Saint Joseph Contractor Corp. v. Director, Division of Taxation/Luis & Yanet P. Barboza v. Director, Division of Taxation

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT
COMMITTEE OF OPINIONS
TAX COURT OF NEW JERSEY
Olde Historic Courthouse
KATHI F. FIAMINGO 120 High Street
JUDGE P.O. Box 6555
Mount Holly, New Jersey 08060
609 288-9500, Ext. 38303 Fax 609 288-9475
March 25, 2020
Mark S. Cherry, Esq.
385 Kings Highway North
Cherry Hill, NJ 08034
Ramanjit K. Chawla
Deputy Attorney General
Division of Taxation
Richard J. Hughes Justice Complex
25 Market Street
P.O. Box 106
Trenton, New Jersey 08625-0106
Re: Saint Joseph Contractor Corp. v. Director, Division of Taxation
Docket No. 009715-2019
Luis & Yanet P. Barboza v. Director, Division of Taxation
Docket No. 009723-2019
Dear Counsel:
This letter constitutes the court’s opinion with respect to the Director, Division of
Taxation’s motion to dismiss the within complaints, with prejudice, for lack of subject-matter
jurisdiction pursuant to R. 4:6-2(a). For the reasons explained more fully below, the Director’s
motion is granted.
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I. Procedural History and Findings of Fact
On May 18, 2018, the Division of Taxation (the “Division”) sent a Notice of Assessment
related to final audit determination assessing $15,343.12 additional corporate business tax and
sales and use tax against plaintiff, Saint Joseph Contractor Corp. On the same date, the Division
sent a final determination to plaintiffs, Luis Barboza and Yanet P. Barboza assessing gross income
tax in the amount of $10,622.14 as a result of the audit. Both notices informed the plaintiffs that,
“[i]f, after you review this notice you disagree with the Division, you may submit a written protest
and a request for a hearing (if a hearing is desired) within 90 days of this notice.”
Under date of August 27, 2018, plaintiffs’ representative filed a Protest and Request for a
Hearing. On September 25, 2018, the Division informed the plaintiffs that the respective notices
assessing additional tax were dated May 18, 2018 and mailed on May 19, 2018. The denial further
noted that the time to file an appeal expired on August 17, 2018 and that the request for a hearing
had not been timely filed. As a result, the Division denied the request for a hearing. The notices
further informed plaintiffs that they had the right to file a complaint with the Tax Court of New
Jersey to appeal the denial “within 90 (ninety) days from the date of” the notice, which was
September 25, 2018.
On June 13, 2019, plaintiffs filed their complaints in Tax Court. The Director now moves
to dismiss plaintiff’s complaint with prejudice pursuant to R. 4:6-2(a) on the basis that both the
initial protests and the complaints in Tax Court were untimely. The Director thus argues that the
court lacks subject matter jurisdiction to consider the merits of plaintiff’s tax appeal.
Plaintiffs’ opposition acknowledges that their request for a conference was untimely.
Plaintiffs assert that their inability to promptly obtain proofs to support their claim for relief
resulted in them “unintentionally and mistakenly” missing the deadline for filing the protest, and
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that they were left with no choice but to file their complaints in Tax Court. Plaintiffs do not provide
any explanation for the delay in filing the Tax Court complaints. Plaintiffs ask that the court “relax
the [s]tatute of [l]imitations and accept the protest and/or [c]omplaint as timely.”
II. Conclusions of Law
N.J.S.A. 54:32B-21(a) of the Sales and Use Tax Act specifies that, “[a]ny aggrieved
taxpayer may, within 90 days after any decision, order, finding, assessment or action of the
Director of Taxation made pursuant to the provisions of this act, appeal therefrom to the tax court
in accordance with the provisions of the State Tax Uniform Procedure Law, R. S. 54:48-1 et seq.”
Furthermore, N.J.S.A. 54:32B-21(b) directs that “[t]he appeal provided by this section
shall be the exclusive remedy available to any taxpayer for review of a decision of the director in
respect of the determination of the liability of the taxpayer for the taxes imposed by this act.” Ibid.
N.J.S.A. 54:51A-14(a) of the State Uniform Tax Procedure Law governing appeals to the Tax
Court requires that “all complaints be filed within 90 days after the date of the action sought to be
reviewed.” Ibid.
The 90-day filing limitation is repeated in R. 8:4-1(b) which clearly states that
“[c]omplaints seeking to review actions of the Director of the Division of Taxation with respect to
a tax matter . . . shall be filed within 90 days after the date of the action to be reviewed.” The
ninety-day time period is calculated from the “date of service of the decision or notice of the action
taken.” R. 8:4-2(a). The statutory time periods incorporated in the New Jersey Court Rules are
jurisdictional. McMahon v. City of Newark, 195 N.J. 526, 530 (2008). They are not within the
“relaxation power of the Tax Court.” Pressler & Verneiro, Current N.J. Court Rules, Comment 1
on R. 8:4-1 (GANN) (2020) (citations omitted).
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A “failure to file a timely appeal is a fatal jurisdictional defect” and if a plaintiff fails to
file within the prescribed time frame, that plaintiff is proscribed from an appeal in the Tax Court
and any consideration of its case on the merits. F.M.C. Stores v. Borough of Morris Plains, 100
N.J. 418, 425 (1985). The burden of timely filing falls squarely and solely upon the taxpayer.
Slater v. Dir., Div. of Taxation, 26 N.J. Tax 332, 334 (Tax 2012) (citing Dougan v. Dir., Div. of
Taxation, 17 N.J. Tax 110 (App. Div. 1997)).
The Supreme Court has noted that “[s]trict adherence to statutory time limitations is
essential in tax matters, borne of the exigencies of taxation and the administration of . . .
government.” F.M.C. Stores, supra, 100 N.J. at 425. Such time limitations “in tax statutes are
strictly construed in order to provide finality and predictability of revenue to state and local
government.” Bonanno v. Dir., Div. of Taxation, 12 N.J. Tax 552, 556 (Tax 1992) (citing
Pantasote, Inc. v. Dir., Div. of Taxation, 8 N.J. Tax 160, 164-166 (Tax 1988)).
The Tax Court has repeatedly dismissed taxpayer’s appeals where the 90-day filing
limitation has not been observed. See, e.g., Slater v. Dir., Div. of Taxation, supra, 26 N.J. Tax
333-335; Off v. Dir., Div. of Taxation, 6 N.J. Tax 157, 164-166 (Tax 1996); People’s Express,
Inc. v. Dir., Div. of Taxation, 10 N.J. Tax 417, 424 (Tax 1989).
Here, the Director denied plaintiffs’ request for a hearing on September 25, 2018.
Plaintiffs’ complaints were not filed until more than 8 months later on June 13, 2019. The time
within which to file a complaint to review the action of the Director expired long before June 13,
2019. As a result, this court has no jurisdiction to hear plaintiffs’ appeals. In as much as the court
finds that the complaints are untimely, there is no need to review the Division’s position that the
protests filed by plaintiffs were also untimely.
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III. Conclusion
Plaintiffs’ failure to file their complaints within 90 days of the action of the Division is
fatal to this court’s consideration of plaintiff’s complaint. The court lacks jurisdiction to consider
the merits of this action.
The Division’s motion to dismiss the complaints is granted. The complaints are dismissed
with prejudice.
Very truly yours,
Kathi F. Fiamingo, J.T.C.
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