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IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax JEFFREY M. DUNKIN, Plaintiff, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Defendant. ) ) ) ) ) ) ) ) ) )

No. 021016F

DECISION OF DISMISSAL

This matter is before the court on its own motion to dismiss this case for want of prosecution. A case management conference was scheduled on September 30, 2002, to consider Plaintiff's appeal. On July 29, 2002, notice of the case management conference was sent to Plaintiff at 507 N. Arthur St. #C202, Kennewick, Washington 99336, which was the address Plaintiff provided to the court. The notice was not returned as undeliverable. Plaintiff did not appear at the case management conference, and there was no explanation for Plaintiff's failure to appear. On September 30, 2002, the court sent Plaintiff a letter, which explained the importance of diligently pursuing an appeal. This letter was returned as undeliverable on October 11, 2002. The letter advised that if Plaintiff did not provide a written explanation by October 10, 2002, for his failure to appear, the court would dismiss the appeal. As of this date, Plaintiff has not contacted the court. Under such circumstances, the court finds the appeal must be dismissed for want of prosecution. This matter is also before the court on Defendant's motion, made in its Answer, for an award of damages pursuant to ORS 305.437.1 That statute reads:
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Unless otherwise noted, all references to the Oregon Revised Statutes (ORS) are to 1999.

DECISION OF DISMISSAL CASE NO. 021016F

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"(1) Whenever it appears to the Oregon Tax Court that proceedings before it have been instituted or maintained by a taxpayer primarily for delay or that the taxpayer's position in such proceeding is frivolous or groundless, damages in an amount not to exceed $5,000 shall be awarded * * *. "(2) As used in this section, a taxpayer's position is `frivolous' if there was no objectively reasonable basis for asserting the position." ORS 305.437 (Emphasis added.) Even though he had income of $42,005, Plaintiff did not file a personal income tax return for 2000 because of his belief that he "was not involved in any taxable activities during 2000." (Ptf's Compl at 2.) Plaintiff presented no evidence that the $42,005 was not taxable income. Plaintiff's beliefs may be sincerely held, if misguided. This court has previously held that "[o]rdinary citizens without legal training are free to interpret the laws any way they choose. However, if their interpretations are contrary to those of the legislature and the Supreme Court, they do so at their peril." Harvey v. Dept. of Rev., 11 OTR 407, 409 (1990). In a case affirming the dismissal of a taxpayer's petition as frivolous and upholding the imposition of a penalty, the Fifth Circuit Court of Appeals stated: "An appeal that lacks merit is not always - or often - frivolous. However, we are not obliged to suffer in silence the filing of baseless, insupportable appeals presenting no colorable claims of error and designed only to delay, obstruct, or incapacitate the operations of the courts or any other governmental authority. * * * The government should not have been put to the trouble of responding to such spurious arguments, nor this court to the trouble of `adjudicating' this meritless appeal." Crain v. Com., 737 F2d 1417, 84-2 USTC

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