appellant's petition for reconsideration fled December 1,
2017; considered and under advisement February 21, 2018.
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.
L. Orchard, Ball Janik, LLP, Portland, fled the response on
behalf of respondent.
Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn,
and Nelson, Justices, and Brewer, Senior Justice pro tempore.
[362 Or. 528]Case Summary:
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.
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.
petition for reconsideration is allowed. The former opinion
is modified and adhered to as modified.
Or. 529] BREWER, S. J.
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.
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. 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