FRANK GREEK AND SON INC v. VERIZON NEW JERSEY INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK GREEK AND SON, INC.,

on behalf of itself and all

others similarly situated,

Plaintiff-Respondent,

v.

VERIZON NEW JERSEY, INC., formerly

known as Bell Atlantic New Jersey,

Inc. and NYNEX LONG DISTANCE

COMPANY, d/b/a Verizon Enterprise

Solutions,

Defendants/Third-Party

Plaintiffs-Appellants,

v.

DIRECTOR, DIVISION OF TAXATION,

Third-Party Defendant-Respondent.

________________________________________

August 26, 2016

Argued November 2, 2015 Decided

Before Judges Sabatino, Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1341-09.

Gavin J. Rooney argued the cause for appellants (Lowenstein Sandler LLP, attorneys; Mr. Rooney and Reynold Lambert, on the brief).

Carl Mayer and Jerome M. Marcus (Marcus & Auerbach LLC) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondent Frank Greek and Son, Inc. (Mayer Law Group, Mr. Marcus, and Linda M. Sinuk, attorneys; Mr. Mayer, Mr. Marcus, Jonathan Auerbach (Marcus & Auerbach LLC) and Ms. Sinuk, on the brief).

Heather Lynn Anderson, Deputy Attorney General, argued the cause for respondent Director, Division of Taxation (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Anderson, on the brief).

PER CURIAM

The question on this appeal, which is here on leave granted, is whether a Verizon New Jersey, Inc. business customer, Frank Greek and Son, Inc., which believes it has been overcharged "E911 fees," may maintain a class action lawsuit in the Law Division to recover the fees, and damages, from Verizon, which is statutorily responsible for collecting the fees and remitting them to the Division of Taxation, or whether it must file an individual refund claim in the Division to recover the overpayment. The Law Division determined the case could proceed in Superior Court, and Greek did not need to exhaust its administrative remedies by filing a refund claim. Because we conclude the State Uniform Tax Procedure Law, N.J.S.A. 54:48-1 to 54:53-19, incorporated in the E911 statute, provides the exclusive remedy for the refund of overpaid E911 fees in the first instance, we reverse.

In order to "provide a stable source of revenue for replacing the [then] current 9-1-1 infrastructure Statewide with a state-of-the-art enhanced 9-1-1 system," the Legislature in 2004 "imposed on each customer charged by a telephone exchange company for each voice grade access service line provided to that customer . . . a fee of $0.90 on any periodic bill" and specified that "[e]ach Private Branch Exchange (PBX) trunk or Centrex trunk equivalent[1] shall constitute an individual and separate subscribed service line" for purposes of assessment. N.J.S.A. 52:17C-18;Assembly Budget Comm., Statement to Gen. Assemb. 3112 (June 21, 2004).

The Legislature directed the telephone exchange companies to collect these E911 fees monthly and report and pay them over to the State on a quarterly basis, where the State Treasurer would "credit the fee revenue to the '9-1-1 System and Emergency Response Trust Fund Account.'" N.J.S.A. 52:17C-18c(1). The E911 statute provides specifically that "[t]he administration, collection and enforcement of the fee imposed by this [A]ct shall be subject to the provisions of the State Uniform Tax Procedure Law, [N.J.S.A.] 54:48-1 et seq., to the extent that the provisions of such law are not inconsistent with any provision of this [A]ct." Ibid.

Plaintiff Frank Greek and Son, Inc., a business customer of defendants Verizon New Jersey, Inc. and Nynex Long Distance Company, d/b/a Verizon Enterprise Solutions, filed a complaint on behalf of itself and other similarly situated Verizon business customers alleging it was overcharged E911 fees. Specifically, Greek alleged that Verizon charged its "Custopak" small business customers having one to five phone lines, "an E911 fee based on 6 lines, at $.90 per line[], for a total 911 fee of $5.40 per month." Greek claimed that charge violated Verizon's "Custopak Tariffby applying the 'Centrex III Line/Trunk Equivalency' table to Custopak accounts when calculating the 911 fee."

Verizon does not dispute that its Custopak customers having five or fewer lines pay a higher monthly E911 fee than they would if they were assessed the fee on a per-line basis. It maintains, however, that the E911 statute dictates the fee Greek was charged by mandating that "[e]ach [PBX] trunk or Centrex trunk equivalent shall constitute an individual and separate subscribed service line" to which the $.90 is to be applied. See N.J.S.A. 52:17C-18a(2). Because the Board of Public Utilities' "Line/Trunk Equivalency Table" makes Greek's two lines the equivalent of six trunks, Verizon asserts it collected E911 fees of $5.40 monthly from Greek, all of which it remitted to the State.

Although the State Uniform Tax Procedure Law, incorporated into the E911 statute, has a refund provision, see N.J.S.A. 54:49-14, Greek has never sought a refund from the Division of Taxation of the E911 fees Greek claims it overpaid. Instead, in February 2009, it filed a consumer fraud class action in the Law Division on behalf of itself and all other similarly situated Verizon Custopak customers having between one and five phone lines,2 claiming Verizon charged such customers E911 fees in amounts in excess of the amount fixed by N.J.S.A. 52:17C-18 and the applicable Verizon tariffs. In addition to asserting Verizon's over collection of the E911 fees violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, Greek also asserted claims for breach of contract and unjust enrichment.

After Verizon's motion to dismiss the complaint was denied in August 2009, it answered and filed a protective refund claim with the Division of Taxation.3 Verizon also separately sought an opinion from the Division confirming the absence of any authority for telephone customers to submit claims for E911 refunds to Verizon "or for Verizon to in turn seek such refunds from the Division on the customer's behalf." Verizon also sought confirmation that it had correctly calculated the E911 fees due from its Custopak customers "by applying the appropriate 'Centrex trunk equivalent' referenced in the 911 Fee statute (as contained in the Board of Public Utilities Tariff 2, Section A9.1.3(c)(3)) to determine the correct number of telephone lines subject to the 911 Fee imposed by the statute."

The Division responded to that request in October 2009. The Division noted that unlike the Sales and Use Tax Act, N.J.S.A. 54:32B-20, which allows a purchaser to seek a refund of over-collected sales or use tax from the seller, the State Uniform Procedure Law incorporated into the E911 statute "makes no mention that an end-user may seek a refund of the over-collected fee from the seller." Based on the absence of any statutory authority to permit E911 refund claims to be presented to the telephone exchange company collecting the fee, the Division concluded "Verizon customers seeking a refund of the 911 fee must submit a refund claim directly to the Division." The Division, however, declined to comment on whether Verizon had correctly calculated the fees collected from its Centrex Custopak customers as that "issue is currently the matter of a class action suit that the Division is not a party to."

In March 2011, Verizon made the Division a party to the Law Division action by filing a third-party complaint against the Director seeking contribution and indemnification for any E911 fees Verizon would be obligated by the entry of judgment to refund to any of its customers. The Division answered denying liability and contending the matter should be transferred to the tax court. After a lengthy period of discovery, Verizon moved for partial summary judgment4 contending Greek's exclusive remedy lay in a refund claim to the Division. The Division joined in that motion and cross-moved to dismiss the third-party complaint.

The Law Division judge denied the motions by Verizon and the Division of Taxation. Although his reasons for doing so are not entirely clear,5 the judge plainly rejected the argument that the State Uniform Tax Procedure Law, which requires that refund claims be brought in the Division of Taxation and expressly bars class actions, was controlling here. We granted Verizon's motion for leave to appeal and now reverse.

We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). As the parties agreed on the material facts for purposes of the motion,6 our task is limited to determining whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Because a trial court does not enjoy the advantage in discerning the law that it does in discerning the facts, a reviewing court owes no special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (noting no deference due the trial court's interpretation of the meaning of a statute).

N.J.S.A. 52:17C-18 is a straight forward, plainly written statute. The statute establishes a monthly fee of $.90 on each voice grade access service line provided by a telephone exchange company to customers having a service address in New Jersey, and expressly provides that "[e]ach [PBX] trunk or Centrex trunk equivalent shall constitute an individual and separate subscribed service line" for purposes of assessing the fee. N.J.S.A. 52:17C-18a(2).

The statute makes the telephone exchange companies responsible for collecting, reporting and remitting the fee to the State, and states plainly that "[t]he administration, collection and enforcement of the fee imposed by this [A]ct shall be subject to the provisions of the State Uniform Tax Procedure Law, [N.J.S.A.] 54:48-1 et seq., to the extent that the provisions of such law are not inconsistent with any provision of this [A]ct." N.J.S.A. 52:17C-18c(1). The State Uniform Tax Procedure Law provides a mechanism for refund of overpaid tax and requires "[e]ach taxpayer [to] file a separate refund claim. A refund claim on behalf of a class is not permitted." N.J.S.A. 54:49-14c.

Verizon and the Division of Taxation argue that the Legislature's incorporation of the State Uniform Tax Procedure Law into the E911 statute makes plain that it represents the exclusive remedy for a taxpayer seeking a refund of E911 fees, and that a consumer fraud class action against the collector of the fee is not permitted. We agree.

In Kawa v. Wakefern Food Corp. Shoprite Supermarkets, Inc., 24 N.J. Tax 39, 54 (Tax 2008), aff'd, 24 N.J. Tax 444 (App. Div.), certif. denied, 200 N.J. 369 (2009), Judge Menyuk carefully explained why the plaintiff, who alleged she was overcharged sales tax at the supermarket, could not maintain a consumer fraud class action to recover the excess tax the grocer had collected and paid over to Taxation, but instead had to file a refund claim with the Director. Kawa alleged she was overcharged sales tax on several different occasions when she used her shopper's club card to purchase items at a discounted sales price, and the defendant grocer calculated and collected the sales tax based on the full price of the item. Id. at 41. She claimed the grocer's overcharging of sales tax constituted an unconscionable commercial practice in violation of N.J.S.A. 56:8-2, and brought a complaint on behalf of herself and all others similarly overcharged. Id. at 45.

Applying the Lemelledo standard,7 Judge Menyuk found "a direct and unavoidable conflict between the provisions of the Sales and Use Tax Act and application of the Consumer Fraud Act." Id. at 51. Specifically, she found

the design of the Sales and Use Tax Act is for vendors to collect the tax even where there is some doubt as to taxability, and for vendors, acting as trustees of the State, to remit all monies collected under authority of the statute, whether correctly or incorrectly, intentionally or negligently, to the State.

[Id. at 53.]

Once the vendor remitted the collected taxes to the State, it was for the Director to determine the amount of tax due, and, upon proper application, to refund any tax "erroneously, illegally or unconstitutionally collected," thus making a refund claim to the Director the exclusive remedy for overpaid sales tax. Id. at 54; see also N.J.S.A. 54:32B-20(a).

In affirming Kawa, we found the defendant grocer "fulfilled its obligation to act as a trustee for the state in collecting sales tax based on a presumption of taxability, even if in error, and timely remitting all monies to the state," and there was "no need for [Consumer Fraud Act] protections to deter an unlawful practice as the Division, the agency with expertise in the field, has developed appropriate uniform sales tax collection procedures and refund remedies in furtherance of the legislative directive." Kawa, supra, 24 N.J. Tax at 450-51.

Agreeing with Judge Menyuk that the statutory and regulatory schemes of the Sales and Use Tax Act and the Consumer Fraud Act cannot be harmonized, we held Kawa's "exclusive refund remedy lay within the framework of the [Sales and Use Tax Act], and her cause of action under the [Consumer Fraud Act] was thus precluded as a matter of law." Id. at 451.

Although Kawa was decided under the Sales and Use Tax Act, its rationale is equally applicable here.8 Like the Sales and Use Tax Act, the design of the E911 Act is for the telephone exchange companies, acting as trustees of the State, to collect the fee imposed by the statute, and to remit all monies collected under its authority, "whether correctly or incorrectly, intentionally or negligently," to the State. Kawa, supra, 24 N.J. Tax at 53. It is then for the Director to determine, upon examination of a properly filed claim for refund, whether there has been an overpayment, and thus that the taxpayer "is entitled to a refund of the tax so overpaid and the interest on the overpayment." N.J.S.A. 54:49-15.

Like the grocer in Kawa, Verizon has fulfilled its statutory obligation, acting as a trustee for the State, to collect the E911 fee under the terms of the E911 Act and its tariff. If Verizon has done so wrongly, Greek's remedy, like Kawa's, lies in a refund claim with the Director of the Division of Taxation. The design of the E911 statute and its express incorporation of the State Uniform Tax Procedure Law make clear beyond debate that the Legislature intended a refund claim to serve as the exclusive remedy for overpayment of E911 fees, precluding a cause of action under the Consumer Fraud Act as a matter of law. See Kawa, supra, 24 N.J. Tax at 451.

Greek's arguments that the State Uniform Tax Procedure Law "is inconsistent with the [E911] [f]ee law itself," and that Kawa is inapplicable because it involved a tax and not a fee as here, do not require extended discussion. Both arguments are plainly without merit.

The E911 Act provides, as we have noted, that "[t]he administration, collection and enforcement of the fee imposed by this act shall be subject to the provisions of the State Uniform Tax Procedure Law, [N.J.S.A.] 54:48-1 et seq., to the extent that the provisions of such law are not inconsistent with any provision of this act." N.J.S.A. 52:17C-18c(1). As the E911 Act contains no other provision for recovery of overpaid E911 fees, nothing in the State Uniform Tax Procedure Law could be deemed inconsistent with the E911 Act.

Greek's argument that because "Verizon is the only party that sets, and can defend the E911 [f]ee's level [sic], it would be inconsistent with the E911 Law to send these claims to the State tax authorities," is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The E911 fee has been set by the Legislature, which also made the refund procedure of N.J.S.A. 54:49-15, the remedy for any claims of overpayment. To accept Greek's argument, we would have to accept that the Legislature did not understand the mechanics of the collection of the E911 fee it created or the import of incorporating the State Uniform Tax Procedure Law into the E911 Act. As we are not prepared to do so, we find no inconsistency in the Legislative directives here. See Pub. Serv. Elec. & Gas Co. v. Twp. of Woodbridge, 73 N.J. 474, 478 (1977) ("We can have no concern, short of constitutional considerations, with the wisdom or policy of a taxing statute. . . . [T]he best approach to the meaning of a tax statute is to give to the words used by the Legislature 'their generally accepted meaning, unless another or different meaning is expressly indicated.'" (quoting N.J. Power & Light Co. v. Twp. of Denville, 80 N.J. Super. 435, 440 (App. Div. 1963))).

Greek's attempt to distinguish Kawa because it dealt with a tax and not a fee rings equally hollow. The State Uniform Tax Procedure Law itself makes reference to "taxes, fees, interest and penalties imposed by any such State tax law, or by this subtitle." N.J.S.A. 54:49-1. Moreover, Greek has cited no authority for its argument that the State Uniform Tax Procedure Law applies only to taxes and not fees imposed to generate State revenues. The Legislature has incorporated the State Uniform Tax Procedure Law and its refund procedures into statutes imposing both taxes and fees. See, e.g., N.J.S.A. 54:18A-1.2 (tax on insurance companies); N.J.S.A. 54:30A-54.3 (tax on sewer and water companies); N.J.S.A. 54:4-11.1d (fee imposed on outdoor advertising signs); N.J.S.A. 54:10A-18c(4) (filing fees for professional corporations); N.J.S.A. 54:32F-1f (tire management fees). The fee cases Greek cites in support of its argument that challenges to governmental fees, as opposed to taxes, proceed in Superior Court relate to municipal or other fees which have no applicability to this matter.

We have considered Greek's argument that New Cingular Wireless PCS, LLC v. Dir., Div. of Taxation, 28 N.J. Tax 1, 23 (Tax 2014) supports the class action remedy it asserts as the only efficient means of adequately addressing the overpayment of E911 fees by members of Greek's proposed class,9 and reject its applicability here.

In New Cingular, a wireless telecommunications provider appealed to the tax court from the Director's denial of its $34,424,307.70 refund claim for sales tax erroneously collected on charges for internet access services from its New Jersey customers. Id. at 4. The refund claim was to implement New Cingular's part in a settlement agreement achieved in multi-district litigation in the federal courts to resolve fifty-four class action suits filed against New Cingular, its parent and associated companies. Id. at 5. The settlement agreement required New Cingular to file a refund claim with the Director for the sales tax collected from over a million of its New Jersey customers, and, if successful, to deposit the refund in an escrow account under the control of the federal court for distribution to identified customers. Ibid.

The Director denied $1,858,000 of the claim as barred by the four-year statute of limitations, and rejected the remainder on the grounds that New Cingular had not demonstrated that it had already reimbursed its customers the requested refund amounts as required under the Sales and Use Tax Act, N.J.S.A. 54:32B-20(a), and that a refund claim on behalf of a class is not permitted under N.J.S.A. 54:49-14c of the State Uniform Tax Procedure Law. Id. at 11. Judge DeAlmeida reversed, finding New Cingular had a statutory right under the Sales and Use Tax Act to have its refund application considered by the Director without first having to repay the tax it collected to its customers, and that N.J.S.A. 54:49-14(c) did not preclude the refund claim. Id. at 21.

To the point that concerns us, that the refund claim filed by New Cingular was not precluded by N.J.S.A. 54:49-14(c), Judge DeAlmeida reasoned that "N.J.S.A. 54:32B-20, which is more specific to New Cingular's sales tax refund claim than is the generally applicable N.J.S.A. 54:49-14(c), allows two actors to seek a refund of sales tax." Id. at 24. The customer who actually paid the tax may pursue an "individual refund" claim, N.J.A.C. 18:2-5.8(d)(2), and the person required to collect the tax, who has, in turn, paid over the tax to the Director, may pursue a "business refund" claim. N.J.A.C. 18:2-5.8(d)(1). Ibid. Because N.J.S.A. 54:32B-20(a) permits an entity statutorily charged with collecting sales tax and remitting it to the State to file a refund claim on behalf of a single customer and contains no limitation on the number of refund claims it may file, Judge DeAlmeida concluded New Cingular could not be prohibited "from filing a single refund claim individually listing each of its more than 1 million customers and the amount of the refund to which each is entitled." Id. at 22.

The judge further found that New Cingular's impetus for filing the refund claim was the settlement of a class action suit filed in federal court did "not convert New Cingular's refund claim into one filed on behalf of a class" and distinguished Kawa, as that case involved a consumer fraud class action filed in the Law Division. Id. at 22-23. As to Kawa, the judge noted New Cingular, "a person required to collect sales tax[,] filed a business refund claim pursuant to N.J.S.A. 54:32B-20(a), exactly what Judge Menyuk held [in Kawa] was the appropriate course of action when seeking a refund of erroneously collected sales tax." Id. at 24. Plainly, New Cingular provides no support for permitting a consumer fraud class action against Verizon to proceed in the superior court in lieu of a refund claim in the Division of Taxation.

It is important to remember, as the tax court acknowledged in New Cingular, that "[p]ublic policy discourages suits for the refund of taxes erroneously paid or illegally collected." Continental Trailways, Inc. v. Director, Div. of Motor Vehicles, 102 N.J. 526 (1986), cert. denied, 481 U.S. 1001, 107 S. Ct. 1636, 95 L. Ed. 2d 195 (1987). Indeed, absent specific statutory authority, "taxes erroneously, illegally or unconstitutionally collected cannot be refunded." Great Adventure, Inc. v. Dir., Div. of Taxation, 9 N.J. Tax 480, 484 (Tax 1988). Accordingly, the tax court has reasoned "that when the Legislature does provide for refunds there must be strict compliance with its direction." Id. at 484-85.

We agree with that proposition, and conclude it, and the rationale of Kawa, mandates that Greek exhaust the administrative remedy the Legislature has provided in the Division of Taxation for a refund of the E911 fees Greek claims it has overpaid. Whether New Cingular provides a model for how a refund to other identified Verizon customers could be effected in the event the Director agrees that Greek overpaid E911 fees, whether the Director would permit Verizon to pursue its protective refund claim on behalf of its customers in such event, notwithstanding that this is not a sales and use tax matter, or whether another avenue, such as a declaratory judgment, could be pursued to the same end, are all matters not before us and not ripe for resolution.10

We resolve only the question presented, that is, whether Greek may maintain a class action lawsuit in the Law Division to recover E911 fees, and damages, from Verizon, or whether it must file an individual refund claim in the Division of Taxation to recover the overpayment. Because we conclude the law is clear that Greek may not maintain its consumer fraud class action against Verizon and must instead pursue the administrative refund remedy the Legislature has provided, we reverse.

Reversed.

1 Neither "PBX trunk" or "Central Office Exchange (Centrex) trunk equivalent" is defined in the statute. As we understand it from the record, a PBX customer has its own private telephone switching facilities, which provide it the ability to maintain an internal telephone network with direct three to five digit dialing among other features, while accessing the public switched telephone network via "trunks." Each trunk in a PBX system serves many user stations, thereby saving the customer the costs of individual phone lines. A Centrex system customer obtains those same benefits through Verizon's own centralized facilities, thereby saving the customer the costs of installing and maintaining a PBX system. The Board of Public Utilities employs a trunk equivalency table in Verizon's Centrex tariff which provides that between one and fifteen Centrex lines is the equivalent of six PBX trunks.

2 Custopak customers having six lines pay E911 fees at the same rate as customers having six service lines, whereas Custopak customers having more than six lines pay E911 fees at a rate less than the $.90 per service line rate.

3 In its explanation of the claim, Verizon stated it was filed "in response to the putative class action filed against it seeking return of 911 fees in the amount of $15,000,000 collected from certain Centrex CustoPAK customers." Verizon further stated its contention "that no refunds are owed to these customers and that even if refunds are owed, they must be filed by the customers directly with the Division of Taxation." Noting the Superior Court had rejected its motion to dismiss on that ground, Verizon demanded refund "of any amounts that are held to be required be refunded by Verizon New Jersey, Inc. to these customers."

4 Plaintiff asserted additional claims against Verizon relating to the marketing and sale of Custopak services. Those allegations were severed and made the subject of a separate complaint after the filing of Verizon's partial summary judgment motion. The claims on appeal are the only claims pending now under the original docket number.

5 Although the judge engaged in an extended colloquy with counsel when the motions were argued, he did not state his reasons for denying partial summary judgment either on the record or by noting them on the order as required by Rule 1:6-2(f). Relying on the judge's statements in the colloquy, the parties ascribe different reasons to the judge's refusal to find that Greek was required to file a refund claim in the Division. Because all agree that the judge's decision rested on his interpretation of the law, which we review de novo, see Nicholas v. Mynster, 213 N.J. 463, 478 (2013), we need not resolve the parties' conflicting positions on this point.

6 Although plaintiff has asserted a claim for unjust enrichment against Verizon, it presented no proof on the motions to counter Verizon's documentary evidence of having remitted all E911 fees collected to the Division. The trial judge noted there was nothing in the record to support the claim that Verizon had failed to remit all E911 fees to the Division. Plaintiff has not challenged that finding on appeal.

7 In Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255, 270 (1997), the Supreme Court adopted the following test for determining whether activity presumptively within the ambit of the Consumer Fraud Act is nevertheless exempt from the statute's reach

 
In order to overcome the presumption that the [Consumer Fraud Act] applies to a covered activity, a court must be satisfied . . . that a direct and unavoidable conflict exists between application of the [Consumer Fraud Act] and application of the other regulatory scheme or schemes. It must be convinced that the other source or sources of regulation deal specifically, concretely, and pervasively with the particular activity, implying a legislative intent not to subject parties to multiple regulations that, as applied, will work at cross-purposes. We stress that the conflict must be patent and sharp, and must not simply constitute a mere possibility of incompatibility.

8
If anything, this matter presents a clearer case for an administrative refund claim being the exclusive remedy for overpayment because the Sales and Use Tax Act, unlike the E911 Act and the State Uniform Tax Procedure Law, permits a direct claim against the vendor collecting the sales tax in certain limited circumstances. See Kawa, supra, 24 N.J. Tax at 57-58.

9
We note that no motion for class certification had been filed before we granted leave to appeal. Accordingly, issues arising under Rule 4:32 are not before us.

10
Greek's claims that the Division of Taxation can be held to positions offered as part of settlement negotiations or that judicial estoppel bars the State from abandoning such positions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We specifically reject that plaintiff has been in any way prejudiced by the Division's conduct in this matter. Plaintiff has been aware since at least October 2009 of the Division's position that "Verizon customers seeking a refund of the 911 fee must submit a refund claim directly to the Division." In determining to never file such a claim, Greek has plainly proceeded at its own risk.