Opinion
DOCKET NO. A-3516-13T4
04-06-2016
SMART PUBLICATIONS, LLC and ANTHONY LOMBARDO, Plaintiffs-Appellants, v. STATE OF NEW JERSEY, DIVISION OF TAXATION, Defendant-Respondent.
Harold P. Cook, III, argued the cause for appellant (Harold P. Cook, III & Associates, attorneys; Matthew A. Sebera, on the brief). Michelline Capistrano Foster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Foster, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from the Tax Court of New Jersey, Docket No. 12506-2013. Harold P. Cook, III, argued the cause for appellant (Harold P. Cook, III & Associates, attorneys; Matthew A. Sebera, on the brief). Michelline Capistrano Foster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Foster, on the brief). PER CURIAM
Plaintiffs Smart Publications LLC and its sole member Anthony Lombardo (collectively Smart Publications), appeal from a February 28, 2014 order affirming the dismissal of a Tax Court complaint challenging the imposition of a tax under the Sales and Use Tax Act, N.J.S.A. 54:32B-1 to -29 (the Act). Smart Publications engages in the production, printing and distribution of a monthly periodical, which was found by defendant, State of New Jersey, Division of Taxation (the Division), not to qualify as exempt under the Act as a newspaper. The Division imposed a sales and use tax assessment of $144,000, which Smart Publications protested. The Division moved to dismiss the complaint as untimely filed, depriving the Tax Court of jurisdiction. The Tax Court judge agreed and entered an order of dismissal on November 8, 2013. Smart Publications filed for reconsideration, which was denied by order dated February 28, 2014.
On appeal of the orders, Smart Publications contends: (1) the complaint was timely filed under the timely mailed, timely filed rule; and (2) the definition of "newspaper" stated in N.J.A.C. 18:24-1.2, used to interpret the exemption for newspapers set forth in N.J.S.A. 54:32B-8.30, is unconstitutionally vague and renders enforcement as to plaintiff an infringement of due process. We affirm.
The facts are not disputed. The Division issued a notice of demand for payment, assessing Smart Publications $144,000 for sales and use taxes accruing from October 2009 through June 2012. Lombardo, as Smart Publications' sole member, filed a protest with the Division, arguing Smart Publications was exempt from the sales and use tax as a newspaper. The Division conducted a hearing to review the matter and sent to Smart Publications' registered address, which was Lombardo's personal residence, a final determination upholding the assessment. The notice, dated May 6, 2013, included this instruction:
In the event you are not in accord with the above determination, you may file a complaint with the required fee relative to this determination[,] which must be received within (90) ninety days from the date of this notice, directly with the Tax Court of New Jersey in accordance with the provisions of N.J.S.A. 54:51A-13 et seq.
The determination was mailed to the taxpayer by certified mail with a copy to Smart Publications' counsel. The business address was Lombardo's home. On behalf of Smart Publications, counsel sent, via certified mail, a complaint to the Tax Court challenging the Division's final determination and a proof of service, attesting mailing was on August 6, 2013. The Tax Court received the complaint on August 9, 2013, ninety-five days following the date of the final determination.
The Division moved to dismiss Smart Publications' complaint with prejudice, arguing the Tax Court lacked jurisdiction to consider the matter because it was untimely presented. After reviewing written submissions and conducting oral argument, the Tax Court judge granted the Division's motion. Smart Publications' subsequent motion for reconsideration was heard, but relief was denied. This appeal ensued. The Tax Court judge filed an amplification of the reasons supporting his conclusions on April 29, 2014.
Mindful of the "deference afforded to the determinations of the Division, whose expertise in the complex and specialized subject of tax law 'is entitled to great respect by the courts,'" United Parcel Serv. Gen. Servs. Co. v. Dir., Div. of Taxation, 220 N.J. 90, 92 (2014) (quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984)), we do not afford similar deference to legal conclusions drawn and review them de novo. Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 79 (2006).
Relying on N.J.S.A. 54:49-3.1, Smart Publications maintains the complaint was timely filed with the Tax Court because it was mailed on August 6, the date due.
Application of the "timely mailed, timely filed" rule, stated in N.J.S.A. 54:49-3.1, is limited to allowing as timely "a protest mailed to the Division of Taxation within ninety days of receipt of the subject assessment notice." Estate of Pelligra v. Dir., Div. of Taxation, 23 N.J. Tax 658, 659 (Tax 2008). The same provision is not extended to the filing of a complaint in the Tax Court. Dougan v. Dir., Div. of Taxation, 17 N.J. Tax 110, 112 (App. Div. 1997).
An appeal submitted to the Tax Court is the "exclusive remedy available to any taxpayer for review of an action of [the Division]." N.J.S.A. 54:51A-16. All Tax Court complaints contesting a Division action must "be filed within [ninety] days after the date of the action sought to be reviewed." N.J.S.A. 54:51A-14(a). The rules governing procedures in the Tax Court mirror these provisions. See R. 8:4-1(b) (requiring complaints to "be filed within [ninety] days after the date of the action to be reviewed"). Rule 8:4-2(a) provides the ninety-day period is "calculated from the date of service of the decision or notice of the action taken."
The final determination issued by the Division contained an accurate statement of the time limitation imposed to file a complaint with the Tax Court. The language is clear and unmistakable. We reject Smart Publications' attempt to construe the statute governing the filing of protests with the Division as including commencement of an action by filing a complaint with the Clerk of the Tax Court. The distinction is obvious.
Our jurisprudence adds additional support for the requirement that filing a complaint in the Tax Court is complete upon the court's receipt, not when mailed. In Dougan, this court explained mailing a complaint to the Tax Court within the statutory ninety-day appeal period did not constitute timely filing if the complaint is actually received by the Tax Court on the ninety-first day. Dougan, supra, 17 N.J. Tax at 112. The Supreme Court and Tax Court have consistently recognized the "solid policy basis" requiring strict compliance with the ninety-day deadline as a jurisdictional imperative, requiring dismissal of Tax Court appeals received by the court beyond the ninety-day filing period. F.M.C. Stores Co. v. Morris Plains, 100 N.J. 418, 424 (1985) ("Strict adherence to statutory time limitations is essential in tax matters, borne of the exigencies of taxation and the administration of . . . government."). See also Slater v. Dir., Div. of Taxation, 26 N.J. Tax 322, 334 (Tax 2012) ("[I]f a plaintiff fails to file within the prescribed statutory timeframe, that plaintiff must be proscribed from an appeal in the Tax Court and any considerations of its case on the merits."), aff'd, 27 N.J. Tax 185 (App. Div.), certif. denied, 214 N.J. 119 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1878, 188 L. Ed. 2d 912 (2014); Bonanno v. Dir., Div. of Taxation, 12 N.J. Tax 552, 556 (Tax 1992) (holding courts should construe the limitations periods included in the tax statutes "to provide finality and predictability of revenue to state and local government"). Importantly, the burden of timely filing "falls squarely, and solely upon the taxpayer." Slater, supra, 26 N.J. Tax at 334 (citing Dougan, supra, 17 N.J. Tax at 112-13).
Smart Publications' contention that the date of receipt of the Division's final determination was not the date the certified mail was received by Lombardo's mother, who was housesitting while he was out-of-town, but the date he reviewed the letter because his mother was not authorized to accept the letter is also rejected. We conclude this contention, as well as others not specifically addressed, lack sufficient merit to warrant additional discussion in our opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.S.A. 54:49-3.1 addresses transmittal of
a tax return, report, notice, petition, protest, claim or other document to be filed or remittance containing payment of tax, required to be filed . . . delivered by United States mail to the director, bureau, office, officer or person with which or with whom the document is required to be filed . . . .This allows the date mailed to serve as the date of receipt. Smart Publications suggests "other document" as used in N.J.S.A. 54:49-3.1(a) includes a tax court complaint. This contention is erroneous.