Cohn v. State Tax Commission

• Decision Date: 18 May 1926
• Citation: 118 Or. 92,245 P. 1085
• Parties: COHN v. STATE TAX COMMISSION.
• Court: Oregon Supreme Court

245 P. 1085

118 Or. 92

COHN v. STATE TAX COMMISSION.

Supreme Court of Oregon

May 18, 1926

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Proceeding under Laws 1925, p. 632, §§ 30, 31, by A. Cohn against the State Tax Commission. Judgment for plaintiff on the pleadings, and defendant appeals. Appeal dismissed.

Miles H. McKey, of Salem (I. H. Van Winkle, Atty Gen., on the brief), for appellant.

Charles S. Cohn, of Portland, for respondent.

BURNETT J.

The plaintiff made his individual income tax return for the year 1923, in which he deducted $20,000 which he paid during that year on some notes which he had given in the preceding year in settlement of an action brought against him to recover damages. The defendant tax commission refused to allow the deduction, and levied upon him an additional tax. He seeks to recover this with interest.

Having applied to the commission for a revision, which was denied he has brought this proceeding under sections 30 and 31 of chapter 316 of the General Laws of Oregon for 1925, reading thus:

"Section 30. A taxpayer may apply to the tax commission for revision of the tax assessed against him at any time within one year from the time of the filing of the return or from the date of the notice of the assessment of any additional tax. The tax commission shall grant a hearing thereon and if, upon such hearing, it shall determine that the tax is excessive or incorrect, it shall resettle the same according to the law and facts and adjust the computation of the tax accordingly. The tax commission shall notify the taxpayer of its determination and shall refund to the taxpayer the amount, if any, paid in excess of the tax found by it to be due. If the taxpayer has failed, without good cause, to file a return within the time prescribed by law, or has filed a fraudulent return or, having filed an incorrect return, has failed, after notice, to file a proper return, the tax commission shall not reduce the tax below the amount for which the taxpayer is found to be properly assessed.

"Section 31. The determination of the tax commission upon application made by a taxpayer for revision of any tax may be reviewed in any court of competent jurisdiction by a complaint filed by the taxpayer against the tax commission in the county in which the taxpayer resides or has his principal place of business, within thirty days after notice by the tax commission of its determination, given as provided in section 30 of this act. Thereupon appropriate proceedings shall be had and the relief, if any, to which the taxpayer may be found entitled may be granted and any taxes, interest or penalties paid, found by the court to be in excess of those legally assessed, shall be ordered refunded to the taxpayer with interest from the time of payment."

Dissatisfied with the decision of the circuit court in favor of the plaintiff on his motion for judgment on the pleadings, the commission has appealed.

The scheme for levying a tax on income, as embodied in the statute under consideration, is complete within itself. The only provision for questioning the determination of the tax commission is prescribed in section 31 to the effect that it may be "reviewed in any court of competent jurisdiction by a complaint." There is no provision for an appeal. As said by Mr. Justice Bean in Portland v White, 106 Or. 169, 211 P. 798:

"Where a statute or a charter gives the right of appeal to the Circuit Court, the Supreme Court does not by virtue of the provisions of the Constitution thereby become clothed with authority to review the judgment thereof by appeal."

Appeals are not allowed as...