S055852, Opinion — Garrison v. Dept. of Rev.

544
Submitted on the record November 20,judgment of Tax Court affirmed
December 31, 2008
Michael J. GARRISON,
Appellant,
v.
DEPARTMENT OF REVENUE,
Respondent.
(TC 4 796; SC 8055852)
200 P3d 126

545
CJS, Taxation § 1105.
En Banc
On appeal from the Oregon Tax Court.*
Henry C. Breithaupt, Judge.
Michael J. Garrison, appellant, filed the briefs on behalf of
himself.
Melisse S. 	Cunningham, Assistant Attorney General,
Salem, filed the brief for respondent. With her on the brief
was Hardy Myers, Attorney General.
BALMER,J.
The judgment of the Tax Court is affirmed.
* 19 OTR 398 (2008).

546 	Garrison v. Dept. of Rev.
BALMER,J.
Taxpayer appeals from a decision of the Regular
Division of the Oregon Tax Court that dismissed his appeal
from the Magistrate Division to the Regular Division as
untimely. For the reasons set out below, we affirm the judg-
ment of the Tax Court.
The facts, which are undisputed, are taken from the
Tax Court decision and the record. On June 23, 2006, the
Department of Revenue issued an individual assessment
against taxpayer relating to income taxes for the year 2004.
The assessment informed taxpayer of his right to an appeal
and indicated that an appeal to the Tax Court (which is
initiated by filing a "complaint") must be filed with the
Magistrate Division of that court within 90 days of the date of
the assessment notice, as required by ORS 305.280(2). Tax-
payer filed his complaint on October 13, 2006, approximately
three weeks late. The department moved to dismiss the com-
plaint as untimely, and the Magistrate Division granted the
motion in a written order filed on May 30, 2007. That order
informed taxpayer that if he wanted to appeal the dismissal
to the Regular Division of the Tax Court, he had to file a com-
plaint with that division within 60 days of the date of the
order of dismissal, as required by ORS 305.501(5)(a). The
order also stated that, if taxpayer did not appeal, the order
would become final. Sixty days from May 30, 2007, was July
29, 2007. Because that day was a Sunday, taxpayer had until
the following day, Monday, July 30, to file his complaint in
the Regular Division. See TCR 10 A(l) (describing time
computation).
On July 26, 2007, taxpayer sent the Tax Court
a document that he labeled "Notice of Appeal." Taxpayer
did 	not, 	however, 	include the 	required filing fee. 	ORS
305.490(1)(b) requires a plaintiff to pay $50 for each com-
plaint filed in the Regular Division, with certain exceptions
not applicable here. 1 The Tax Court stamped taxpayer's
1 ORS 305.490 provides, in part:
"(1) Plaintiffs or petitioners filing a complaint or petition in the tax court
shall pay a filing fee for each complaint or petition as follows:
~'* * * * *
"(b) For a complaint or petition in the regular division, $50."

Cite as 345 Or 544 (2008) 	547
document "received" and returned it to taxpayer with a letter
containing instructions on how to file an appeal. The letter to
taxpayer stated that a complaint in the Regular Division
appealing a decision of the Magistrate Division must be
accompanied by the $50 filing fee or by a motion for a waiver
or deferral of that fee.
On August 29, 2007, taxpayer again submitted his
"Notice of Appeal" to the Tax Court, this time with the filing
fee. The Tax Court treated the document as a complaint and
filed it. The department then moved to dismiss the taxpayer's
complaint on the grounds that the appeal was untimely. The
Regular Division of the Tax Court granted the motion. It
later denied taxpayer's motion for reconsideration.
Taxpayer now appeals from the decision of the
Regular Division of the Tax Court dismissing his complaint.
We review decisions of the Tax Court for "errors or questions
oflaw or lack of substantial evidence in the record to support
the tax court's decision or order." ORS 305.445.
The Regular Division of the Tax Court considers
appeals from decisions of the Magistrate Division. ORS
305.501(5)(a) provides that "[a]ny party dissatisfied with a
written decision of a magistrate may appeal the decision to
the judge of the tax court by filing a complaint in the regular
division of the tax court within 60 days after the date of entry
of the written decision." However, more is required to perfect
an appeal than merely lodging a complaint in the Tax Court.
As noted, a taxpayer who seeks to file such a complaint must
submit a filing fee of $50 for each complaint, subject to cer-
tain exceptions not at issue here.
The Tax Court has adopted a rule requiring that the
filing fee or a request for waiver of the fee accompany the
complaint:
"Unless exempt by law, the plaintiff shall pay a $50 fil-
ing fee as provided by ORS 305.490. That fee must be ten-
dered at the time of the filing of the complaint. If the plain-
tiff wishes the court to consider a motion for deferral or
waiver of the filing fee, as provided under ORS 21.605, the
plaintiff shall make such motion to the court at the time of
filing the complaint and serve the motion on all parties to
the appeal."

548 	Garrison v. Dept. of Rev.
TCR 1 E (emphasis added). Moreover, the Tax Court has
adopted a related rule providing that the clerk "shall file" the
complaint upon the receipt of the complaint "accompanied
by" the filing fee: "Upon receipt of an original * * * complaint
accompanied by * * * a $50 filing fee, the tax court clerk shall
file the complaint in the Regular Division." TCR 1 B (empha-
sis added). Under ORS 305.501(5) and TCR 1 B and 1 E, an
appeal from the Magistrate Division to the Regular Division
is untimely unless it is filed, together with the required filing
fee, within 60 days of the entry of the decision in the
Magistrate 	Division. 	Generally, 	once 	the 	appeal 	period
expires without a party filing a timely complaint, the decision
of the Magistrate Division becomes final. ORS 305.501(7).
Here, as noted, taxpayer initially sought to file a
complaint in the Regular Division without tendering the
required filing fee at the time that he submitted the com-
plaint, and that attempted filing was rejected. When tax-
payer later resubmitted his complaint, accompanied by the
filing fee, as required by TCR 1 B and 1 E, the 60-day period
for filing the complaint had elapsed. As a result, the Tax
Court dismissed the appeal as untimely.
Taxpayer argues that the Tax Court's reasoning is
flawed. He asserts that TCR 1 E, requiring that the filing fee
"must be tendered at the time of the filing of the complaint[,]"
is inconsistent with ORS 305.490(1), which requires only that
the taxpayer "pay a filing fee for each complaint." According
to taxpayer, "[t]he rules of statutory construction do not allow
for construing ORS 305.490 as setting the date [that] a notice
of appeal [is] filed, as the date the filing fee is paid, [when] no
such explicit language appears in that statute." In taxpayer's
view, ORS 305.490 simply requires that the filing fee be paid
at some time, not that the fee must be paid when the com-
plaint is filed or that a complaint is insufficient if it is not
accompanied by a filing fee. Taxpayer acknowledges that
TCR 1 E does require a Tax Court plaintiff to submit the fil-
ing fee "at the time of the filing of the complaint[,]" but argues
that the rule is invalid to the extent that it imposes a require-
ment not established by statute.
We agree that a judicial or agency rule that conflicts
with a statute is invalid to the extent that it so conflicts and

Cite as 345 Or 544 	549
that a rule created within a statutory scheme cannot amend,
alter, enlarge upon, or limit statutory wording so that it has
the effect of undermining the legislative intent. See Miller v.
Employment Division, 290 Or 285, 289, 620 P2d 1377 (1980)
("An agency may not amend, alter, enlarge or limit the terms
of a legislative enactment by rule."). Here, however, we per-
ceive no conflict between the Tax Court rules and any stat-
ute. ORS 305.490(1)(b) requires a plaintiff to pay a filing fee
in connection with the filing of a complaint in the Regular
Division. That statute does not specify when the fee must be
paid, only that the plaintiff must pay it. TCR 1 B and 1 E,
which the Tax Court adopted pursuant to its rulemaking
authority, ORS 305.425(3), 2 require a plaintiff to submit the
filing fee to the Tax Court at the time of the filing of the com-
plaint, and, indeed, that the clerk need not "file" the com-
plaint unless it is accompanied by the fee (or a request for a
waiver of the fee). Because the statute is silent as to when the
filing fee must be paid, we conclude that the Tax Court rules
do not conflict with the statute, but rather aid the application
of the statute by specifying with precision when the plaintiff
must pay the filing fee. As a result, no conflict exists between
the statute and the court rules.
Taxpayer further argues that, even if TCR 1 B and
1 E do not confiict with ORS 305.490, they nevertheless
impermissibly "go beyond the legislative intent" in enacting
that statute because the statute is concerned only with the
payment of the fee and not with the time of payment. We dis-
agree. Taxpayer does not argue that the Tax Court rules were
improperly adopted-only that TCR 1 E is beyond the scope
of the Tax Court's authority. To the contrary, the Tax Court
rules are within that court's authority to require payment of
the fees specified in ORS 305.490. 3
" ORS 305.425(3) provides, in part, that the Tax Court is authorized to adopt
"rules of practice and procedure'' for Tax Court proceedings.
Indeed, there is nothing unusual about requiring the payment of the filing fee
at the time the document to which the fee applies is filed. See ORS 21.110(1) ("[Alt
the time of filing in the circuit court of any civil action, suit or proceeding*** the
clerk of the circuit court shall collect from the plaintiff, appellant or moving party
the sum of $107 as a flat and uniform filing fee" (emphasis added)); ORS 21.110(5)
("A pleading or other document shall be filed by the clerk only if the fee required
under this section is paid by the person filing the document, or if a request for a fee
waiver or deferral is granted by the court.").

550 	Garrison v. Dept. of Rev.
We hold that TCR 1 B and 1 E require that the filing
fee be paid at the time the complaint is filed; that the rules
are permissible procedural rules adopted by the Tax Court
pursuant to ORS 305.425(3); and that the rules do not conflict
with any statute identified by taxpayer. The Tax Court per-
missibly insisted that taxpayer tender the filing fee before
the Tax Court would file taxpayer's complaint and did not err
in dismissing taxpayer's later submission, with the filing fee,
as untimely.
The judgment of the Tax Court is affirmed.