IN THE OREGON TAX COURT
REGULAR DIVISION

PROPOSED REVISIONS TO RULES OF THE OREGON TAX COURT

As part of its annual rules revision process, the Oregon Tax Court solicited rule revision suggestions internally and from the public through a variety of publications. After careful consideration of those suggestions, the court proposes the following revisions to the rules of the Oregon Tax Court Regular Division. New text is underlined in boldface and deleted text is italicized within brackets. Comments regarding these proposed revisions should be made in writing, received by October 19, 2007, and sent to Emily Potts, Law Clerk, Oregon Tax Court, Magistrate Division, 1163 State Street, Salem, Oregon 97301. These rules will become effective January 1, 2008.

RULES OF THE OREGON TAX COURT
REGULAR DIVISION

RULE 1
APPEALS TO THE REGULAR DIVISION; CORRESPONDENCE;
FEES; REPRESENTATION

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B Appeals from a Decision of the Magistrate Division. Upon receipt of an original [and one true copy of a] complaint accompanied by [a copy of the magistrate's written decision and] a $50 filing fee, the tax court clerk shall file the complaint in the Regular Division. A copy of the magistrate's written decision is to be included with the complaint.

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F(2)(b) S Corporations. Pursuant to ORS 305.494, an S corporation (as defined in section 1361 of the Internal Revenue Code as amended and in effect on December 31, 2006[02]) and shareholders in an S corporation may be represented by a shareholder in the same manner as if the S corporation were a partnership and the shareholder were a partner. Therefore, with respect to only those matters involving taxes on or measured by net income, a representative shareholder may be designated by the corporation and other shareholder. [OAR 150-305.230(1) and] OAR 150-305.230(4)(b)[(2)] contains the rules the court will follow as to the form of designation. A designation must be filed with the complaint or initial pleading.

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RULE 7
SUMMONS GENERALLY

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A(2) Petitions for Determinations of Constitutional Limit on Property Taxes. The use of a summons is not required for petitions to the Regular Division of the Tax Court for determinations under Article XI, section 11(b) or 11(d). See ORS 305.583(3)(a)[(2)(a)]; ORS 305.585(2). In such cases, the date of service for purposes of these rules shall be the date of the court's transmittal letter accompanying the copy of the petition sent to the government unit. For petitions under ORS 305.589, "service" is by publication of notice and the date of service is the 10th day after completion of publication. In all cases, the respondent shall appear or defend within 30 days of the date of service.

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C(4)(a) In General. All summons, other than a summons referred to in paragraph (b) or (c) of this subsection, shall contain a notice printed in type size equal to at least 8-point type which may be substantially in the following form:

NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!

You must "appear" in this case or the other side will win automatically. To "appear" you must file with the court a legal [paper] document called a "motion" or "answer." The "motion" or "answer" must be given to the tax court clerk within 30 days. It must be in proper form and have proof of service on the plaintiff's attorney or, if the plaintiff does not have an attorney, proof of service on the plaintiff.

If you have questions, you should see an attorney immediately.

C(4)(b) Service for Counterclaim. A summons to join a party to respond to a counterclaim pursuant to TCR 22 D(1) shall contain a notice printed in type size equal to at least 8-point type which may be substantially in the following form:

NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!

You must "appear" to protect your rights in this matter. To "appear" you must file with the court a legal [paper]document called a "motion" or "reply." The "motion" or "reply" must be given to the tax court clerk within 30 days. It must be in proper form and have proof of service on the defendant's attorney or, if the defendant does not have an attorney, proof of service on the defendant.

If you have questions, you should see an attorney immediately.

C (4)(c) Service on Persons Liable for Attorney Fees. A summons to join a party pursuant to TCR 22 D(2) shall contain a notice printed in type size equal to at least 8-point type which may be substantially in the following form:

NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!

You may be liable for attorney fees in this case. Should plaintiff in this case not prevail, a judgment for reasonable attorney fees will be entered against you, as provided by the agreement to which defendant alleges you are a party.

You must "appear" to protect your rights in this matter. To "appear" you must file with the court a legal [paper]document called a "motion" or "reply." The "motion" or "reply" must be given to the tax court clerk within 30 days. It must be in proper form and have proof of service on the defendant's attorney or, if the defendant does not have an attorney, proof of service on the defendant.

If you have questions, you should see an attorney immediately.

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RULE 9
SERVICE AND FILING OF PLEADINGS AND OTHER [PAPERS]DOCUMENTS

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B Service; How Made. Whenever under these rules service is required or permitted to be made upon a party, and that party is represented by an attorney, the service shall be made upon the attorney unless otherwise ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to such attorney or party or by mailing it to such attorney's or party's last known address or, if the party is represented by an attorney, by telephonic facsimile communication device as provided in section F of this rule. Delivery of a copy within this rule means: handing it to the person to be served; or leaving it at such person's office with such person's clerk or person apparently in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place thereon; or, if the office is closed or the person to be served has no office, leaving it at such person's dwelling house or usual place of abode with some person over 14 years of age then residing therein. A party who has appeared without providing an appropriate address for service may be served by [placing]filing a copy of the pleading or other [papers in the court file]documents with the court. Service by mail is complete upon mailing except for subpoenas. See ORS 305.415. Service of any notice or other [paper]document to bring a party into contempt may only be upon such party personally.

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C Filing; Proof of Service. Except as provided by section D of this rule, all papers required to be served upon a party by section A of this rule shall be filed with the court within a reasonable time after service. Except as otherwise provided in Rules 7 and 8, proof of service of all papers required or permitted to be served may be by written acknowledgment of service, by affidavit or declaration of the person making service, or by certificate of an attorney. Such proof of service may be made upon the papers served or as a separate document attached to the papers. Where service is made by telephonic facsimile communication device, proof of service shall be made by affidavit or declaration of the person making service, or by certificate of an attorney or sheriff. Attached to such affidavit, declaration, or certificate shall be the printed confirmation of receipt of the message generated by the transmitting machine.

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E Filing With the Court Defined. Pleadings and other [papers]documents are filed with the court when the court endorses or stamps upon such pleading or [paper]document the time of day, the day of the month, the month, and the year. The court is not required to receive for filing any [paper]document unless the name of the court, the title of the cause and the [paper]document, the names of the parties, and the name of the attorney for the party requesting filing, if there be one, are legibly printed on the front of the document, and the contents thereof are legible. Additional requirements for filing an appeal are set forth in TCR 1.


RULE 11
APPEARANCE BY ATTORNEYS LICENSED IN OTHER JURISDICTIONS

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G Use of Electronic Means by the Bar. Subject to the following, the Bar may use electronic means to accomplish acts required or authorized under this section.

The Bar shall provide acknowledgment under section B [paragraph (B)(1)] of this rule for court purposes by electronic means only upon approval of the State Court Administrator.

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RULE 17
SIGNING OF PLEADINGS, MOTIONS, AND OTHER [PAPERS]DOCUMENTS; SANCTIONS

A Signing by Party or Attorney; Certificate. Every pleading, motion and other [paper]document of a party represented by an attorney shall be signed by at least one attorney of record who is an active member of the Oregon State Bar. A party who is not represented by an attorney shall sign the pleading, motion or other [paper]document and state the address and telephone number of the party. Pleadings need not be verified or accompanied by affidavit or declaration.

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C(1) An attorney or party who signs, files or otherwise submits an argument in support of a pleading, motion or other [paper]document makes the certifications to the court identified in subsections (2) to (5) of this section, and further certifies that the certifications are based on the person's reasonable knowledge, information and belief, formed after the making of such inquiry as is reasonable under the circumstances.

C(2) A party or attorney certifies that the pleading, motion, or other [paper]document is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

C(3) An attorney certifies that the claims, defenses, and other legal positions taken in the pleading, motion, or other [paper]document are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

C(4) A party or attorney certifies that the allegations and other factual assertions in the pleading, motion or other [paper]document are supported by evidence. Any allegation or other factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery.

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D(3) A motion by a party to the proceeding for imposition of sanctions under this section must be made separately from other motions and pleadings, and must describe with specificity the alleged false certification. A motion for imposition of sanctions based on a false certification under subsection C(4) of this rule may not be filed until 120 days after the filing of a complaint if the alleged false certification is an allegation or other factual assertion in a complaint filed within 60 days of the running of the statute of limitations for a claim made in the complaint. Sanctions may not be imposed against a party until at least 21 days after the party is served with the motion in the manner provided by TCR 9. Notwithstanding any other provision of this section, the court may not impose sanctions against a party if, within 21 days after the motion is served on the party, the party amends or otherwise withdraws the pleading, motion, [paper]document or argument in a manner that corrects the false certification specified in the motion. If the party does not amend or otherwise withdraw the pleading, motion, [paper]document or argument but thereafter prevails on the motion, the court may order the moving party to pay to the prevailing party reasonable attorney fees incurred by the prevailing party by reason of the motion for sanctions.

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RULE 23
AMENDED AND SUPPLEMENTAL PLEADINGS

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D How Amendment Made. When any pleading is amended before trial, mere clerical errors excepted, it shall be done by filing a new pleading, to be called the amended pleading, or by interlineation, deletion, or otherwise. Such amended pleading shall be complete in itself, without reference to the original or any preceding amended one.

D(2)(a) Except as provided in subsection D(2)(b), whenever a motion for leave to amend a pleading is submitted to the court, it must include, as an attached exhibit to the affidavit, the entire text of the proposed amended pleading. The text of the pleading must be formatted as required by this rule. Any material to be added to the pleading by the requested amendment must be inserted and set out in bold and underlined and any material to be deleted must be bracketed and italicized.

D(2)(b) If the motion to amend is for a pleading that was composed using preprinted forms that have been completed by filling in the blanks, the moving party may comply with this rule by making a copy of the filed pleading and inserting brackets around the material to be deleted and by interlineating and underlining the material to be inserted in the proposed amended pleading.

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RULE 34
SUBSTITUTION OF PARTIES

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G Procedure. The motion for substitution may be made by any party, or by the successors in interest or representatives of the deceased party or [disabled] the party with a disability, or the successors in interests of the transferror and shall be served on the parties as provided in TCR 9 and upon persons not parties in the manner provided in TCR 7 for the service of a summons.

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RULE 35
SEGREGATION AND PROTECTION OF PERSONAL INFORMATION

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D Procedure for party.

D(1) A person or entity required to file a document in the court that contains protected personal information may submit that information on a separate document together with a motion that describes the information and requests that the [t]Tax [c]Court keep the separate document segregated from the court file. The moving party shall serve a copy of the motion on all other parties to the appeal, review, or other proceeding. During the pendency of the motion, the separate document will not be available for public inspection.

D(2) A person or entity who has filed a document in the Tax Court that contains protected personal information may submit a motion to replace the document with a document that redacts the protected personal information and requests that the Tax Court keep the original document segregated from the court file. The moving party shall submit the proposed redacted document with the motion. The moving party shall serve a copy of the motion and the proposed redacted document on all other parties to the appeal, review, or other proceeding. During the pendency of the motion, the document containing protected personal information will not be available for public inspection.

[D(2) The moving party shall serve a copy of the motion on all other parties to the proceeding.]

[D(3) During the pendency of the motion, the separate document will not be available for public inspection.]

E Court Response. If the court grants the motion, the court will issue an order to that effect and segregate the [separate] document containing the protected personal information from the court file unless a question arises about the court's legal authority to keep the specific information from public inspection. The motion and order will remain in the court file. Any request for public inspection of such a [separate] document containing protected personal information must be made in writing, filed with the court, and served on all other parties to the proceeding.

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RULE 47
SUMMARY JUDGMENT

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C Motion and Proceedings Thereon. The motion and all supporting documents shall be served and filed at least 60 days before the date set for trial. The adverse party shall have 20 days in which to serve and file opposing affidavits or declarations and supporting documents. The moving party shall have10 days to reply. The court shall have discretion to modify these stated times. The court shall [enter judgment for the moving party]grant the motion if the pleadings, depositions, affidavits, declarations, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to [a judgment]prevail as a matter of law. No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motions as to which the adverse party would have the burden of persuasion at trial. The adverse party may satisfy the burden of producing evidence with an affidavit or declaration under section E of this rule.

D Form of Affidavits and Declarations; Defense Required. Except as provided by section E of this rule, supporting and opposing affidavits or declarations shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant or declarant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit or declaration shall be attached thereto or served therewith. The court may permit affidavits or declarations to be supplemented or opposed by depositions or further affidavits or declarations. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of that party's pleading, but the adverse party's response, by affidavits or declarations or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue as to any material fact for trial. If the adverse party does not so respond, [summary judgment, if appropriate, shall be entered against such party]the court shall grant the motion if appropriate.

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F When Affidavits or Declarations Are Unavailable. Should it appear from the affidavits or declarations of a party opposing the motion that such party cannot, for reasons stated, present by affidavit or declaration facts essential to justify the opposition of that party, the court may [refuse the application for judgment,]deny the motion or may order a continuance to permit affidavits or declarations to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

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RULE 68
ALLOWANCE AND AWARD OF ATTORNEY FEES AND COSTS AND DISBURSEMENTS

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C(2)(a)(i) File with the court a signed and detailed statement in the form set forth in Form 5.080 in the UTCR Appendix of Forms of the amount of attorney fees or costs and disbursements, together with proof of service, if any, in accordance with TCR 9 C. [The detailed statement shall show the amounts claimed in separate categories for attorney fees, accountant fees, witness fees, travel and other expense. The time and services provided by each attorney, accountant and expert witness shall be shown separately for (1) administrative proceedings, (2) preparing for trial, and (3) participating in trial]; and

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C(3) Judgment Concerning Attorney Fees or Costs and Disbursements.

C(3)(a) As Part of Judgment. If[When] all issues regarding attorney fees or costs and disbursements are decided[have been determined] before entry of a judgment pursuant to TCR 67 [is entered], the court shall include any award or denial of attorney fees or costs and disbursements in that judgment.

C(3)(b) By Supplemental Judgment; Notice. If[When] any issue regarding attorney fees or costs and disbursements is [has] not decided [been determined] before entry of a judgment pursuant to TCR 67 [is entered], any award or denial of attorney fees or costs and disbursements shall be made by a separate supplemental judgment. The supplemental judgment shall be filed and entered and notice shall be given to the parties in the same manner as provided in TCR 70 B(1).

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