Comcast, MERS in high court

Published 4:00 am Tuesday, January 8, 2013

SALEM — The Oregon Supreme Court has a full docket today and expects to heararguments on a tax case involving Comcast and a separate case involving home foreclosures and the Mortgage Electronic Registration System, or MERS.

After the state of Oregon defined Comcastas a communication company, its assessed tax rates spiked in the 2009-2010 fiscal year. The value of communication companies can be centrally assessed, which means the state may take into consideration the company’s intangible assets, such as worldwide value or brand recognition.

Central assessment can result in a much bigger tax bill for companies like Comcast. State lawmakers are also working to update the decades-old tax statute that defines communication companies.

The Oregon Department of Revenue attempted to assess Facebook’s data center in Prineville using the same law.

In 2012, lawmakers passed legislation ensuring Facebook would not be centrally assessed as a communication company.

Comcast appealed the tax change in the Oregon Tax Court and won. Judge Henry Breithaupt took aim at the Department of Revenue in his 2011 opinion and addressed the 1970s-era statute that was also at the heart of the Facebook dispute.

“Without exaggeration,” he wrote, “it appears that the position of the department is that ‘data transmission,’ a component of the definition of ‘communication,’ includes whatever the department says it includes, so long as the tremendously broad and expansive definitions of ‘data’ and ‘transmission’ are arguably applicable.”

Switching gears, the high court will also listen to oral arguments on two cases related to MERS. The most well-known dates back to an Oregon case that started in 2009.

Rebecca Niday, a resident of the small community of Rhododendron, near Mount Hood, received a foreclosure notice. The sale was made on behalf of MERS, making MERS the beneficiary. Niday sued, saying that MERS couldn’t be the beneficiary because it did not have a financial stake in her property.

The lower court ruled in favor of MERS, but the Oregon Court of Appeals reversed the decision. The appellate court ruled that MERS could not foreclose unless each transfer of a mortgage had been recorded, which the state law requires.

The state’s highest court will consider whether MERS can act as a beneficiary, which would mean it could foreclose on homeowners without every loan assignment being documented in county records.

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