On appeal from a Final Judgment of the Tax Court, Docket Numbers 005627-1999, 005628- 1999 and 005629-1999, whose opinion is reported at 19 N.J. Tax 599 (Tax 2001).
Before Judges Havey, Wells and Payne
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Under N.J.S.A. 54:10A-6, a New Jersey corporation that maintains a regular place of business outside New Jersey may allocate a portion of its income away from New Jersey in computing income taxable under the New Jersey Corporate Business Tax Act, N.J.S.A. 54:10A-1 to -4. Plaintiffs, River Systems, Inc., Rubachem International, Ltd. and Rubachem, Inc., filed separate complaints in the Tax Court challenging a determination by the Department of the Treasury, Division of Taxation, denying plaintiffs' application for refunds based on an allocation of some income to the State of New York predicated on sales solicited in New City, New York. General Litesearch, Inc., which has offices in New City, has owners in common with plaintiffs, sells light bulbs to plaintiffs, and engages in telemarketing activity and administrative services from its offices on plaintiff's behalf. The facilities in which General Litesearch engages in its activities are owned by Lemar Investment Company, also owned in common by plaintiffs owners.
Plaintiffs' complaints were consolidated in the Tax Court and heard on motions and cross-motions for summary judgment. Judge Joseph C. Small granted summary judgment in defendant's favor.
On appeal, plaintiffs assert that the judge erred because: (1) they maintain a regular place of business outside New Jersey and are thus entitled to utilize the business formula of N.J.S.A. 54:10A-6 to determine which portions of their income are to be used in measuring corporate business tax due; (2) even if they do not maintain a regular place of business outside New Jersey, they are entitled to the application of the three-factor allocation formula of N.J.S.A. 54:10A-6 through N.J.S.A. 54:10A-8; and (3) genuine issues of material fact exist precluding the grant of summary judgment in favor of defendant.
We affirm substantially for the reasons expressed by Judge Small, whose opinion is reported at 19 N.J. Tax 599 (Tax 2001).