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Ellison v. Department of Revenue

Supreme Court of Oregon

March 1, 2018

Barbara ELLISON, Plaintiff-Respondent,
v.
DEPARTMENT OF REVENUE, State of Oregon, Defendant-Appellant, and CLACKAMAS COUNTY ASSESSOR, Defendant.

         TC 5177

         On appellant's petition for reconsideration fled December 1, 2017; considered and under advisement February 21, 2018.

          Denise G. Fjordbeck, Assistant Attorney General, Salem, fled the petition for reconsideration on behalf of appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Jack L. Orchard, Ball Janik, LLP, Portland, fled the response on behalf of respondent.

          Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Nelson, Justices, and Brewer, Senior Justice pro tempore. [*]

[362 Or. 528]Case Summary:

         In Ellison v. Dept. of Rev., 362 Or. 148, 404 P.3d 933 (2017), the Oregon Supreme Court had reviewed an award of attorney fees against the Department of Revenue (department). The department sought reconsideration.

         Held:

         (1) Because of current uncertainty about the Tax Court practice described in Chart Development Corp. v. Dept. of Rev., 16 OTR 9, 14-15 (2001), the Court would allow reconsideration and modify two paragraphs of its prior opinion; but (2) those modifications did not otherwise affect the Court's prior reasoning or result.

         The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.

         [362 Or. 529] BREWER, S. J.

         The Department of Revenue has petitioned this court to reconsider part of its opinion in Ellison v. Dept. of Rev., 362 Or. 148, 404 P.3d 933 (2017). In that part of the opinion, the court described what it believed to be the current practice in the Tax Court as reflected in Chart Development Corp. v. Dept. of Rev., 16 OTR 9, 14-15 (2001). The department asserts, and taxpayer agrees, that the legislature may have changed that practice by its later enactment of ORS 305.412.

         This court has reviewed the parties' arguments and concludes that it is uncertain whether, if asked to reconsider the practice described in its decision in Chart Development in light of the legislature's subsequent enactment of ORS 305.412, the Tax Court would reject that practice, or reaffirm it.[1] Because the answer is not necessary to our opinion, and because we do not wish to foreclose the Tax Court from considering the question in the first instance, the petition to reconsider is allowed. The relevant paragraph, published at 362 Or. at 162, is modified to strike the remainder of the paragraph after the first sentence and citation, and the entire paragraph will read as follows:

'Third, the Tax Court also had authority 'to determine the real market value or correct valuation on the basis of the evidence before the court, without regard to the values ...

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