BLATCHFORD, DAVID & ANNE (O) (2014)
Topic Code: P356 Protests - Filing Requirements; Timeliness; Dismissals Document Reference: 14300006
Iowa Department of Inspections and Appeals
Administrative Hearings Division
Wallace State Office Building – Third Floor
Des Moines, IA 50319
In the Matter of: )
) DIA No. 13DORFC005
David and Anne Blatchford, )
)
v. )
)
Iowa Department of Revenue. ) DISMISSAL ORDER
)
Retail Sales Tax )
This matter was set for a hearing to be held on August 1, 2013 on a motion to dismiss filed by the respondent Department of Revenue (the department). The department appeared through Assistant Attorney General Donald Stanley. The protesters did not appear. I waited ten minutes before releasing the department’s representative and declaring a default.[1]
I note that the underlying issue raised in the motion concerned the protesters’ failure to respond to the department’s request for information within 30 days from the date of the request.[2] The protesters did not present any evidence or argument to rebut the claims made in the motion. Accordingly, this case is dismissed on the additional ground raised in the motion to dismiss.
ORDER
The protest is deemed denied based on the protesters’ default and their failure to present any evidence or argument to rebut the claim made in the department’s motion to dismiss. The department’s assessments are affirmed. The department may take any action necessary to implement its decision.
Issued on August 7, 2013.
Jeffrey D. Farrell
Administrative Law Judge
cc: AGO – Donald Stanley (by email)
AGO – Connie Larson (by email)
Rep. – Robert Scott (by regular mail)
Appellants (by regular mail)
NOTICE
This decision shall be final unless a motion to vacate is filed and served on all parties within 15 days after the date of notification or mailing of the decision, or an appeal of a decision on the merits is filed and served within 30 days. In order to succeed on a motion to vacate, a party must establish good cause for failing to appear at the hearing. The motion to vacate must state all facts that establish good cause. Each fact must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact. All affidavit(s) must be attached to the motion.
|
IN THE MATTER OF
DAVID AND ANNE BLATCHFORD 1711 S. Alice Street Sioux City, IA 51106-2213
INDIVIDUAL INCOME TAX |
DOCKET NO. 2012-200-1-0080
DIRECTOR’S FINAL ORDER |
PROCEDURAL SUMMARY
An administrative law judge (“ALJ”) issued a Dismissal Order in the above-captioned matter on August 7, 2013, entering a default decision against David and Anne Blatchford (“Protesters”) for failure to appear. The Dismissal Order was appealed to the Director of the Iowa Department of Revenue (“Department”) by the Protesters on August 16, 2013. A hearing was scheduled for November 13, 2013. The Department filed a responsive letter prior to the hearing on November 13, 2013.
Special Assistant Attorney General Donald D. Stanley, Jr. appeared representing the Department. Robert E. Scott represented Protesters at the hearing by telephone.
The administrative law judge ordered that the protest be denied based on Protesters’ default and their failure to present any evidence or argument or rebut the claim made in the department’s motion to dismiss. The administrative law judge ordered that the Department’s assessments be affirmed and that the Department take any action necessary to implement its decision.
During the course of the hearing, after presenting Protesters’ argument and receiving questions from the Director of the Department, Mr. Scott indicated that he did not want to participate further in the hearing and hung up the phone. The Director then asked Mr. Stanley to present the Department’s case.
The Director, having examined the record developed by the parties, issues this order.
FINDINGS OF FACT
A protest challenging the Department’s assessment was filed by Robert E. Scott of the R. E. Scott Company on March 14, 2012. On May 7, 2012, the Department sent a position letter to Mr. Scott, which stated that the protest did not conform to the requirements of rule 701 IAC 7.41(2). The position letter also provided that “if you disagree with our position and wish to pursue the protest, please inform me in writing within 30 days of the date of this letter. You must provide detailed reasons for your disagreement and support for all of your position. If no response is received within 30 days of the date of this letter, I will file a Motion to Dismiss the protest as provided in rule 701 IAC 7.44 on the grounds that the protester failed to pursue the protest.”
On March 28, 2013, the Department filed a Motion to Dismiss as no response to its request for information had been received. On April 3, 2013, Protesters, through Linda L. Kennedy of R.E. Scott Company, responded to the Motion to Dismiss, but did not offer a rationale or explanation for the absence of a response and did not address the issues set out in the Department’s letter.
Based on the failure to comply with the requirements necessary to pursue the protest, the Department opted under rule 701 IAC 7.11(2)(b) to pursue its Motion to Dismiss, and notified Protesters with a letter mailed on April 19, 2013. On May 17, 2013, the administrative law judge set the hearing on the Motion to Dismiss for 3:00 p.m. on June 13, 2013. On June 5, 2013, the ALJ issued an Order on Motion for Continuance, and scheduled a telephone hearing for 1:30 p.m. on August 1, 2013. The hearing was held at that time. However, the Protesters’ representative, Mr. Scott, failed to appear or participate, and the ALJ declared a default decision after waiting 10 minutes for Mr. Scott to appear.
In the administrative law judge’s Dismissal Order, he provided a NOTICE, which stated that in order to vacate the part of the order relating to failure to appear at the hearing, protester would need to file a motion to vacate within 15 days after the date of notification or mailing of the decision and establish good cause for failure to appear at the hearing. No motion to vacate was filed. However, a letter from Mr. Scott’s company, dated August 13, 2013, was sent to the Director setting out a reason as to why Mr. Scott missed the administrative law judge hearing.
CONCLUSIONS OF LAW
The Director finds that Mr. Scott did not respond to the Department’s request for information within 30 days from the date of the request. Mr. Scott also did not present any evidence showing that there is good cause to set aside the default decision, as required by Iowa Admin. Code r. 701—7.17(7).
The meaning of good cause was established by the Iowa Supreme Court in Purethane v. Iowa State Board of Tax Review, 498 N.W.2d 706, 711 (Iowa 1993), which stated that “‘good cause’ for setting aside a default judgment is a sound, effective, truthful reason, something more than an excuse, a plea, an apology, an extenuation or some justification for the resulting effect.” “Failure must not be the result of negligence, want of ordinary care or attention, or due to carelessness or inattention.” See id.
Mr. Scott stated he missed the hearing because he had to go to Washington, D.C. to meet with Senator Tom Harkin regarding a $17 million “Tiger Grant” for highway and road improvements for the City of Sioux City. However, Mr. Scott did not offer any reason as to why he did not notify the administrative law judge or Mr. Stanley that he was going to be out of town during the hearing, nor did Mr. Scott establish that he was unable to tell the administrative law judge or Mr. Stanley that he was going to be out of town. The reason Mr. Scott offered for failing to appear at the administrative law judge hearing does not rise to the level of good cause. It is merely an excuse. Mr. Scott did not present any evidence that failure to appear at the ALJ hearing was anything other than negligence.
ORDER
IT IS THEREFORE ORDERED that the administrative law judge’s Dismissal Order is affirmed, and the Department’s assessments are affirmed.
Issued at Des Moines, Iowa this ___8th___ day of January, 2014.
IOWA DEPARTMENT OF REVENUE
BY: __________________________________
CERTIFICATE OF SERVICE
I certify that on this ___8th__ day of January, 2014, I caused a true and correct copy of the Director’s Final Order to be delivered or forwarded by U.S. Mail to the following person(s):
David & Anne Blatchford
1711 S. Alice Street
Sioux City IA 51106-2213
Robert E. Scott
R.E. Scott Company
916 Grandview Blvd.
Sioux City, IA 51101
Donald D. Stanley, Jr.
Assistant Attorney General
Hoover State Office Building
Second Floor
Des Moines, IA 50319
______________________________
Kristina DeLisi
Executive Secretary
NOTICE
An aggrieved taxpayer has thirty days from the date of the Director’s Final Order to file an appeal to the Iowa State Board of Tax Review or the Iowa District Court. The appeal must be made in writing. The appeal shall be directed to:
If to the Iowa State Board of Tax Review:
State Board of Tax Review
Department of Revenue
Hoover State Office Building
Fourth Floor
1305 E Walnut St
Des Moines, Iowa 50319
If to the District Court:
The appeal can be filed in either the Polk County district court or in the district court for the county in which the petitioner resides or has its principal place of business.
Information regarding the clerk of court for each county can be found at: http//www.iowacourts.gov/Administration/Directories.