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Gottesman v. Division of Employment Security

Decided: October 21, 1957.

JOSEPH GOTTESMAN, TRADING AS GOTTESMAN'S DELICATESSEN, PETITIONER-APPELLANT, AND FLEISSNER REALTY CO., INC., PETITIONER-APPELLANT,
v.
DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT



On appeal from Department of Labor and Industry.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Oliphant, Burling, Jacobs and Francis. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J. Heher, J., concurring in result.

Burling

[25 NJ Page 147] These are appeals pursuant to R.R. 4:88-8 from decisions of the Commissioner of Labor and Industry, affirming rulings of the Director of the Division of Employment Security which denied portions of appellants' claims for refund of contributions paid under the Unemployment Compensation Law. The liability in dispute is for those contributions which accrued prior to July 1, 1948, and interest and penalties thereon. By order of the Appellate Division dated March 15, 1957 the causes were consolidated for appeal. By our own motion, we certified the case prior to hearing below. R.R. 1:10-1.

The facts are not in dispute and have been stipulated.

Appellants, Gottesman and Fleissner, became indebted to the Division of Employment Security in 1946, but they failed to file required reports and the Division had no knowledge of their liability. It is stipulated that no fraud was involved in the failure to make reports. In 1954 the Division first acquired knowledge of their respective liabilities. On June 17, 1954 the Division determined that Gottesman owed contributions totalling $2,726.16 for the years 1946 to 1953, inclusive, plus interest and penalties. Gottesman paid the amount owing for contributions. On March 26, 1954 the Division assessed Fleissner in the amount of $2,118.02, which sum represented liability for contributions, interest and penalties which accrued during the years 1946 to 1949, inclusive. Subsequently, Fleissner paid the amount due for such contributions, interest and penalties.

Gottesman and Fleissner made claims for refunds pursuant to R.S. 43:21-14(f); Gottesman requesting a refund of that portion of the contributions paid for the years 1946 to 1949, inclusive, in the amount of $1,252.78 and for abatement of all penalties for those years, and Fleissner requesting a refund of the entire amount paid for the years 1946 to 1949. Both refund claims were premised upon the four-year limitation provision of N.J.S.A. 43:21-14(b) (L. 1952, c. 187, p. 657, § 6).

Gottesman's claim for a refund came to the attention of the Division's Collector of Delinquent Accounts. That administrative official, by letter dated June 1, 1956, authorized a refund of contributions and interest for the calendar years 1946 through 1949 and the first quarter of 1950, amounting to $1,417.97, and issued a certificate of overpayment in the above amount.

Fleissner's claim came to the attention of the Chief of Contributor's Service of the Division who, by letter dated June 11, 1956, approved the claim in view of "the decision of the courts in the case of Eureka Printing Co."

The action taken in both cases was reviewed by the Director of the Division. The Director approved the refund of that

portion of the amount which had been paid by Gottesman with respect to liabilities which accrued from July 1, 1948 to March 31, 1950, amounting to $495.80, and denied a refund of the amounts which accrued prior to July 1, 1948. Similarly as to Fleissner, the Director approved a refund of that portion of the amount that had been paid with respect to liability which had accrued from July 1, 1948 to December 31, 1949, inclusive, i.e., $740.71, and denying a refund of the amount with respect to liability which accrued prior to July 1, 1948.

In both instances the Commissioner of the Department of Labor and Industry with written opinion affirmed the decision of the Director. The Commissioner's view was that liability for any period prior to the third quarter of 1948 had to be paid at any time the Division made its assessment.

The initial question presented on this appeal is whether the four-year limitation on the liability of employers for unpaid unemployment contributions prescribed by N.J.S.A. 43:21-14(b), as amended by L. 1952, c. 187, p. 657, § 6, operates to bar the Division of Employment Security from ...


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