Harder v. Deschutes County Assessor

SUPPLEMENTAL DECISION ON COSTS AND DISBURSEMENTS
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IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
STEPHEN J. HARDER
and CYNTHIA A. HARDER,
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Plaintiffs, 	TC-MD 200126G (Control); 210093G
v.
DESCHUTES COUNTY ASSESSOR,
SUPPLEMENTAL DECISION ON
COSTS AND DISBURSEMENTS	Defendant.
This matter came before the court on Plaintiffs’ Statement for Costs and Disbursements.
The court’s Decision lowered the subject’s real market value from $125,000 to $50,000 on the
2019–20 and 2020–21 tax rolls. Plaintiffs had requested a real market value of $25,000 for each
tax year in their Complaints.
Plaintiffs request an award for costs totaling $1,515.16 as follows: two court filing fees
totaling $562, appraiser’s fees totaling $850, UPS delivery fees totaling $95.96, and a mailing
fee of $7.20 for transmitting the Complaint to the court via certified mail. Plaintiffs
substantiated the appraiser’s fees with invoices and canceled checks, and receipts were provided
for all other costs except the court filing fees.
Defendant objects to awarding costs, alleging that (1) Plaintiffs have not met their burden
of proof under ORS 305.427 to show entitlement to costs and disbursements and (2) Plaintiffs
were not the “prevailing party” under TCR–MD 16 B.1 Defendant also raises specific objections
to allowing Plaintiffs’ costs for the appraiser’s fees and for the certified mailing fee.
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1 Oregon Revised Statutes (ORS); Tax Court Rules – Magistrate Division (TCR–MD)

SUPPLEMENTAL DECISION ON COSTS AND DISBURSEMENTS
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A. 	Burden of Proof
ORS 305.427 provides that the party seeking affirmative relief in this court must bear the
burden of proof by a preponderance of the evidence.
Defendant asserts that parties seeking costs are subject to a “particularly onerous” burden
of proof “because ‘the award of costs and disbursements is entirely discretionary with the
court.’ ” Defendant concludes that Plaintiffs have failed to meet that burden because they merely
cited TCR–MD 16, the court’s rule on awarding costs and disbursements, and “failed to include
any additional ‘facts’ or ‘statutes’ justifying costs and disbursements.”
Defendant’s assertion that claimants seeking costs and disbursements face a “particularly
onerous” burden is followed by a citation to Wihtol v. Multnomah County Assessor, TC–MD 120762N,
2014 WL 274126 (Or Tax M Div Jan 24, 2014), the first Magistrate Division case awarding costs and
disbursements. In that case, the magistrate presented an extensively researched discussion of
magistrates’ then-newfound power to award costs. Although the magistrate’s task of performing that
level of research on an issue of costs might be characterized as “particularly onerous,” nothing in the
decision suggests that parties seeking costs need perform similar feats of legal acumen, and nothing in
the decision suggests that those parties face a higher standard of proof than the preponderance standard
established by ORS 305.427. Defendant’s assertion to the contrary is unsupported.
Here, Plaintiffs have provided receipts, invoices, and canceled checks demonstrating
every cost they claimed except for the filing fees, which the court’s records show were paid. In
the absence of any countervailing evidence from Defendant, Plaintiffs’ evidence satisfactorily
proves all the expenses claimed on their Statement for Costs and Disbursements.
B. 	Prevailing Party
Under TCR–MD 16 B, “costs and disbursements may be allowed to the prevailing party[.]”

SUPPLEMENTAL DECISION ON COSTS AND DISBURSEMENTS
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The “prevailing party” is determined on a claim-by-claim basis; it is “the party who receives a
favorable judgment or arbitration award on the claim.” ORS 20.077(2); Stade v. Dept. of Rev.,
TC–MD 150369N, 2016 WL 282206 at *5 (Or Tax M Div Jan 21, 2016). In determining the
prevailing party, courts “weigh what was sought by each party against the result obtained.” Stade,
2016 WL 282206 at *5 (quoting Beggs v. Hart, 221 Or App 528, 537–38, 191 P3d 747 (2008))
(internal quotes removed).
A taxpayer who obtains a substantial reduction in property value is a prevailing party.
See Benjamin Franklin Sav. & Loan Ass’n v. Dept. of Rev., 310 Or 651, 671, 801 P2d 771
(1990); Wihtol, 2014 WL 274126 at *3. In Benjamin Franklin, our Supreme Court reversed the
Tax Court’s award of costs and disbursements to the taxing authority, finding the taxpayer was
the prevailing party because the taxpayer’s property value had been reduced “over three million
dollars,” from $26,452,567 to $23,407,676—even though that final value was the conclusion of
the taxing authority’s appraisers, not the taxpayers’ appraiser. Id. at 662–63. The taxpayers’
appraiser had concluded to a value of $7,244,438, and the taxpayers themselves had valued the
property at $12,425,887. Id. at 663.
Here, Plaintiffs requested a reduction of the subject’s value from $125,000 to $25,000 in
their Complaint, and the court found a reduction to $50,000 was warranted.2 The subject’s value
was therefore reduced by 60 percent, proportionally far more than the reduction at issue in
Benjamin Franklin. Plaintiffs obtained 75 percent of the relief they sought.
Defendant argues that Plaintiffs nevertheless did not prevail because $50,000 is slightly
closer to the roll value than to the value concluded by Plaintiffs’ appraiser: negative $40,000.
2 At trial, Plaintiffs increased their requested value to $30,000, the amount for which the subject property
had recently sold. That difference is immaterial to the analysis in this case.

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Defendant’s argument fails for multiple reasons. The proper benchmark is the relief sought by
Plaintiffs, not the opinion of their expert witness. See Stade, 2016 WL 282206 at *5. Therefore,
even if Defendant’s proposed standard for weighing the results were accepted—i.e., that a party
only prevails if the value obtained is below the midpoint of the difference between the requested
value and the roll value—even if that standard were accepted, Plaintiffs would easily meet it
here. However, Defendant’s “midpoint-of-the-difference” standard is inconsistent with the
holding of Benjamin Franklin, where the taxpayers prevailed with a three-million-dollar value
reduction even though the final value was almost 11 million dollars more than the taxpayers had
asserted.
Plaintiffs obtained a substantial reduction in the value of their property and they are
collectively the “prevailing party” in this case. While a prevailing party is not automatically
entitled to costs and disbursements, the court allows costs here because the evidence shows the
tax roll had a significant error that Defendant did not recognize.
C. 	Appraiser’s Fees
Defendant objects to Plaintiffs’ requested expenses for appraiser fees. Fees of experts
such as appraisers are not allowable as costs and disbursements in the Magistrate Division. Kaur
v. Clackamas Cty. Assessor, TC–MD 180242G, 2019 WL 259507 at *6 (Or Tax M Div Jan 18,
2019). Such expenses may be allowed in the Regular Division “in addition to costs and
disbursements[.]” ORS 305.490(4)(a). Defendant’s objection to Plaintiffs’ appraiser fees
totaling $850 is well taken.
D. 	Certified Mail Cost
Defendant objects to Plaintiffs’ cost for mailing their filing fee and Complaint to the
court. By definition, costs and disbursements are “reasonable and necessary expenses.” TCR–

SUPPLEMENTAL DECISION ON COSTS AND DISBURSEMENTS
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MD 16 A. However, attorneys with active membership in the Oregon State Bar are required to
file most documents through the court’s electronic filing system. TCR–MD 1 A(3). Because
Plaintiffs were represented by an attorney, their mailing expense was unreasonable and therefore
did not meet the definition of a cost under TCR–MD 16 A. Defendant’s objection to Plaintiffs’
$7.20 mailing cost is well taken.
III. CONCLUSION
Plaintiffs prevailed on their claim to reduce the value of the subject property, and the
court allows them their costs, except for the $857.20 against which Defendant raised valid
objections. Now, therefore,
IT IS THE DECISION OF THIS COURT that Plaintiffs’ costs are allowed in the amount
of $657.96.
Dated this ____ day of March 2022.
POUL F. LUNDGREN
MAGISTRATE
If you want to appeal this Decision, file a complaint in the Regular Division of
the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563;
or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your complaint must be submitted within 60 days after the date of this Decision
or this Decision cannot be changed. TCR-MD 19 B.
Some appeal deadlines were extended in response to the Covid-19 emergency.
Additional information is available at https://www.courts.oregon.gov/courts/tax
This document was signed by Magistrate Poul Lundgren and entered on March
10, 2022.