Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
Clairol, Incorporated, is a Delaware corporation which has not qualified to do business in New Jersey. It appealed to the Division of Tax Appeals from the denial by the Director of the Division of Taxation of Clairol's claims for refund of the following taxes (besides interest) paid under protest for the years 1959 to 1963 inclusive:
The denial was bottomed on a determination by the Director that the "nature, extent and scope" of Clairol's activities in New Jersey were sufficient to "create a taxable status pursuant to the New Jersey Corporation Business Tax Act (N.J.S.A. 54:10A-1 et seq.)."
At the hearing before the Division, held in the latter part of 1967, Clairol sought to challenge not only the taxes for the years 1959 through 1963 but also those for the years 1964 to 1966, inclusive. The Director ruled that it had no jurisdiction to deal with the latter three years since Clairol had not filed a petition of appeal with respect to those years.
The Division affirmed the Director's determination with respect to the earlier five years, its opinion embodying findings of fact and conclusions of law on the basis of which it upheld the propriety of the tax levies. The appeal to this court followed.
Clairol did not in the Division, and does not here, challenge the amounts of the taxes it has been required to pay nor the fairness of the statutory allocation formulae used in computing them. Rather, it argues that its activities in New Jersey are such that levy of a corporation business tax on it is not authorized by the New Jersey statute and indeed is prohibited both by the Federal Constitution and by a federal statute. In addition, it argues that the Division
erred in refusing to consider its challenge of the taxes for the years 1964 through 1966, contending that "the tax years 1964 through 1966, in addition to the tax years 1959 through 1963 [were] properly before the Division and are ripe for decision in these proceedings."
There is no substance in the latter contention. The Division lacked jurisdiction to review the decisions of the Director of Taxation with respect to the years 1964 through 1966 because Clairol had not filed petitions of appeal from such decisions, a statutory prerequisite to the acquisition of jurisdiction by the Division. See N.J.S.A. 54:10A-19.2; Newark v. Fischer , 3 N.J. 488, 493 (1950). The three months limited by the cited statute for taking such an appeal had long since expired as far as the Director's rulings with respect to the years 1964 and 1965 were concerned. As for the year 1966, the time for appeal had not yet begun to run, the Director not having made a ruling with respect to Clairol's refund claim for that year.
Clairol's principal argument is that the nature and scope of its activities in New Jersey are so limited and insubstantial that this State may not constitutionally impose the corporate business tax upon it.
However, our examination of the record satisfies us that the evidence fully supports the Division's findings and conclusions to the contrary. The virtually uncontradicted evidence summarized in the Division's opinion establishes that Clairol exercises its corporate franchise in this State, owns and employs property in this State and maintains offices in this State to such an extent that "it can realistically be said that state government substantially affords protection and gives benefits to the corporation's enterprise within the state." Roadway Express Inc. v. Director, Division of Taxation , 50 N.J. 471, 483 (1967), appeal dismissed for want of a substantial federal question, 390 U.S. 745, 88 S. Ct. 1443, 20 L. Ed. 2d 276 (1968). In such circumstances the tax levied on Clairol is not subject to any constitutional infirmity.
It is of no constitutional significance that Clairol's activities and property ownerships in New Jersey are substantially less than those of the taxpayers in Roadway Express, supra; they are sufficiently extensive to afford a constitutional basis for holding Clairol subject to the provisions of the Corporation Business Tax Act.
There is no claim that the tax imposed on Clairol is either discriminatory or not fairly apportioned. That being so, it is to be deemed valid as "a fairly apportioned, non-discriminatory means of requiring * * * [Clairol] to pay its just share of the cost of state government upon which it necessarily relies and by which it is furnished protection and benefit." Roadway Express , 50 N.J. , at 491.
Clairol also contends that "P.L. 86-272, 15 U.S.C.A. § 381 et seq. , expressly invalidates the net income portion of the tax and inferentially invalidates ...