Aslin v. Coos County Assessor
| Decision Date | 13 January 2009 |
| Docket Number | TC-MD 080040C |
| Parties | JAMES DAVID ASLIN, Plaintiff v. COOS COUNTY ASSESSOR, Defendant. |
| Court | Oregon Tax Court |
DECISION
Plaintiff has appealed the late filing penalty Defendant imposed for failing to sign his personal property return for the 2007-08 tax year. The appeal involves a constitutional challenge to the declaration requirement on the personal property return that taxpayers are required to submit each year. The parties presented written arguments regarding the penalty and submitted the matter to the court for determination.
Plaintiff is a metal worker who owns and operates his own business. Plaintiff has a machine shop with taxable personal property identified by assessor's Account .8174. Plaintiff has for years, filed the statutorily required personal property return with a detailed listing of the taxable personal property inventory used in his business and the estimated value of that property. The form that Plaintiff has used is designed by the Oregon Department of Revenue (department) and provided each year by Defendant. There have been changes made to the form over time, including a requirement added perhaps eight years prior to 2007 (calendar year 1999 or 2000) that the taxpayer sign a “Taxpayer's Declaration, ” which reads:
Or. Dept. Rev. Form 150-553-004 (Rev. 10-06) (Emphasis in original.)
That statement in the form is delineated by a box that includes space for the taxpayer to provide a name, e-mail address, assumed business name, telephone number, mailing address, fax number, the city, state, and zip code for the business, and a signature of the person responsible for the return, and for the date the form is signed.
Plaintiff continued to submit personal property returns each year following the change in the form, but did not sign the declaration. That practice continued for several years. In 2007, which is the year at issue, Plaintiff submitted his return, with the declaration crossed out, and in the signature block wrote “I don't swear.” Plaintiff's return was otherwise complete and included a lengthy and detailed listing of property owned, property disposed of, and equipment acquired in 2006 (i.e., new additions).[1] The form was filed approximately six weeks after the due date (on April 13, 2007). According to its Answer, Defendant spoke with Plaintiff over the phone regarding the declaration and signature requirement. Defendant then contacted the department. Based on a conversation that Defendant had with a Department employee, Defendant sent Plaintiff's return back to him with a letter dated April 17, 2007. That letter reads as follows:
(Emphasis added.)
Plaintiff did not resubmit his personal property return, and Defendant imposed a penalty equal to 50 percent of the tax, based on its determination that an unsigned return was deemed a return not filed. Defendant did, however, use the information in Plaintiff's 2007 return to determine the value of his taxable personal property. That information generated an increase in the real market value from $92, 551 to $123, 321. (Ptf's Compl at 19.)
Plaintiff has appealed the penalty on religious grounds, asserting that various passages of the Bible prohibit a Christian from swearing or signing an oath. Moreover, Plaintiff contends that Defendant's rejection of his return is in direct violation of the free exercise clause of the First Amendment to the United States Constitution, and various provisions of the Oregon Constitution - namely Article 1, section 2 (freedom of worship) and section 3 (). Plaintiff requests the court abate the 50 percent late filing fee, assess a late filing fee of five percent (the amount applicable to a return filed after the March 1 deadline but before April 15), refund the difference, and award court costs, attorney's fees, and other expenses incurred. Defendant requests that the court uphold the 50 percent penalty because Plaintiff is required by law to sign his personal property return and he failed to do so.
Every taxpayer with taxable personal property must file with the county assessor each year a personal property return on or before March 1. ORS 308.290(1)(a).[2] Information required on the return, which has been developed by the department, includes a statement of the property's value and a listing of any additions or retirements made since the prior January 1, with related costs. The statute also requires the taxpayer to swear or affirm that statements in the return are true.[3] The operative language is found in ORS 308.290(2)(c), and provides in relevant part as follows:
(Emphasis added.)
To aid in complying with that requirement, the department has added a section in the return for the taxpayer to sign a declaration declaring “[u]nder penalties of false swearing in ORS 305.990(4)” that the return has been examined and “[a]ll statements made are true[, ]” and that “[t]o the best of my knowledge, all taxable personal property I own, possess, or control, which was in this county as of 1:00 A.M., January 1 has been reported.”
Plaintiff crossed out the declaration and, instead of signing in the appropriate place, wrote in the signature block the words “I don't swear.” The return was dated April 11, 2007, and received by Defendant on or about April 13, 2007.
Taxpayers who fail to file a return on or before the March 1 deadline each year “shall be jointly and severally subject to the provisions of ORS 308.296.” ORS 308.290(1)(a). ORS 308.296 provides in relevant part:
(Emphasis added.)
Defendant determined that Plaintiff had not filed a return and imposed the full 50 percent penalty.
The court understands Plaintiff to make two arguments: (1) a return was filed on April 13, 2007, and under ORS 308.296(2), the penalty should be only five percent of the tax; (2) the requirement that a taxpayer swear an oath that the statements in the return are true violates his federal constitutional right to freely exercise his religion, and his state constitutional rights to freedom of worship and freedom of religious opinion. Defendant disagrees, insisting that the 50 percent penalty is appropriate because Plaintiff was required to sign the return in order for it to be deemed validly filed.
ORS 308.290(1)(a) requires owners of taxable personal property to make a return each year. Subsection (2)(c) of that statute, which contains the requirement of an affidavit or affirmation, further provides that “[a]ll returns shall be in such form as the assessor, with the approval of the Department of Revenue, may prescribe.” (Emphasis added.)
The return that Plaintiff filed with Defendant provides a space for the “Signature of [the] Person Responsible for [the] Return, ” and specifically provides that the return is “[i]nvalid if not signed.” Those requirements are part of the form required by the assessor and approved by the Department of Revenue (department) and, as such, must by statute, be complied with. Plaintiff failed to sign the return. However, the court must review Plaintiff's constitutional claims before determining whether Plaintiff did, or did not, actually file a return. For the reasons set forth below, the court concludes Plaintiff did file a return.
Plaintiff objects on state and federal constitutional grounds to both the statutory requirement of an “affidavit or affirmation” provided in ORS 308.290(2)(c), and the jurat-declaration on the blank return form he is required to complete, sign, and return to Defendant declaring “[u]nder the penalties of false swearing in ORS 305.990(4)” that “[a]ll statements made [on the return] are true.” Plaintiff does not object to the...
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