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Swarbrick v. New Jersey Division of Taxation

July 29, 2010

RICHARD C. SWARBRICK, EXECUTOR OF ESTATE OF OLIVE M. HORNICH, PLAINTIFF-APPELLANT,
v.
NEW JERSEY DIVISION OF TAXATION, DEFENDANT-RESPONDENT.



On appeal from the Tax Court of New Jersey, Docket No. 005823-2008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2010

Before Judges Wefing, Messano and LeWinn.

Plaintiff, Richard C. Swarbrick, an attorney at law and executor of the estate of Olive M. Hornich, appeals from the dismissal with prejudice of his complaint against defendant, the New Jersey Division of Taxation (the Division). Olive owned a home located at 411 Rivercrest Drive, Piscataway.*fn1 She died on February 13, 2006, and plaintiff was appointed executor in March. As part of his administration of Olive's estate, plaintiff attempted to secure a Homestead Rebate (HR) for the year 2005. When his efforts were unsuccessful, plaintiff filed suit on February 20, 2008, in the Small Claims Section of the Law Division, Special Civil Part, Middlesex County, seeking the rebate. The matter was transferred by that court to Mercer County, which in turn transferred the complaint to the Tax Court on the Division's motion. The matter proceeded to trial over the course of two days.

At the first hearing, plaintiff contended that the HR application had been sent to the wrong address. His attempts to contact the Division through the toll-free telephone numbers provided were frustrating and fruitless. The Division, however, contended that it had no record of an application ever being filed. The Tax Court judge adjourned the hearing and requested that plaintiff produce a witness who could testify as to Olive's residence on October 1, 2005, the operative date to determine eligibility for the rebate.

At the second hearing, Olive's son Edward testified that his mother resided at 411 Rivercrest Drive from September 1961 until the date of her death. On the day she died, Edward arrived at her home to take her to a doctor's appointment. He received no response at the door, saw that his mother was unresponsive on the floor, and called 9-1-1. Police arrived and entered the home but Olive had expired.

The proofs before the Tax Court judge revealed that a standard form HR application was mailed to Olive at 841 Sherwood Road, Bridgewater. Edward testified that that address was his brother Frank's address, the brother having had all of Olive's mail forwarded to him prior to her death. The application was pre-printed with Olive's Piscataway address as the subject property. As is typical, the application provided for telephonic filing or on-line filing, and clearly indicated that it must be filed no later than June 1, 2006.

Plaintiff acknowledged receipt of the application at his law office shortly after Olive's death, though he could not recall "how it got there . . . ." Plaintiff had no telephone records to document his calls to the Division prior to filing suit because "the telephone company sa[id]" the records were unavailable for calls to "an 800 number." Plaintiff contended that he called the Division three times but never received a confirmation number for the application and was unable to speak to anyone in person.

Meg Jones, a representative from the Division, testified that no application was received for the 2005 HR regarding Olive's property. She identified a letter sent by the Division to plaintiff on April 28, 2008, informing him that no application had been received, and further informing him that any application would now be denied as time-barred. The Division indicated that plaintiff could nonetheless file an application and appeal the formal denial to the Tax Court. The letter provided a specific telephone number, 609-943-5000, in the event there were additional questions.

Jones described the toll-free telephonic filing system in detail, noting that the Division did not record phone calls into the system. Jones testified that the system does not produce a record of any call unless and until a confirmation number is issued, and none was issued in this instance.

Plaintiff acknowledged receipt of the April 2008 letter, and further believed that he called the phone number provided, though he explained that he called "all the numbers." He contended that he received "a run around," and was again directed to call the toll-free number. He believed he forwarded an application in accordance with the letter, but he had no record in that regard.

The Tax Court judge reviewed the testimony. She found the application for Olive's 2005 HR was sent to her son's address and received by plaintiff shortly after Olive's death. She further concluded that "there was no filing of the application" through the telephone system, and that there was "no real record or testimony as to when any subsequent contacts were made with the Division . . . ." The judge determined there was no "attempt to make a timely application . . . [a]nd . . . no application ha[d] ever been filed" in any format. The judge dismissed plaintiff's complaint, and this appeal followed.

Plaintiff contends that we should reverse the Tax Court's order and compel the Division to pay the appropriate HR because the Division failed to maintain records of his attempt to file an application, and because the Division failed to properly send an application to Olive's home address, or otherwise facilitate the filing of an application by mail. He further seeks an order "forbidding the State to deal with taxpayers by one-way recordings and to have one on one communications with taxpayers . . . ." We have considered these arguments in light of ...


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