MAINSTREET SUPER SERVICE INC v. DEPARTMENT OF THE TREASURY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1013-16T3

MAIN STREET SUPER SERVICE,
INC.,

        Appellant,

v.

DEPARTMENT OF THE TREASURY,

     Respondent.
________________________________

              Argued telephonically January             31,   2018    -
              Decided February 16, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from the New Jersey Department of
              the   Treasury,  Division of   Revenue  and
              Enterprise Services.

              Shabbir Q. Shehabuddin argued the cause for
              appellant   (Law   Offices  of  Abdelhadi  &
              Associates,   LLC,   attorneys;  Shabbir  Q.
              Shehabuddin, on the briefs).

              Jonathan B. Peitz, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General; attorney; Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Jonathan B. Peitz, on the briefs).

PER CURIAM
     This matter concerns an attempt to revoke the allegedly

fraudulent dissolution of a New Jersey corporation.               In March

1999, Main Street Amoco, Inc. was incorporated.        Nassar Yousef was

listed in the certificate of incorporation as the corporation's

sole director.    The name of the entity was slightly amended in

June 1999 to Main Street Super Service, Inc.            The corporation

owned real property in New Jersey on which it operated a gas

station.

     Pursuant to a stock purchase agreement dated March 3, 2006,

Palm and Olive Realty, LLC ("Palm")1 bought all of the shares of

stock of Main Street.      Mohammed Huzien is the "managing member"

of Palm.   The sales agreement stated that Yousef, the seller, was

at the time the owner of all of the company shares, free and clear

of any restrictions.

     On March 8, 2006, five days after the sales agreement had

been executed, a "Certificate of Change, Registered Name or Address

or Both" was filed with the State Treasurer.            The certificate

advised the State that Yousef was the "withdrawing agent" and

Huzien was the new agent of Main Street.

     Evidently,   Yousef   thereafter   took   steps   to    dissolve     the

corporation,   allegedly    without   the   knowledge       of   Huzien    or


1
  In the appellate Case Information Statement,               appellant     is
identified as Palm and Olive Realty, LLC.

                                  2                                 A-1013-16T3
appellant.     On May 15, 2006, a person who identified himself as

Yousef filed with the New Jersey Division of Revenue, purportedly

in   accordance    with   N.J.S.A.       14A:12-3,    a    "Certificate    of

Dissolution,    Without   a   Meeting     of   Shareholders."      In     that

certificate,    the   registered     agent     for   the   corporation    was

identified in a handwritten entry as Yousef, rather than Huzien.

Youself was also identified on the form as the company's sole

director and sole shareholder.2

     The Certificate of Dissolution represented that Yousef, on

behalf of the company, had taken all necessary actions to dissolve

the corporation pursuant to 
N.J.S.A. 14A:12-3, including obtaining

the signatures or proxies of any other shareholders entitled to

vote.   The document further represented, under penalty of perjury,

that as of the adoption date, the corporation had no assets, had

ceased doing business, did not intend to recommence doing business,

and would not make any distributions of cash or property to

shareholders. Yousef's name was signed with handwritten block

letters.3


2
  At oral argument on the appeal, counsel represented that Yousef
is now living in the country of Jordan. Jordan is not a signatory
to the Hague Convention and thus Yousef may be beyond the range
of effective service of process from the Superior Court.
3
  No one has argued to us that the signature contemplated by the
form and the statutory scheme cannot be in untyped block letters.


                                     3                              A-1013-16T3
       The Certificate of Dissolution recited that the corporation

adopted the purported dissolution action on either January 31,

2006   or   March    31,    2006.4   According    to     Palm,   no    notice    of

dissolution was actually given and no consent was obtained from

the shareholders, in violation of 
N.J.S.A. 14A:12-3.

       As explained in a detailed affidavit from Huzien, Palm did

not    discover     these    irregularities      until     2015       through    an

investigation by a forensic accountant it had retained.                         The

accountant    also    discovered      from     federal     and    state    taxing

authorities that the corporation filed no tax returns for calendar

year 2006, the year of the purported dissolution.

       Attempting to rectify the situation, Palm applied to the

Department of Treasury to revoke the dissolution.                  However, the

Treasury    denied    relief    because      
N.J.S.A.    14A:12-10      literally

requires such a revocation to occur "within 60 days after the

effective time of dissolution[.]"             Palm's request was therefore

deemed time-barred because it was pursued almost a decade after

the Certificate of Dissolution had been filed.



We assume for purposes of our opinion that Yousef prepared and
filed this form, although we recognize the only evidence of that
is his hand-printed name on the form.
4
  The handwritten date is illegible. It could be "January 31" of
2006 (before the stock sale) or "March 31" of that year (after the
stock sale).

                                       4                                  A-1013-16T3
     In a September 21, 2016 letter setting forth its final agency

decision, the Division of Revenue and Enterprise Services ("the

Division") in the Department of Treasury rejected appellant's

contention that the statute's sixty-day timeline should not be

enforced in a situation such as here, where there is alleged fraud,

unauthorized acts, misrepresentations and/or misstatements.

     The Division maintains that even if such nefarious conduct

has occurred, the literal wording of the statute does not allow

the sixty-day time frame – which apparently was one of the shortest

of its kind nationally within corporate dissolution statutes when

the statute was passed — to be relaxed.   The Division asserts that

it is unrealistic and would be administratively too burdensome to

expect staff within the Division to verify the accuracy and

legitimacy of thousands of corporate filings that are made each

year. In addition, the Division raises concerns that if the sixty-

day period were deemed subject to relaxation or equitable tolling

(or deemed to not have accrued in situations of alleged fraud or

impropriety), it is conceivable that members of the public who

check the status of corporate filings may have relied on that

reported status in the meantime to their potential detriment.

     The Division issued a final agency decision on September 21,

2016 denying appellant's request for revocation.     Appellant now

seeks relief from this court.    Appellant asserts that it is in

                                5                           A-1013-16T3
possession of the real property and would like to eliminate any

cloud on the title caused by the 2006 dissolution.       Appellant

further asserts that it would like to preserve the corporation's

name.   Its counsel represents that it is separately attempting to

resolve any tax liability issues for the period from 2006 to the

present.5

     In essence, appellant argues that the purported Certificate

of Dissolution was invalid ab initio under 
N.J.S.A. 14A:12-3

because it lacked appropriate corporate authorization and thus was

improperly filed with the Division.   Taking this logic to the next

step, appellant contends that the sixty-day deadline in the statute

never accrued.   In the alternative, appellant asks that this court

equitably toll the time bar, given the circumstances presented.

     There are no reported or unreported cases in our state

addressing such issues arising under 
N.J.S.A. 14A:12-10.    We are

mindful, as the Division rightly points out, that our Legislature

deliberately intended to adopt a rather short period of time for

dissolution certificates to be revoked.       On the other hand,

statutory deadlines in other exceptional situations sometimes have

been relaxed or not strictly enforced.    See, e.g. Rivera v. Bd.



5
 At our request we received very helpful supplemental briefs from
both counsel prior to the telephonic argument. We appreciate their
efforts.

                                 6                          A-1013-16T3
of Review, 
127 N.J. 578, 586-89 (1992); Cavallaro 556 Valley St.

Corp. v. Div. of Alcoholic Beverage Control, 
351 N.J. Super. 33,

38-40 (App. Div. 2002).

     Based on the limited record before us, we decline to resolve

at this time whether the circumstances here could justify some

form of relief from the sixty-day statutory time bar.           Instead,

we   remand   the   fact-laden   issues   to   the   Division   for     an

administrative hearing, presumably to be referred to the Office

of Administrative Law.6     Among other things, the hearing shall

explore why appellant delayed for nearly a decade in discovering

the alleged irregularity; whether any corporate tax returns or

annual reports were filed in the interim and, if not, why not;

whether there are any other relevant proofs concerning Yousef, his

apparent actions, and his motives for filing the dissolution form;

whether any third parties are affected; and whether a quiet title

action would suffice to remedy the situation.         We also suspect

that counsel who may have represented the parties in the stock

purchase agreement could have relevant non-privileged information

about the surrounding circumstances.




6
  At oral argument both counsel indicated they were amenable to
such an administrative hearing if this panel found a need for
fact-finding and associated credibility determinations.

                                   7                             A-1013-16T3
Vacated   and   remanded.   We   do   not   retain   jurisdiction.




                             8                             A-1013-16T3