On appeal from the Tax Court of New Jersey, 004298-2000.
Before Judges King, Wefing and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2003
Petitioner, James Liapakis ("Liapakis" or"the taxpayer"), appeals from a judgment of the Tax Court dismissing his complaint as untimely and for lack of jurisdiction, pursuant to the applicable ninety-day limitations period prescribed with respect to Gross Income Tax disputes, N.J.S.A. 54A:9-10(a).*fn1 See also R. 8:4-1(b). The Tax Court judge held that the ninety-day period began to run upon the mailing of an assessment determination letter by the Director of the Division of Taxation ("the Director"). Because the complaint was filed with the TaX Court on the ninety-first day after the mailing date of the determination letter, the judge found the complaint untimely and dismissed for lack of jurisdiction. We reverse.
The Director determined that Liapakis owed $20,176 assessed as Gross Income Tax due for tax year 1995, pursuant to N.J.S.A. 54A:1-1 to 54A:10-12. The Director's determination letter was issued and mailed by certified mail on August 18, 2000. The certified mail was received by Liapakis on August 21, and his complaint was filed on November 17, 2000. The filing date was ninety-one days after the date the determination letter was mailed and eighty-eight days after the date it was received by the taxpayer. On January 16, 2001, the Director filed a motion to dismiss the complaint as untimely. On April 27, 2001, the Tax Court agreed, dismissing the complaint for lack of subject matter jurisdiction. Liapakis appeals from that determination.
Liapakis contends that his complaint was timely because the ninety-day period did not begin to run until he received the determination letter from the Director by certified mail. The Director contends that the taxpayer's complaint was untimely because the ninety-day limitations period began to run on the date the determination letter was mailed by the Director.
The narrow question before us is whether it is the date the Director mailed the determination letter by certified mail, or the date when the taxpayer received and signed for the certified mail, that begins the calculation of the ninety-day period. The answer depends on whether the court rules, adopted by the Supreme Court with respect to practice and procedure in the TaX Court,*fn2 apply to the calculation of the ninety-day period. If the court rules apply, then Rule 8:4-2 governs and the complaint was timely. On the other hand, if the court rules do not apply, the date of mailing begins the ninety days and the complaint is untimely.
Rule 8:4-2(a) provides:"The time period shall be calculated from the date of service of the decision or notice of the action taken." Additionally, Rule 8:4-2(b) provides:"[I]f notice of an action is mailed the time period within which a complaint for review may be filed shall be extended pursuant to R. 1:3-3." Rule 1:3-3 provides:"When service of a notice or paper is made by ordinary mail... 3 days shall be added to the period."
Although it may appear that the taxpayer's complaint did not meet the ninety-day time limit for appeal because Rule 8:4-2(b) extends time for filing only when the determination is mailed by ordinary mail,"pursuant to R. 1:3-3," closer analysis demonstrates that that is not the case. Under Rule 8:4-2(a), the start of the ninety-day period in which to appeal depends upon the date of service. The express incorporation of Rule 1:3-3 is explained by the fact that service by ordinary mail is deemed complete upon mailing. R. 1:5-4(b).
Rule 1:5-4(b) defines completion of service by mail."[S]ervice by mail... shall be complete upon mailing of the ordinary mail. If no ordinary mailing is made, service shall be deemed complete upon the date of acceptance of the certified or registered mail." Ibid. Rules 8:4-2(a) and 1:5-4(b) together describe this taxpayer's situation precisely. The time for appeal is to"be calculated from the date of service," R. 8:4-2(a), and service of the determination letter by certified mail was complete on the day Liapakis received and signed the postal service receipt, August 21, 2000. See R. 1:5-4(b). Thus if the court rules apply to determine the deadline for filing the complaint, then it was timely filed.
The taxpayer acknowledges that the analysis begins with N.J.S.A. 54A:9-10(a), a provision of the Gross Income Tax Law, which provides that any taxpayer may appeal a decision of the Director within ninety days"in accordance with the provisions of the State Tax Uniform Procedure Law ("Procedure Law")."*fn3 He argues that the relevant section of the Procedure Law is N.J.S.A. 54:51A-18, which provides:"Except as otherwise specifically provided by law, the form, content, service and all other matters with respect to the complaint and practice in the tax court shall be as prescribed by rules of court." Because the Procedure Law explicitly incorporates the rules of court, the taxpayer argues that the ninety-day period for filing an appeal with the Tax Court begins to run only upon receipt of the certified determination letter, pursuant to Rule 8:4-2(a) and Rule 1:5-4(b).
The taxpayer relies on the rationale of the Appellate Division in Tp. of Holmdel v. Director, Div. of Taxation, 12 N.J. Tax 112 (App. Div. 1991), aff'd o.b., 130 N.J. 522 (1992), for its holding that N.J.S.A. 54:51A-18 unequivocally directs that the rules of court are applicable to the calculation of the ninety-day limitations period for filing an appeal to the TaX Court from the Division of Taxation. He argues that Holmdel stands for the proposition that the court rules do not substantively increase the ninety-day limitations period, but instead prescribe the manner and procedure by which the ninety-day statutory period is to be calculated.
The Director also acknowledges that the analysis begins with N.J.S.A. 54A:9-10(a). He contends, however, that the applicable section of the Procedure Law to be read in conjunction with N.J.S.A. 54A:9-10(a) is not N.J.S.A. 54:51A-18, but N.J.S.A. 54:49-18a, which provides:"The time for appeal to the Tax Court... shall commence from the date of the final determination by the director." The Director argues that"the date of the final determination by the director" prescribes the commencement of the limitations period, and that date is the date of mailing pursuant to N.J.S.A. 54A:9-10(e), which provides:"for the purpose of forming a complaint, the decision of the director shall be deemed final on the date the notice of ...