SCOTTY PINE, INC v. DIRECTOR, DIVISION OF TAXATION
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3837-16T2
SCOTTY PINE, INC.,
Plaintiff-Appellant,
v.
DIRECTOR, DIVISION OF TAXATION,
Defendant-Respondent.
___________________________________
Submitted September 17, 2018 – Decided October 12, 2018
Before Judges Gooden Brown and Rose.
On appeal from the Tax Court of New Jersey, Docket
No. 9486-2015.
Richard M. Conley, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Ramanjit K. Chawla, Deputy
Attorney General, on the brief.)
PER CURIAM
Plaintiff Scotty Pine, Inc. appeals from a March 30, 2017 Tax Court order
denying its motion for reconsideration of a prior order 1 dismissing its complaint,
which protested certain taxes and fees. We affirm.
The crux of this appeal is whether plaintiff proved its tax protest letter
was duly mailed, preserving its right to challenge defendant Director, Division
of Taxation's audit and assessment of $317,058 for unpaid sales and use taxes,
litter control fees, penalties and interest for the period from April 1, 2008 to
March 31, 2012. Defendant's Conference and Appeals Branch (CAB) denied
the protest as untimely because plaintiff's request for a hearing was not
"postmarked (or otherwise submitted for courier delivery)" within ninety days
of CAB's June 18, 2014 Notice of Assessment Related to Final Audit
Determination.
Thereafter, plaintiff filed a complaint with the Tax Court challenging
defendant's determination, claiming it "legitimately tried" to timely file its
1
Although plaintiff's notice of appeal did not specifically designate the prior
order generating its reconsideration motion, contrary to Rule 2:5-1(f)(3), we
consider the underlying order because the trial judge referenced his prior
decision in his written opinion accompanying the May 30, 2017 order. See N.
Jersey Neurological Assocs., PA ex rel. Gil v. Clarendon Nat. Ins. Co., 401 N.J.
Super 186, 196 (App. Div. 2008) (permitting argument concerning an order not
specified in the notice of appeal where the earlier issue continued to be raised
in the present appeal).
A-3837-16T2
2
protest letter. Defendant moved to dismiss the complaint for lack of subject
matter jurisdiction. Finding disputed issues of fact precluded summary
judgment, Judge Mark Cimino denied the motion, but scheduled an evidentiary
hearing.
We derive the pertinent facts from the evidence adduced at the motion
hearing. Walter Wilson, the attorney 2 who prepared the protest letter, was the
sole witness to testify at the hearing. The court admitted into evidence Wilson's
certification and a copy of the protest letter dated July 23, 2014.
In sum, following the death of plaintiff's tax attorney, Wilson agreed to
file the protest, although he was plaintiff's land use attorney and inexperienced
in tax appeals. On July 23, 2014, while vacationing at the Jersey Shore, Wilson
completed the protest letter on his laptop computer, printed it at the local library,
and then mailed it to CAB from the Normandy Beach branch of the U.S. Post
Office. Wilson sent the letter via regular mail in a standard, letter -sized
envelope. He recalled purchasing three stamps, placing them on the envelope,
and placing the envelope in the mail slot. Wilson did not retain a receipt for the
postage. He did not photocopy the letter, but retained a copy on his laptop.
2
At the time of the hearing Wilson was temporarily suspended from the practice
of law for reasons unrelated to the present matter.
A-3837-16T2
3
Wilson did not recall following up with defendant regarding the status of the
protest prior to CAB's September 17, 2014 deadline.
Following the hearing on June 15, 2016, Judge Cimino granted
defendant's motion to dismiss plaintiff's complaint in a cogent oral decision.
Citing the "postmark rule," 3 and the regulations pertaining to mailing set forth
in N.J.A.C. 18:2-4.1 -4.13, the judge found plaintiff failed to prove its protest
letter was mailed. In doing so, the judge found the postmark rule "appeared to
supplant the common law mailbox rule that provides . . . if a document is
3 N.J.S.A. 54:49-3.1(a). Pertinent to this appeal, the postmark rule provides:
Except as another payment method may be specified by
law, a . . . protest, . . . required to be filed within a
prescribed period, or on or before a prescribed date,
under the provisions of any State tax that, after the
period or the date, is delivered by United States mail to
the director, bureau, office, officer or person with
which or with whom the document is required to be
filed shall be deemed to be delivered on the date of the
United States postmark stamped on the envelope. . . . If
any document is sent by United States registered or
certified mail, such registration or certification shall be
prima facie evidence that the document was delivered
to the director, bureau, office, officer or person to
which or to whom addressed.
A-3837-16T2
4
properly mailed, the [c]ourt will presume the United States Postal Service
delivered the document to the addressee."
Because plaintiff was unable to produce "proof of a certified mailing[,
which] is deemed to be prima facie evidence of such mailing," Judge Cimino
dismissed the complaint without assessing Wilson's credibility. At the
conclusion of the hearing, however, "[g]iven that the postmark rule was not
raised by either party," the judge invited plaintiff to file "a motion for
reconsideration if authority was discovered indicating that the postma rk rule is
not the exclusive means of establishing delivery of a document to the Director."
Plaintiff thereafter filed a motion for reconsideration, essentially
reiterating its previous argument without citing additional authority. In a
thorough and well-reasoned written opinion accompanying his order, Judge
Cimino reconsidered plaintiff's argument, but again denied its motion. In doing
so, the judge analyzed, at great length, the legislative history of the postmark
rule, comparing it to its federal counterpart4 and the federal body of case law
interpreting the parallel federal statute.
Turning to New Jersey's postmark rule, the judge observed, "The statute
or the enactment on its face reveals no intent that the common law rules
4
26 U.S.C. § 7502.
A-3837-16T2
5
regarding delivery are supplanted." Rather, the judge "determine[d] that
satisfaction of the postmark rule is not the only way in which a taxpayer can
establish delivery of a document to be filed. The common law mailbox rule also
remains as a viable method of establishing delivery." Citing our Supreme
Court's decision in SSI Medical Services v. State of New Jersey, 146 N.J. 614
(1996), Judge Cimino also "recognized a presumption that mail properly
addressed, stamped and posted was received by the party to whom it was
addressed.” Id. at 621.
Applying the law to the facts of the present case, Judge Cimino made the
following findings:
Mr. Wilson was licensed as an attorney in New Jersey
for a number of years. There is simply no explanation
as to why he did not send the document by certified
mail. He allegedly took the item to the post office
where presumably certified cards and return receipts
would be available. Pursuant to the mailbox rule,
having a receipt from the Post Office demonstrating
that he sent the document by certified mail would have
plainly been prima facie evidence that the document
was delivered. Moreover, there was not any testimony
indicating that Mr. Wilson used anything but a plain
white envelope. What was especially disconcerting to
the court is the fact that Mr. Wilson testified he was
only on vacation for a week in late July and that the
protest was not due until the end of September. It
simply does not make sense as to why Mr. Wilson
would have been working during his vacation when he
had some eight weeks remaining to get the protest to
A-3837-16T2
6
the Director. Obviously, if the notice had been mailed
from his office, there would have been not only his
testimony, but the testimony of his staff establishing the
standard mailing procedures for his office. Rather, he
allegedly engaged in this aberrant preparation and
mailing procedure in which he was printing law office
documents at public libraries and then going to [the]
post office and buying stamps. Overall, the court has
had the opportunity to review Mr. Wilson’s testimony
in this case as well as his demeanor and such and finds
that his testimony is simply not credible.
Notwithstanding his credibility assessment, Judge Cimino indicated he
would have dismissed the complaint "even if [he] had found [Wilson]
credible[",] citing our decision in Luiz v. Sanjurjo, 335 N.J. Super. 279, 281
(App. Div. 2000) (holding "an attorney owes a duty to monitor whether a mailed
document has actually been received and filed . . . an easy task, particularly in
the age of computers."). Thus, the judge found, "Here, there was some eight
weeks to go and there is simply not any evidence that Mr. Wilson took steps to
remediate the failure of the protest to reach its destination regardless of the
reason or fault." This appeal followed.
In its single-point merits brief, plaintiff raises the following argument for
our consideration:
THE COURT SHOULD REVERSE ITS DECISION
BECAUSE WALTER WILSON TESTIFIED
CREDIBLY THAT HE ADDRESED THE PROTEST
LETTER TO THE DIRECTOR AT THE DIRECTOR'S
A-3837-16T2
7
APPROPRIATE ADDRESS AND THAT HE MAILED
THE NOTICE IN A TIMELY MANNER, WITH
PROPER POSTAGE, IN THE POST OFFICE
BUILDING, WHICH CREATES AN
UNCHALLENGED LEGAL PRESUMPTION THAT
THE NOTICE WAS DELIVERED, OR, IN THE
ALTERNATIVE, THE COURT SHOULD HAVE
TOLLED THE FILING DEADLINE FOR THE
PROTEST SO THE TAXPAYER CAN HAVE THE
TAX ASSESSMENTS REVIEWED.
We will not set aside a trial court's order on a motion for reconsideration
unless it is shown to be a mistaken exercise of discretion. Granata v. Broderick,
446 N.J. Super. 449, 468 (App. Div. 2016), aff'd., 231 N.J. 135 (2017) (citing
Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002)).
Reconsideration is "a matter within the sound discretion of the [c]ourt, to be
exercised in the interest of justice[.]" Palombi v. Palombi, 414 N.J. Super. 274,
288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div. 1990)). Governed by Rule 4:49-2, reconsideration is appropriate for a
"narrow corridor" of cases in which either the court's decision was made upon a
"palpably incorrect or irrational basis," or where "it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
competent evidence." Ibid. (quoting D'Atria, 242 N.J. Super. at 401).
Further, "The scope of appellate review of a trial court's fact-finding
function is limited." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169
A-3837-16T2
8
(2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "[W]e do not
disturb the factual findings and legal conclusions of the trial judge unless we are
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant[,] and reasonably credible evidence as to offend the
interests of justice." Ibid. (quoting In re Trust Created By Agreement Dated
Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008) (internal quotation
marks omitted)). "Deference is especially appropriate when the evidence is
largely testimonial and involves questions of credibility." Ibid. (quoting Cesare,
154 N.J. at 411-12). "Because a trial court hears the case, sees and observes the
witnesses, and hears them testify, it has a better perspective than a reviewing
court in evaluating the veracity of witnesses." Ibid. However, we owe no
deference to a trial court's interpretation of the law, and review issues of law de
novo. State v. Parker, 212 N.J. 269, 278 (2012); Mountain Hill, LLC v. Twp.
Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008).
Applying these well-established standards of review here, we discern no
basis to set aside the court's order dismissing plaintiff's complaint. Our review
of the record convinces us that plaintiff's arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E). We affirm for
the reasons set forth in Judge Cimino's comprehensive written opinion, which is
A-3837-16T2
9
supported by substantial credible evidence in the record. We add only the
following brief remarks.
Having had the opportunity to observe Wilson, Judge Cimino determined
he was not credible. That assessment is consistent with the evidence that an
attorney with his experience should have either: (1) sent the protest letter by
certified mail, thereby satisfying the postmark rule; or (2) utilized the stand ard
mailing procedures of his office, which could have been corroborated by his
staff, thereby satisfying the mailbox rule. At the very least, he should have
retained a receipt for postage. Nonetheless, as Judge Cimino noted, it was
incumbent upon plaintiff to confirm that its protest actually was timely filed.
Affirmed.
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