October 22, 2007
ROSNER JEAN-GEORGES, PLAINTIFF-APPELLANT,
DIRECTOR, DIVISION OF TAXATION, DEFENDANT-RESPONDENT.
On appeal from the Tax Court of New Jersey, Docket No. 7501-2005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 26, 2007
Before Judges Cuff and Simonelli.
Appellant Rosner Jean-Georges appeals from an order dismissing the complaint filed by him in the Tax Court to review an assessment of sales and uses tax due. The Tax Court judge dismissed the complaint as untimely. We reverse and remand for further proceedings.
On July 5, 2005, the Division of Taxation issued a final determination in which it advised plaintiff that he owed $19,901 in taxes, penalties and interest for state sales and use tax and employer gross income tax for the December 31, 1994 through February 28, 1995 period. The determination contained a recitation of the facts that formed the basis for the decision. The July 5, 2005 notice of determination advised plaintiff that if he disputed the determination, he could "file a complaint with the required fee relative to this determination which must be received within (90) ninety days from the date of this notice, directly with the Tax Court of New Jersey . . . ." Plaintiff filed a complaint contesting the determination on December 22, 2005. Defendant moved to dismiss the complaint as untimely.
It is undisputed that the July 5, 2005 notice was sent to plaintiff by certified mail, return receipt requested and the notice was returned as undeliverable. N.J.S.A. 54:50-6.1a requires all notices of assessment to be sent by registered or certified mail. Defendant mailed the notice of determination to plaintiff by regular mail during the week of July 18, 2005. This mailing was not returned, but plaintiff denied receipt of the notice. Defendant mailed the notice to plaintiff a third time. The envelope bore a September 29, 2005 postmark and plaintiff acknowledged receipt of this notice on or about September 29, 2005. Plaintiff filed his complaint with the Tax Court on December 22, 2005.
The Tax Court judge acknowledged the existence of a factual dispute about when plaintiff received the notice of determination. He determined to forego an evidentiary hearing about when the notice was received by plaintiff "because it is undisputed that if there was indeed earlier notice, certainly the plaintiff does not dispute that on or about September 29th, at the least, he received the final determination." The judge also noted that the ninety-day limitation for filing a complaint in the Tax Court is jurisdictional and he is prevented from relaxing that requirement. He held, however, that he could toll the statute on equitable grounds if circumstances warranted and that he would do so in this case. Nevertheless, the taxpayer was required to act within a reasonable time of actual notice and plaintiff did not act expeditiously or reasonably even though the complaint was filed within ninety days of actual notice.
Having eschewed an evidentiary hearing to determine when plaintiff received the July 5 notice of determination in order to avoid an assessment of credibility, and having determined that the only certain date of notice was on or very shortly after September 29, 2005, the motion judge was not free to construct an equitable time period that constricted the time within which the taxpayer was required to file his complaint. The only proof of mailing and receipt was the September 29, 2005 mailing. The first mailing was returned as undeliverable. The second mailing did not conform to the statutory notice requirements.
According to the notice and statute, a taxpayer has ninety days to contest an assessment by filing a complaint in the Tax Court. N.J.S.A. 54:51A-14(a). We have not identified any authority that allows a Tax Court judge to fashion a different filing date. Once the judge determined September 29, 2005 as the date of service, the statutory period for filing a complaint in the Tax Court became operative. Tolling is invoked only to expand a time period for filing a pleading when the statutory prescribed time limit has passed but the interest of the litigant and the purpose of the program are effectuated. See White v. Violent Crimes Comp. Bd., 76 N.J. 368, 379 (1978) (statutorily created limitation periods may be tolled in particular circumstances if legislative purpose underlying the statutory scheme will be effectuated). Moreover, constriction of a filing date based on an individual assessment of reasonable behavior introduces uncertainty into a otherwise carefully structured process. See Harry's Lobster House Corp. v. Dir., Div. Taxation, 23 N.J. Tax 149, 158 (Tax 2006) ("'Statutes of limitation in tax statutes are strictly construed in order to provide finality and predictability of revenue to state and local government.'") (quoting Bonanno v. Dir., Div. Taxation, 12 N.J. Tax 552, 556 (Tax 1992)), aff'd, A-5569-05 (App. Div. June 4, 2007), certif. denied, ___ N.J. ___ (2007); Franklin Twp. v. N.J. Dep't of Envtl. Prot., 7 N.J. Tax 224, 231 (Tax 1984), aff'd, 7 N.J. Tax 657 (App. Div. 1985) (if time limitations in tax matters were subject to extensions and exceptions the amount of revenue to the State could not be conclusively established); Galloway Twp. v. Petkevis, 2 N.J. Tax 85, 92 (Tax 1980) (noting that throughout the tax legislation it is clear that the Legislature attempted to set out a well organized time-table). Having determined that the only certain date of notice of the tax due was September 29, 2005, the December 22, 2005 filing was timely. We, therefore, reverse the order dismissing plaintiff's complaint as untimely and remand for further proceedings.
Reversed and remanded for further proceedings.
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