On appeal from the Tax Court of New Jersey whose opinion is reported at 19 N.J. Tax 356 (Tax 2001).
Before Judges King, Wefing and Wecker.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Approved for Publication: September 10, 2003
Plaintiff Petrie Retail, Inc. appeals from the Tax Court's June 13, 2001 order which denied it interest on certain refunds paid by defendant Secaucus, as well as attorney's fees and costs. The defendant cross-appeals from the order which imposed certain interest payments on it. The Tax Court's decision appears at 19 N.J. Tax 356 (Tax 2001). We affirm.
These cases involve six of eight separate tax appeals which the parties had settled. Id. at 359. Each of the stipulations of settlement contained a standard clause waiving plaintiff's right to statutory interest pursuant to N.J.S.A. 54:3-27.2*fn1"provided the tax refund is paid within 60 days of the date of entry of the Tax Court Judgment." Ibid.
The judge sent directions, based on the stipulations, to the Tax Court Administrator to enter all of the judgments. For several reasons, the judgments were not entered at the same time. Six of the judgments were entered on September 1, 2000; two of these judgments were amended and were again entered on September 11, 2000; and two other judgments were not entered until September 22, 2000. The amended judgments entered on September 11, 2000 in two cases (#5095 and #3742) were required to correct the name of the plaintiff taxpayer, incorrectly designated as Hartz Mountain Pet Care in the caption. Four of the judgments were dated September 1, 2002 and were never amended or otherwise dated. (Numbers 002342, 000447, 000084, and 002343).
On October 24, 2000 the Secaucus municipal council approved a refund totaling $667,226.44. A refund check in that amount was printed the next day. Because there were insufficient funds to cover the check, it was held until November 1 and mailed on November 2. Plaintiff received the check on November 6, sixty six days after September 1. From September 1 to October 31 was sixty days.
Plaintiff requested statutory interest at 5% on the amounts owed under the six original September 1 judgments. Defendant balked at this request and moved for post-judgment modification of the stipulations of settlement and for legal fees. Plaintiff cross-moved for statutory interest and legal fees.
Defendant argued that all of the judgments should have been considered as one unit or a single package because only one refund check was issued. As such, the sixty-day period should have started on September 22, the date the final two of the eight judgments were entered. Defendant also argued that the sixty-day waiver provision was"boilerplate," not intended for strict enforcement but merely as a guide for timely payment. Because the grace period allegedly was a"soft" sixty days, defendant asked the Tax Court"to invoke its equitable jurisdiction to extend the waiver of interest provision." Id. at 361. Defendant also argues that interest should not be allowed on the two September 11 amended judgments because the November 6 actual receipt of the refund was within sixty days of the date of entry. The total refund due on these judgments was $240,208.50.
The Tax Court judge rejected all but the last argument. Id. at 361-64. The judge calculated the sixty-day period from September 11, the date these amended judgments were entered. Receipt of the refund on November 11 was timely as to these two judgments and within the sixty-day period. He properly concluded that the statutory"final judgment" language controlled respecting payment of interest, see N.J.S.A. 54:3-27.2. We agree, especially where the taxing authority was not at fault in preparing the initially inaccurate judgments dated September 1.
As to counsel fees, the judge said that an award would be appropriate if defendant's failure to comply with the sixty-day grace period was the"result of'carelessness, reckless indifference, [or] intentional failure.'" Id. at 365 (quoting Trisun Corp. v. Town of W. New York, 18 N.J. Tax 533, 537 (Tax 2000), aff'd in part and rev'd in part, 341 N.J. Super. 556 (App. Div. 2001). The judge ruled in the case before us that:
From the facts presented, this court cannot conclude that the municipality intended to be late, tried to be late, or attempted to abridge the rights of taxpayer in any way. Taxpayer has made no showing of the aforementioned factors which would warrant that this court require the municipality to pay any ...