January 12, 2009
M.J. OCEAN, INC., PLAINTIFF-APPELLANT,
DIRECTOR, DIVISION OF TAXATION, DEFENDANT-RESPONDENT.
On appeal from the Tax Court of New Jersey, whose opinion is reported at 23 N.J. Tax 648 (2008).
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Cuff, Fisher and Baxter.
Plaintiff, M.J. Ocean, Inc., appeals from a February 15, 2008 order of the Tax Court that granted the motion filed by defendant, Director, Division of Taxation, to dismiss plaintiff's complaint seeking a refund of sales tax paid from November 1998 through April 1999. Although the refund claim was filed in January 2005, more than two years after the expiration of the four-year refund claim period established by N.J.S.A. 54:32B-20(a), plaintiff maintained that it was nonetheless entitled to a refund because defendant waited nearly three years after plaintiff first submitted its refund claim in January 2005 to assert the statute of limitations defense set forth in N.J.S.A. 54:32B-20(a). Plaintiff further argued, and defendant did not dispute, that defendant considered plaintiff's refund on the merits and on October 25, 2006, granted a partial refund without at any time asserting the claim was untimely. Judge Kuskin, J.T.C., rejected plaintiff's contention that the doctrines of waiver, equitable estoppel and laches preclude defendant from asserting the statutory time bar. M.J. Ocean, Inc. v. Dir., Div. of Taxation, 23 N.J. Tax 646, 648 (Tax 2008). We affirm substantially for the reasons expressed by Judge Kuskin in his comprehensive and well-reasoned opinion. R. 2:11- 3(e)(1)(A) and (E).
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