Seneca Sustainable Energy v. Lane County Assessor

No. 1 	March 7, 2018 	1
IN THE OREGON TAX COURT
REGULAR DIVISION
SENECA SUSTAINABLE ENERGY, LLC,
Plaintiff,
v.
LANE COUNTY ASSESSOR
and Department of Revenue,
Defendants.
(TC 5323)
Plaintiff included in its petition for special designation to the Regular
Division of the Tax Court a motion for abeyance pending a Supreme Court ruling
and a motion to consolidate the case with other cases involving the same prop-
erty in previous tax years. Defendant Department of Revenue objected to both
motions, but not to special designation. Granting the motion for abeyance and
denying the motion to consolidate, the court ruled that the request to place the
case into abeyance could be granted because the pending Supreme Court appeal
regarding other tax years could affect the substance of the litigation in the case
and abeyance would be the most efficient course of action, while consolidation
should be denied because Plaintiff’s motion did not show a common question of
law with the other cases, and apart from the fact that all of the cases generally
involved the same property, Plaintiff did not adequately demonstrate that the
facts and evidence were substantially the same between the instant case and the
previously consolidated cases.
Submitted 	on 	Plaintiff’s 	motions 	for 	abeyance 	and
consolidation.
Cynthia M. Fraser, Garvey Schubert Barer, PC, Portland,
filed the motions and argued the cause for Plaintiff.
Marilyn J. Harbur, Senior Assistant Attorney General,
Department of Justice, Salem, filed the objection and argued
the cause for Defendant Department of Revenue.
Decision rendered March 7, 2018.
ROBERT T. MANICKE, Judge.
I. 	INTRODUCTION
This matter is before the court on two requests of
Plaintiff Seneca Sustainable Energy, LLC.1 Plaintiff first
1 Plaintiff made these requests in conjunction with its petition for special
designation, which Defendant did not oppose. The court granted Plaintiff’s peti-
tion for special designation separately by its order of February 21, 2018.

2 	Seneca Sustainable Energy v. Lane County Assessor
requests the court to place this case into abeyance pending
the outcome of Defendant Department of Revenue’s appeal
to the Oregon Supreme Court from this court’s decisions in
Seneca Sustainable Energy v. Lane County Assessor, 21 OTR
366 (2014), and Seneca Sustainable Energy, LLC II v. Dept. of
Rev., 22 OTR 263 (2016). The tax years before the Supreme
Court are 2012-13 and 2013-14. Plaintiff also requests the
court to consolidate this case, which concerns tax year
2017-18, with cases TC 5247 (Control), 5273, and 5294 (col-
lectively referred to as the consolidated cases), which con-
cern tax years 2014-15 through 2016-17. Defendant objects
to both requests.
II. 	ABEYANCE
The court first considers Plaintiff’s request to place
this case into abeyance pending outcome of the Supreme
Court appeal as to tax years 2012-13 and 2013-14. Neither
party identified the court’s authority to place a case in abey-
ance or a standard for doing so. The court is not aware of
a statute that expressly provides authority for the court to
hold this case in abeyance. However, the court finds that
authority in ORS 305.405, 2 which grants the court the same
powers as the circuit courts, including the power to arrange
its own docket. 3 Cf. Landis v. N Am Co, 299 US 248, 254-55,
57 S Ct 163, 81 L Ed 153 (1936) (stating “the power to stay
proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for
litigants. How this can best be done calls for the exercise of
judgment, which must weigh competing interests and main-
tain an even balance.”).
2 The court’s references to the Oregon Revised Statutes (ORS) are to the 2017
edition.
3 The court’s rules are not instructive. They contemplate placing a case in
abeyance in two situations. The first situation is where “either or both parties are
uncertain about jurisdiction and file the same claim or claims in another court.”
Tax Court Rule (TCR) 21 G(4). In that case, the court has discretion to “hold the
case in abeyance until the claims filed in the other court are finally determined.”
Id. The second situation involves a party seeking to add to or correct a transcript
of court proceedings. See TCR 58. Neither situation is applicable here. The court’s
rules also discuss “postponement” of trial in TCR 52 D. However, no trial has
been scheduled in this matter.

Cite as 23 OTR 1 (2018) 	3
This court has previously exercised its author-
ity to place cases into abeyance pending the outcome of
Supreme Court opinions, even where the appeal before the
Supreme Court apparently concerned different litigants. See
Waterbury v. Dept. of Rev., 11 OTR 314, 314 (1989) (noting
prior abeyance); see also In re Willamette Industries, Inc., 8
OTR 324, 326 (1980) (noting prior abeyance by stipulation).
The Oregon appellate courts have also placed cases into
abeyance pending the outcome of other proceedings. See
Stone Container v. Fryman, 112 Or App 8, 9, 827 P2d 205
(1992); Goldhammer v. AFSD, 63 Or App 587, 589 n 1, 666
P2d 268 (1983).
Oregon’s practice seems consistent with the federal
courts’ general recognition that a “ ‘court may, with propri-
ety, find it is efficient for its own docket and the fairest course
for the parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the
case.’ ” Mediterranean Enterprises, Inc. v. Ssangyong Corp.,
708 F2d 1458, 1465 (9th Cir 1983), quoting Leyva v. Certified
Grocers of California, Ltd., 593 F2d 857, 863-64 (9th Cir
1979). Requests for abeyance arise relatively often in this
court because most taxes are assessed or reported on a peri-
odic cycle of one year or less. E.g., ORS 308.210(1) (annual
property assessment as of each January 1); ORS 314.385(1)
(income tax returns due annually for each “tax year”); ORS
316.168 (state and transit district employment tax returns
due quarterly); ORS 320.315 (statewide lodging tax returns
due quarterly). Although it is well settled that each tax year
or period stands on its own,4 the parties to a tax controversy
typically recognize sufficient factual similarity between tax
periods that they jointly move for abeyance of later tax peri-
ods pending resolution of earlier tax periods.
The court has not found an Oregon opinion listing
specific factors to be considered in whether to place a case
into abeyance. Despite the obvious difference in context, the
court finds instructive the following factors identified by
federal courts in determining whether to stay a civil pro-
ceeding in the face of criminal proceedings:
4 Gilmore Steel Corp. v. Dept. of Rev., 9 OTR 210, 224 (1982) (income tax);
ESCO Corp. v. Dept. of Rev., 307 Or 639, 646, 772 P2d 413 (1989) (property tax).

4 	Seneca Sustainable Energy v. Lane County Assessor
“(1) the interest of the plaintiffs in proceeding expedi-
tiously with this litigation or any particular aspect of it,
and the potential prejudice to plaintiffs of a delay; (2) the
burden which any particular aspect of the proceedings may
impose on defendants; (3) the convenience of the court in
the management of its cases, and the efficient use of judi-
cial resources; (4) the interests of persons not parties to the
civil litigation; and (5) the interest of the public in the pend-
ing civil and criminal litigation.”
Keating v. Office of Thrift Supervision, 45 F3d 322, 325 (9th
Cir 1995), citing Federal Sav & Loan Ins Corp v. Molinaro,
889 F2d 899, 902 (1989). 5 These factors can be summed up
as (1) the interests of the parties, (2) the convenience of the
court and the efficiency of its processes, and (3) the interests
of nonlitigants and other members of the public.
Using those factors as a guideline, the court consid-
ers the request for abeyance in this case. Plaintiff argues
that, if the Supreme Court affirms this court’s prior deci-
sions, the “adjudicated value” provisions of ORS 309.115
would, subject to certain exceptions, generally cause this
court’s determinations of the real market value to also apply
to tax year 2017-18. Defendant does not appear to dispute
the substance of Plaintiff’s adjudicated value argument.
Rather, Defendant attacks the premise. Defendant claims
the “primary issue” before the Supreme Court is whether
this court had authority to make a value determination
regarding Plaintiff’s property. Accordingly,
“if the court had no jurisdiction to hear the 2014-15 and
2015-16 tax year cases’ valuation issues so the decision is
moot, then no adjudicated value could be determined for
the later years because no tax court ‘order correcting the
real market value of a separate assessment of property’
will have been entered. ORS 309.115(1).”
The parties’ arguments, including Defendant’s “if /
then” argument, make clear that the outcome of the Supreme
Court appeal will substantially affect the proceedings in
this case, which supports a conclusion that the court should
5 The Oregon Court of Appeals cited Keating in Sawyer v. Real Estate Agency,
268 Or App 42, 342 P3d 104 (2014). However, beyond identifying the factors, the
court did not adopt them. See id. at 53 n 9.

Cite as 23 OTR 1 (2018) 	5
place this case into abeyance.6 If the Supreme Court upholds
the values this court set for tax years 2012-13 and 2013-14,
the adjudicated value statutes will make those values the
starting point in determining the value for 2017-18, subject
to “trending,” “additions,” “retirements,” and certain other
exceptions. See ORS 309.115(1), (2). That statutory frame-
work is quite different from the kind of full-blown “actual
appraisal” that starts with such foundational data as
“[e]nergy market price information” specific to the 2017-18
tax year, which Defendant suggests would be the subject of
discovery if the adjudicated value statutes do not apply. It is
in the interests of the parties to find out the required start-
ing point before spending resources on discovery requests
that may or may not be on point; similarly, the court needs
to know the statutory framework before it can evaluate
any discovery disputes. Finally, neither the public interest
in quickly and efficiently resolving industrial property tax
appeals, as expressed in ORS 305.487,7 nor the interests of
local taxing jurisdictions 8 would be served by prematurely
6 Although finding that abeyance is proper here, the court cautions that
abeyance may not be warranted in every situation in which a pending Supreme
Court opinion might affect a case. It is conceivable that a case may be able to
proceed on portions of the case not substantially affected by a pending Supreme
Court opinion.
7 ORS 305.487 provides:
“(1) The Legislative Assembly finds that:
“(a) Industrial property that is appraised by the Department of Revenue
under ORS 306.126 and property that is centrally assessed by the depart-
ment under ORS 308.505 to 308.681 involve large amounts of property value
and complex appraisal issues.
“(b) Appeals of the value of state-appraised industrial property or cen-
trally assessed property can have significant impact on the stable funding
of essential local government services because of the fiscal consequences of
substantial tax refunds.
“(c) The people of this state and the owners of state-appraised industrial
property or centrally assessed property are best served by the efficient reso-
lution of property tax appeals related to these properties.
“(2) The Legislative Assembly declares that it is the policy of this state
to strongly encourage taxpayers, local governments, the department and the
Oregon Tax Court to resolve appeals related to the value of state-appraised
industrial property or centrally assessed property as quickly and efficiently
as possible, in order to reduce the financial impacts of lengthy appeal
processes.”
8 Counties collect property taxes on their own behalf and on behalf of cities,
school districts, and other local government units. See ORS 310.010; ORS 310.060.

6 	Seneca Sustainable Energy v. Lane County Assessor
proceeding to litigate a case without knowing whether the
adjudicated value statutes apply to the tax year. The court
therefore determines that placing this case into abeyance is
the more efficient alternative for all concerned.
Plaintiff’s request to place this case into abeyance
is granted.
III. 	CONSOLIDATION
The court next considers Plaintiff’s request to con-
solidate this case, which concerns tax year 2017-18, with the
consolidated cases, which concern tax years 2014-15 through
2016-17.
The rule providing for consolidation is Tax Court
Rule (TCR) 53. TCR 53 A provides:
“Upon motion of any party, when more than one action
involving a common question of law or fact is pending before
the court, the court may order a joint hearing or trial of any
or all of the matters in issue in such actions; the court may
order all such actions consolidated; and it may make such
orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay. In property tax cases, each
year constitutes a separate action. Cases involving more
than one year may be consolidated for trial if the facts and
evidence are substantially the same and can be separately
established as to each year without confusion.”
Although Plaintiff requested consolidation, Plaintiff did not
address the standard under TCR 53 A. Plaintiff’s motion
appears to treat the requests for abeyance and consolidation
as one request. Although some considerations may support
abeyance and consolidation—such as efficiency—those acts
of the court are not one and the same.
The thrust of Plaintiff’s request is that this case,
along with the consolidated cases, may be substantially
affected by the pending opinion of the Supreme Court. That
argument supports placing this case into abeyance, but not
necessarily consolidating it with the prior cases.
Depending on the opinion of the Supreme Court,
this case and those previously consolidated may involve “a
common question of law,” namely the application of the adju-
dicated value provisions of ORS 309.115. However, in the

Cite as 23 OTR 1 (2018) 	7
absence of that common question of law, and apart from the
fact that all of the cases generally involve the same prop-
erty, Plaintiff has not adequately demonstrated that “the
facts and evidence are substantially the same” between this
case and the consolidated cases.
Plaintiff’s request for consolidation is denied. How-
ever, no part of this order should be read as denying either
party the opportunity to raise the question of consolidation
again once the Supreme Court has issued its opinion as to
tax years 2012-13 and 2013-14. At that time, the parties are
free to pursue consolidation; otherwise, this case will pro-
ceed on its own track based on the default rule that “[i]n
property tax cases, each year constitutes a separate action.”
See TCR 53 A.
IV. 	CONCLUSION
Plaintiff’s request to place this case into abeyance is
granted because the pending Supreme Court appeal regard-
ing tax years 2012-13 and 2013-14 may affect the substance
of the litigation in this case and abeyance is the most effi-
cient course of action. Plaintiff’s request to consolidate this
case with the consolidated cases is denied at this time. Now,
therefore,
IT IS ORDRED that Plaintiff’s motion for abeyance
is granted. This case is placed into abeyance until resolution
of the Supreme Court appeal, or until further order of this
court.
IT IS FURTHER ORDERED that Plaintiff’s motion
for consolidation is denied.