. (Compl at 5.)
In its Answer, Defendant disagreed that the “tobacco items in question had ever been substantiated
as tax-paid, as required under ORS 323.538. The products were not substantiated as tax-paid at the time of
inspection. After the inspection, the [P]laintiff had never provided records documenting the products were
tax paid * * *.” Defendant stated that it was willing to review any “invoices or records” provided in this
appeal and “to decrease the tax for any items substantiated as tax paid.”
During the case management conference held July 10, 2018, Plaintiff agreed to provide
Defendant with additional invoices for review, and Defendant agreed to file its recommendations
no later than August 15, 2018. Plaintiff agreed to file its response by August 29, 2018. (Journal
1 This Final Decision incorporates without change the court’s Decision, entered October 3, 2018. The court
did not receive a statement of costs and disbursements within 14 days after its Decision was entered. See Tax Court
Rule–Magistrate Division (TCR–MD) 16 C(1).

FINAL DECISION TC-MD 180249N 2
Entry, July 11, 2018.)
Defendant filed its Update with the court on August 15, 2018, reporting that it had provided
Plaintiff with a list of 10 unsubstantiated items, and, based on Plaintiff’s response, was able to substantiate
one additional item as tax paid. Defendant further reported that it requested “verifying invoices for the
remaining unsubstantiated items” but received no further response from Plaintiff. Defendant stated that
after substantiating the one additional item, Plaintiff’s original total tax and penalty of $649.04 was
reduced to $243.46 — “tax of $121.73; penalty of $121.73.”
After Plaintiff failed to respond by August 29, 2018, the court entered an Order on
September 5, 2018, giving Plaintiff 14 days to state whether it accepted Defendant’s
recommendations in full or part; the appeal is withdrawn; or trial is requested. The Order further
stated that if Plaintiff failed to respond, the court would enter a decision based on Defendant’s
recommendations. As of this date, the court has not received any communication from Plaintiff.
This case is now ready for decision. Now, therefore,
IT IS THE DECISION OF THIS COURT that, based upon Defendant’s recommendations,
Plaintiff’s total tobacco products tax and penalty for tax year 2017 is $243.46.
Dated this day of October 2018.
ALLISON R. BOOMER
MAGISTRATE
This decision is the court’s determination on the merits. A prevailing party may file a
statement of costs and disbursements no later than 14 days after the entry date of this
decision, as provided in Tax Court Rule – Magistrate Division (TCR-MD) 16.
Thereafter, the court will issue a final decision. Any claim of error regarding this
decision may be raised in an appeal of the court’s final decision.
This document was signed by Magistrate Allison R. Boomer and entered on
October 19, 2018.