TC-MD 250440R•Millard v. Dept. of Rev.
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DECISION OF DISMISSAL TC-MD 250440R 1 IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax ADAM MILLARD, ) ) ) ) ) ) ) ) ) ) Plaintiff, TC-MD 250440R v. DEPARTMENT OF REVENUE, State of Oregon, DECISION OF DISMISSAL Defendant. Plaintiff appealed Defendant’s refusal to take corrective action after a 2023 personal income tax refund was electronically deposited to a third-party bank account. The misdelivery occurred because the bank information provided with Plaintiff’s return contained the incorrect account number. Plaintiff seeks recovery of his refund and the court costs he incurred in small claims matters he brought to recover the funds. At a case management conference on October 16, 2025, the parties agreed to submit briefing limited to the issue of whether this court has subject matter jurisdiction to grant the requested relief. Plaintiff filed his motion for determination of subject matter jurisdiction on November 17, 2025. Defendant filed its motion to dismiss for lack of subject matter jurisdiction on December 11, 2025. On December 20, 2025, Plaintiff submitted an ex parte request for additional time to reply, asserting that Defendant captioned its submission on the subject matter jurisdiction issue as a “Motion to Dismiss” rather than a “Response.” Because Tax Court Rule – Magistrate Division (TCR-MD) 3 A prohibits a document from being filed and considered by the court “if a certificate of service or other evidence of service is not included with [the] filing[,]” Plaintiff’s motion is denied. The matter is ready for a decision.
DECISION OF DISMISSAL TC-MD 250440R 2 I. STATEMENT OF FACTS The material facts of the case are not disputed. Plaintiff engaged Frome & Associates to prepare and e-file his 2023 Oregon personal income tax return. (Comp at 1.) The return reflected an overpayment of $2,582, and Plaintiff elected to receive his refund by direct deposit. (Id.) Due to erroneous account/routing information on the tax return, the refund was deposited into a Wells Fargo account belonging to someone other than Plaintiff. (Id. at 1-2.) Plaintiff discovered the error, and Wells Fargo reportedly advised Plaintiff that funds were recoverable if Defendant issued a recall notice. (Id. at 2) In response to Plaintiff’s request to issue a recall notice, Defendant declined to do so, citing agency policy. (Id.) Plaintiff pursued a small claims action in Los Angeles County, California, against Frome & Associates resulting in a stipulated payment of fifty percent of the refund amount and the preparer’s cooperation in seeking further recovery from Defendant. (Id. at 3.) Plaintiff then filed a small claims action in Marion County, Oregon, (Case 25SC04694) seeking damages against Defendant. (Ptf mot at 2.) Defendant moved to dismiss based on “lack of jurisdiction over the subject matter[,]” stating the claim must be brough in the Oregon Tax Court. (Id. at 3; Ex 2.) The small claims case was dismissed for lack of jurisdiction. (Compl at 3.) II. ANALYSIS The issues in this case are whether the court has subject matter jurisdiction over a refund claim, and if so, whether Plaintiff has adequately stated ultimate facts sufficient to constitute a claim for the court to adjudicate. In reviewing a motion to dismiss, the court must view all allegations in a plaintiff's complaint as true. See Lourim v. Swensen, 328 Or 380, 383, 977 P2d 1157 (1999).
DECISION OF DISMISSAL TC-MD 250440R 3 A. Tax Court’s Statutory Jurisdiction The Tax Court’s jurisdiction is purely statutory and limited to questions “arising under the tax laws of this state.” ORS 305.410(1). The Oregon Supreme Court interpreted that statute in Sanok v. Grimes, 294 Or 684, 662 P2d 693 (1983). The court in Sanok set out the challenge of determining whether a claim is properly within the Tax Court’s subject matter jurisdiction as follows: “On the one hand, questions which must be resolved in order to decide taxability or the amount of tax do arise under the tax laws. On the other hand, a precondition to taxation does not arise under the tax laws if jurisdiction to decide that precondition has been affirmatively located in another court or if a decision on the precondition has substantial non-tax consequences.” Id., at 697. The Supreme Court went on to conclude that the plaintiff’s tort claims were outside the jurisdiction of the Tax Court, but his claim “for refund of excess taxes, [was] within the express jurisdiction of the tax court.” Id. at 698-99, (citing ORS 305.440(2), 311.806(2)). The Supreme Court summarized its holding as “a claim is not one ‘arising under the tax laws’ unless it has some bearing on tax liability.” Id. at 701. As this court has subsequently noted, there have been many instances where the court has considered claims brought under the personal income tax refund statute,1 ORS 314.415, as a tax law of this state, “including [cases] where the tax liability was not at issue.” Smith v. Dept. of Rev., TC-MD 160196N, 2017 WL 728738 at *4 (Or Tax M Div, Feb 24, 2017). Aside from circumstances where the taxpayer’s claim centers on Defendant’s downstream exercise of its 1 The court in Smith helpfully referenced a slew of cases where the Regular Division of the court considered claims brought under ORS 314.415. See Day v. Dept. of Rev., 20 OTR 220 (2010) and Vieceli v. Dept. of Rev., 20 OTR 212 (2010) (“each considering whether the taxpayers’ refund claim was timely under ORS 314.415(2)”); Lucas v. Dept. of Rev., 17 OTR 9 (2003) (“considering whether the defendant erred in applying refunds to deficiencies under ORS 314.415(1)”). The court in Smith further noted that in at least one instance, the Oregon Supreme Court reviewed such a case. See generally DeArmand v. Dept. of Rev., 328 Or 60, 968 P2d 1280 (1998).
DECISION OF DISMISSAL TC-MD 250440R 4 common-law authority of a creditor, “[t]axability and a bearing on tax liability are equally relevant in “actions to collect tax amounts due, which arise after a tax liability is determined.” Hefflinger v. Dept. of Rev., TC 5466, 2025 WL 2886054 at *9 (2025) (quoting Perkins v. Dept. of Rev., 22 OTR 370, 374-75 (2017) (emphasis in the original)). Plaintiff’s claim in the present case concerns Defendant’s payment handling after the refund amount was determined—specifically, the refusal to recall a misdirected direct deposit. This court has held that where the department has applied one taxpayer’s unadjusted refund to the liability of another, that act is adverse to the taxpayer and affects their property, aggrieving the taxpayer for the purpose of ORS 305.275(1)(a). Fackler v. Dept. of Rev., 18 OTR 67, 73 (2004). Further, that scenario arises under the tax laws of this state pursuant to ORS 305.410(1). Smith, 2017 WL 728738 at *4. It is therefore enough that Plaintiff’s Complaint alleges that Defendant mishandled his refund and no dispute exists that the refund was not the subject of a collection action for the court to have subject matter jurisdiction over this case. B. Direct-Deposit Statute Does Not Create a Recall Remedy With the question of court’s jurisdiction resolved, the court turns to the substance of Plaintiff’s claim. At base, Plaintiff alleges that Defendant had an obligation to recall the direct deposit of Plaintiff’s refund resulting from an error in the bank account information accompanying his return filing. ORS 305.762(1) indeed permits taxpayers to elect direct deposit of personal income tax refunds “into an account designated by the taxpayer.” However, contrary to Plaintiff’s reading, no provision in ORS 305.762 imposes an obligation on Defendant to recall funds or create a recall remedy in the event of misdirection (nor is such a duty known by this court to exist elsewhere in Oregon law). Oregon law does, however, contain clear directions on how statues are to be interpreted. See generally ORS Chapter 174. A foundational principle in
DECISION OF DISMISSAL TC-MD 250440R 5 this interpretative methodology is that the role of the court “is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted[.]” ORS 174.010. In observance of this statutory restriction, the court lacks the authority to add the remedy envisioned by Plaintiff’s reading of ORS 305.762. In the absence of such a provision’s existence, Plaintiff is unable to allege ultimate facts sufficient to constitute a claim. Tax Court Rule 21 A(8). To the extent that Plaintiff’s other articulations of this claim sound in tort law, those articulations are unambiguously beyond the jurisdiction of this court. Sanok, 294 Or at 698-99. C. The Constitutional “Remedy Clause” Does Not Expand Jurisdiction As an alternative argument, Plaintiff invokes Article I, section 10 of the Oregon Constitution (otherwise known as the “Remedy Clause”), contending that dismissal in circuit court requires this court to provide a remedy. The Remedy Clause does not create a damages action against the State of Oregon or expand the Tax Court’s jurisdiction. The Oregon Supreme Court has emphasized that legislative remedial schemes—including the Oregon Tort Claims Act (OTCA)—satisfy the Remedy Clause without creating new causes of action. See Horton v. OHSU, 359 Or 168, 190–250, 376 P3d 998 (2016) (concluding Article I, section 10 does not guarantee a remedy, only that courts be accessible “for such remedies as the law may provide.”). Plaintiff’s reliance on Article I, section 10 is therefore misplaced and does not create a viable cause of action that would allow Plaintiff’s case to proceed in this court. D. Estoppel and Prior Litigation Plaintiff also argues that Defendant should be estopped from asserting lack of Tax Court jurisdiction because it previously argued in small claims that jurisdiction was proper here. This court understands how Plaintiff feels wronged by the sequence of events in the small claims
DECISION OF DISMISSAL TC-MD 250440R 6 court. However, this court’s inquiry is limited to determining whether the claims alleged fall within the statutory jurisdiction conferred on this court by the legislature, and its jurisdiction cannot be expanded by party conduct or equitable doctrines. See ORS 305.410(1); Sanok, 294 Or at 697–701. III. CONCLUSION The court concludes that Plaintiff’s claim for relief attributable to ORS 305.762 is not a viable basis to support the relief he seeks, nor is his reliance on Article I, section 10 of the Oregon Constitution. As such, dismissal is required. Now, therefore, IT IS THE DECISION OF THIS COURT that Plaintiff’s appeal is dismissed for failure to state a claim upon which relief may be granted. To appeal this Decision, file a complaint in the Regular Division of the Oregon Tax Court. Appeals are accepted by electronic filing; by mail at 1163 State Street, Salem, OR 97301-2563; and by hand delivery to 1241 State Street, Salem, OR, Floor 4R. Your complaint must be submitted within 60 days after the date of this Decision or this Decision cannot be changed. TCR-MD 19 B. This document was signed by Magistrate Richard Davis and entered on May 18, 2026.
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