On appeal from the Tax Court of New Jersey, Docket No. 000149-2005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
In this Tax Court appeal, plaintiff Bridgestone/Firestone Research, Inc. (Bridgestone) appeals from an order entered on February 16, 2007 granting summary judgment in favor of defendant dismissing the complaint on the ground that the tax appeal was not timely filed. We affirm.
The facts giving rise to this appeal are as follows. Bridgestone, a Delaware corporation doing business in New Jersey, converted to a limited liability company (LLC) on November 28, 2001. The new entity was then included in Bridgestone Americas Holding, Inc. (Bridgestone Americas) and was treated as a division of the parent company for federal and state tax purposes. Bridgestone filed its final tax return in New Jersey on May 8, 2002 for the 2001 tax year. The return address on the May 8, 2002 tax return was 50 Century Boulevard, Nashville, Tennessee, the address for Bridgestone Americas. In January 2003, Bridgestone Americas moved to 535 Marriott Drive, Nashville, Tennessee.
On March 17, 2004, the New Jersey Division of Taxation (Division) Auditor, Michael McSloy, sent a letter to Bridgestone indicating that its corporate tax returns would be audited for 1999, 2000, 2001 and 2002. The letter, requesting detailed information for those tax years, was sent to the address on the last tax return filed in New Jersey: 50 Century Boulevard, Nashville, Tennessee.
When the Division received no response to the March 17, 2004 letter, McSloy sent another letter to the same address on May 3, 2004. This letter was returned unopened with a post office stamp stating "ATTEMPTED UNKNOWN" on the front of the envelope. On May 12, 2004, McSloy sent another letter, enclosing the March 17 letter, to Bridgestone Americas at the new address, 535 Marriott Drive, Nashville, Tennessee.
In response to the May 12 letter, Bridgestone sent to the Division a copy of the March 17 letter and copies of the tax returns for the years to be audited. There was no cover letter or any contact information included in the envelope, which was postmarked May 24, 2004. The return address on the envelope was BFS Diversified Products, LLC, 535 Marriott Drive, P.O. Box 140990, Nashville, Tennessee.
On June 1, 2004, McSloy called the phone numbers listed on Bridgestone's May 8, 2001 tax return, but was unable to reach anyone. Consequently, on that date, McSloy sent a Notice of Estimated Tax Assessment to Bridgestone at 535 Marriott Drive, demanding payment within fifteen days of the total estimated amount of $816,954 for the 1999 through 2002 tax years. The Notice stated that "[t]he above assessment is levied by reason of the taxpayer's failure to furnish previously requested information," and advised the taxpayer that the tax, penalty and/or interest would be "irrevocably fix[ed] . . . unless you shall apply to the Director of the Division of Taxation for a hearing within ninety (90) days from the date of this notice." The notice then set forth the procedure for filing a protest and requesting a hearing. The ninety-day time for appeal expired on September 2, 2004. Bridgestone claims, however, that it did not learn of the New Jersey tax audit until it received a Certificate of Debt from an independent source, after the ninety-day appeal period had expired.
Bridgestone finally contacted the Division,*fn1 indicating that it would provide the information requested in the initial audit letter dated March 17, 2004. The Division, however, declined to review the information until Bridgestone Americas signed a formal "Taxpayer's Agreement Waiving Appeals from Possible Adjustment of Taxpayer's Liability by Division of Taxation" (Agreement). The Agreement expressly stated that the ninety-day time to appeal had expired and that "the taxpayer has no right to appeal the assessment determination because of the lapse of the statute of limitations." The Agreement further stated:
Whereas the Division of Taxation may, in its discretion, examine the appropriate books of accounts and records of the taxpayer in order to determine the propriety of the assessment, but only to [sic] express condition that any revision that may be made of that assessment not constitute a decision of determination for purposes of filing appeal with the New Jersey Tax Court or any other administrative or judicial body.
It is, therefore, hereby agreed that any revision or other changes made by the Division of Taxation with respect to the taxes, interest and penalties due and owing to the Division of Taxation by the taxpayer resulting from the December 2, 2004 assessment will not constitute a decision, action or determination that will form the basis on the part of the taxpayer or its representatives for filing an appeal with the New Jersey Tax Court or any other administrative or judicial body; and
It is further agreed that in consideration of the Division of Taxation agreeing to reopen the audit for the periods in question, the taxpayer will agree to pay the statutory costs of ...