Penalty

# (1)

(1) Definitions for the purposes of ORS 316.177 and this rule:

(a) "Frivolous position" includes, but is not limited to:

(A) Reference to a spurious constitutional argument

;

(B) Reliance on a "gold standard" or "war tax" deduction;

(C) An argument that wages or salaries are not includable in taxable income;

(D) An argument that the Sixteenth Amendment to the United States Constitution was not properly adopted; or

(E) An argument that "unenfranchised, sovereign, free men or natural persons" are not subject to the tax laws.

(b) "Reasonable basis" includes, but is not limited to:

(A) An employee filed a withholding statement or exemption certificate for the first time, and attempted, but failed, to correctly calculate the withholding rate in accordance with the instructions on the withholding statement or exemption certificate;

(B) An employee computed the withholding rate in accordance with the instructions on the withholding statement or exemption certificate, but due to unforeseen events, the withholding rate claimed is incorrect. Unforeseen events are events that could not have reasonably been anticipated and affect the taxpayer's taxable income or deductions for the tax year;

(C) An employee filed a withholding statement or exemption certificate because the employee relied upon the advice of an individual who is qualified to practice law or public accounting in this state or an individual who is licensed by the State Board of Tax Practitioners and the employee supplied the individual with complete information connected with the advice given.

# (2)

(2) A penalty is assessable against an employee when:

(a)

The employee claims exemption from withholding and the employee does not meet the exemption requirements provided in OAR 150-316-0237 and the department has determined there is no reasonable basis for such a claim

; or

(b)

The department has determined the employee's withholding is materially deficient, as defined in OAR 150-316-0290, and the withholding rate is corrected by notice to the employer and employee under OAR 150-316-0290.

# (3)

(3) A penalty shall not be assessed against an employee who, at the time the withholding statement or exemption certificate is filed, has a reasonable basis for the withholding statement or exemption certificate.

# (4)

(4) A penalty shall be assessed against an employee filing a withholding statement or exemption certificate in reliance on a frivolous position or with the apparent intent to delay or impede the administration of the income tax laws of this state.