On appeal from the Superior Court, Law Division, Mercer County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c., (temporarily assigned).
This appeal requires us to decide whether the Division of Taxation, in furtherance of an investigation into possible violations of the sales-tax act, may subpoena the sales records of a sole proprietorship without violating the Fifth Amendment privilege against self-incrimination.*fn1 The trial court ruled that production of the records would not impair the privilege, and that, even if the privilege did apply, it should be suspended under the required-records exception.
On November 14, 1984 the New Jersey Division of Taxation issued a subpoena duces tecum directing Howard Siegel, sole proprietor of a jewelry store trading as Martin Jewelers, to produce documents in the Division's office on November 28, 1984. The subpoena required production of "All sales invoices, sales tax exemption certificates, credit card charge slips, delivery tickets, sales journal, general ledger and customer mailing lists covering the period of January 1, 1980 through September 30, 1984."
When Siegel failed to comply, the Division moved in the Law Division to enforce the subpoena, pursuant to R. 1:9-6(b). An order to show cause issued on January 3, 1985 and Siegel filed
a cross-motion to quash the subpoena on the ground that required production would violate his privilege against self-incrimination.
A hearing on the applications was held before Judge Lenox on March 29, 1985. After considering the oral arguments and briefs of the parties, Judge Lenox rendered an oral opinion granting the order to enforce the subpoena and denying the motion to quash, except to the extent he determined that the subpoena was overbroad. He reduced the time period covered by the subpoena from four to three years, since the record-keeping provision of the Sales and Use Tax Act requires that records be maintained for only three years. Further, he ordered that no records need be produced unless they were of the type which had to be maintained pursuant to the statute. A conforming order was entered on April 19, 1985, requiring production of "copies of each sales slip, invoice, receipt, statement or memorandum of taxable sales . . . covering the period October 28, 1981 through October 28, 1984."
Siegel has appealed and, pursuant to our order, has deposited the subpoenaed documents with the Clerk of Mercer County, without prejudice to his claims, pending the appeal.
We affirm the order enforcing the subpoena and denying the motion to quash substantially for the reasons expressed by Judge Lenox.
The subpoena, as amended, compelled production of records required to be maintained pursuant to N.J.S.A. 54:32B-16 which provides:
Every person required to collect any tax imposed by this act shall keep records of every sale or amusement charge or occupancy and of all amounts paid, charged or due thereon and of the tax payable thereon, in such form as the director may by regulation require. Such records shall include a true copy of each sales slip, invoice, receipt, statement or memorandum upon which subsection (a) of section 12 [ N.J.S.A. 54:32B-12] requires that the tax be stated separately. Such records shall be available for inspection and examination at any time upon ...