IN THE MAGISTRATE DIVISION OF THE OREGON TAX COURT Property Tax ) ) ) ) ) ) ) ) ) )

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1 IN THE MAGISTRATE DIVISION OF THE OREGON TAX COURT Property Tax DALE N. LESTER AND LELAND SMITH, ET AL, v. Plaintiffs, GRANT COUNTY ASSESSOR, Defendant. No B DECISION Plaintiffs have appealed the disqualification, for the tax year, of property identified by Account No from special assessment as lands in farm use. The property is more than a thousand acres in area. Its zoning is for a nonexclusive farm use. Plaintiffs appeared through Susan Lester, Mr. Lester s spouse. Defendant was represented by counsel, Mike Kilpatrick. Two issues are present in this appeal. The first is whether plaintiffs appeal is timely. The second is whether plaintiffs use of the subject property was sufficient to qualify the property for special assessment as lands in farm use. Is plaintiffs appeal timely?: On or about June 30, 2000, defendant sent a letter to Leland Smith, et al, SE Royer Rd., Clackamas, OR This letter stated the property at issue in this appeal had been disqualified from farm use special assessment. Plaintiffs appeal with this court was not filed until December 28, Plaintiffs explained that they did not receive actual notice of defendant s disqualification until November of 2000, when they learned of the act in the context of their inquiry as to why they had not received a tax statement. Two additional points are that defendant sent the notice of disqualification and tax statement to its address of record, and that during this period DECISION 1

2 plaintiffs did not occupy the premises at that address, but instead leased it to a tenant. The relevant statute is ORS (1 1, which provides: Except as otherwise provided in this section, an appeal under ORS (1 or (2 shall be filed within 90 days after the act, omission, order or determination becomes actually known to the person, but in no event later than one year after the act or omission has occurred, or the order or determination has been made. As the controversy at issue is an appeal from the assessor s decision to disqualify the property from special assessment, it is an appeal under ORS (1, specifically ORS (1(a(C. Plaintiffs testified that they first gained actual knowledge of the disqualification in November. Against this defendant argues that actual knowledge must have been gained at or about the time of mailing, for its correspondence was not returned as undeliverable. Defendant s reasoning would be more persuasive if the mailing had been by registered or certified mail. On this state of the record the court finds as a matter of fact that plaintiffs did not gain actual knowledge of the disqualification until November of 2000, and appealed this act of the assessor the following month. The resulting conclusion of law is that plaintiffs appeal is timely by virtue of ORS (1. See Schellin v. Dept. of Rev., 15 OTR 126 (2000. Is plaintiffs use of the property consistent with the special assessment?: Plaintiffs train and board horses professionally, and testified that they used the subject property and land in Clackamas County as part of their operations. The Clackamas County property consisted of barns and rings used in the boarding of horses and training for indoor arena work. The subject property consisted of a cabin, hay shed, and corral. 1 All references to the Oregon Revised Statues are to DECISION 2

3 Plaintiffs testified that they use the subject property to rehabilitate barn soured horses with outdoor grazing and trail riding. These programs consisted of riding the horses about the property, balanced by sessions of leaving them outdoors, either hobbled or on stakes. For the previous year five trips were taken, each of which lasted a week. Defendant, speaking of inspections of the property, and conversations with a neighbor, argued this was not a sufficient use to qualify the property for special assessment, and that a more accurate description of the use of the property would be as recreational land with a hunting cabin. Turning to this testimony, the court finds as a matter of fact that plaintiffs used the subject property as part of a training program in which equines, used to a restricted existence, are introduced to a more pastoral setting. This being the case, it is scarcely surprising that defendant s employees and plaintiffs neighbors should see no evidence of animal containment, for the whole intent of the training was not to contain the animals, but to permit them a semblance of freedom. Defendant s testimony as to what was seen on the inspections of the property is not fatal to plaintiffs case. The more critical question is whether, as a matter of law, these training sessions for barn soured mounts are a sufficiently intensive use of the property. Plaintiffs used the land, a parcel more than a 1,000 acres in size, for five weeks. Previous decisions of this court have found that this degree of use is not enough to support the special assessment. Ameral v. Dept. of Rev., 14 OTR 56, (1996. The language of that decision is equally applicable here: Furthermore, Stubbs boarded his horses on taxpayer's land just two to three months out of the year. In discussing the degree of use that must be made of the farm property, this court has stated: DECISION 3

4 The great boon of tax relief to the bona fide farmer through the special exemption for farm use is not to be extended * * * unless the day-to-day activities on the subject land are principally and patently directed to achieving a profit in money through the farm use of the land. Beddoe v. Dept. of Rev., 8 OTR 186, (1979 (emphasis added. Taxpayer's land was used only two to three months each year for farm use, which is insufficient to qualify for special assessment. The day-to-day activities rather than a few months each year must be directed at achieving a profit. Taxpayer complains that the property is unsuitable for anything else the rest of the year. That may be true, but it does not entitle taxpayer to special assessment. As noted in Taylor: The special farm use assessment results in a diminution of property taxes on certain farm property and this requires additional tax contributions by all taxpayers to meet the property tax levies. Justification is found in the retention of farmland for agricultural production in spite of intense economic competition to divert such land to allegedly higher and better uses. To continue the special farm use in the case of land unused or unusable would defeat the legislative policy. Taylor, 6 OTR at 501 (emphasis added. This precedent precludes giving plaintiffs the relief they request. Plaintiffs responsibility for taxes previously deferred is at this point held as a potential additional liability by ORS 308A.706(1(a. The property shall, for purposes of its annual assessment, have lost its status as lands in farm use. CONCLUSION IT IS THE DECISION OF THIS COURT that plaintiffs appeal is denied. Dated this day of August, DECISION 4

5 SCOT A. SIDERAS PRESIDING MAGISTRATE IF YOU WANT TO APPEAL THIS DECISION, FILE A COMPLAINT IN THE REGULAR DIVISION OF THE OREGON TAX COURT, FOURTH FLOOR, 1241 STATE ST., SALEM, OR YOUR COMPLAINT MUST BE SUBMITTED WITHIN 60 DAYS AFTER THE DATE OF THE DECISION OR THIS DECISION BECOMES FINAL AND CANNOT BE CHANGED. THIS DOCUMENT WAS SIGNED BY MAGISTRATE SCOT A. SIDERAS ON AUGUST 3, THE COURT FILED THIS DOCUMENT ON AUGUST 3, DECISION 5