Adamar of New Jersey t/a Tropicana Casino and Resort v. Director, Division of Taxation

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Adamar of New Jersey t/a Tropicana Casino and Resort v. Director, Division of Taxation (A-36-00)


(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Braithwaite's opinion below.)
 
Argued February 14, 2001 -- Decided April 3, 2001

PER CURIAM

This is a companion appeal to GNOC, Corp. v. Director, Division of Taxation, also decided today. Like that matter, the issue in this appeal is whether the Director of the Division of Taxation ( Director ) properly assessed a sales and use tax on Adamar, which operates a casino under the name of Tropicana, for the purchase of alcoholic and non-alcoholic beverages, which Adamar then provided to its casino patrons on a complimentary basis.

As was the case in GNOC, this appeal was based on the Director's determination regarding the applicability of sales and use tax to both complimentary alcoholic and non-alcoholic beverages provided to casino patrons. Following the Director's determination, Adamar filed a complaint in the Tax Court seeking a refund of some $504,773.88 for use taxes it had paid on the beverages for the period July 1, 1990 through November 30, 1995. The Tax Court dismissed the complaint on the Director's motion for summary judgment. Adamar appealed, raising the same issues in respect of alcoholic beverages as had GNOC.

The Appellate Division rejected Adamar's claims in respect of alcoholic beverages for the same reasons expressed in its decision in GNOC, without further discussion. As to Adamar's claims in respect of non-alcoholic beverages, and citing to its decision in Boardwalk Regency Corp. v. Director, Division of Taxation, the Appellate Division determined that there was a factual dispute relating to the scope of the closing agreements between the Director and Adamar, which precluded summary judgment. Thus, the Appellate Division reversed the grant of summary judgment to the Director and remanded the issue in respect of non-alcoholic beverages to the trial court for resolution of the factual dispute regarding what was settled by the closing agreements.

The Supreme Court granted Adamar's petition for certification.

HELD: As modified, the judgment of the Appellate Division concerning taxation of complimentary alcoholic beverages is affirmed substantially for the reasons expressed in Judge Braithwaite's opinion below, as supplemented by the Supreme Court's opinion in GNOC v. Director, Division of Taxation; the judgment of the Appellate Division to remand to the Tax Court for further proceedings the issue concerning taxation of non-alcoholic beverages is affirmed, there being a factual issue as to the scope of the closing agreements into which Adamar and the Director had entered.

As modified, the judgment of the Appellate Division granting the Director summary judgment on the issue of alcoholic beverages and remanding to the Tax Court for further proceedings on the issue of non-alcoholic beverages is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in this PER CURIAM opinion.

SUPREME COURT OF NEW JERSEY
A- 36 September Term 2000

ADAMAR OF NEW JERSEY t/a TROPICANA CASINO AND RESORT (formerly t/a TROPWORLD CASINO & ENTERTAINMENT RESORT),

Plaintiff-Appellant,

v.

DIRECTOR, DIVISION OF TAXATION,

Defendant-Respondent.

Argued February 14, 2001 -- Decided April 3, 2001

On certification to the Superior Court, Appellate Division, whose opinion is reported at 328 N.J. Super. 481 (2000).

Janyce M. Wilson argued the cause for appellant (Graham, Curtin & Sheridan, attorneys; Ms. Wilson and Kent L. Schwarz, on the briefs).

Marlene G. Brown, Deputy Attorney General, argued the cause for respondent (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Mary C. Jacobson, Former Assistant Attorney General, of counsel).

John K. Antholis submitted a brief on behalf of amici curiae, Resorts International Hotel, Inc. and Great Bay Hotel and Casino t/a Sands Hotel and Casino (Antholis & Courtney, attorneys; Mr. Antholis and Mark G. Yates, on the brief).

PER CURIAM

We modify and affirm the judgment of the Appellate Division concerning taxation of complimentary alcoholic beverages substantially for the reasons explained in Judge Braithwaite's opinion, Adamar v. Director, Div. of Taxation, 328 N.J. Super. 481 (App. Div. 2000), as supplemented by this Court's opinion in GNOC v. Director, Div. of Taxation, ___ N.J. ___ (2001), also filed today. We also affirm the Appellate Division's determination to remand to the Tax Court for further proceedings the issue concerning taxation of non-alcoholic beverages.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI join in this opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-36

SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

ADAMAR OF NEW JERSEY t/a
TROPICANA CASINO AND RESORT
(formerly t/a TROPWORLD
CASINO & ENTERTAINMENT
RESORT),

Plaintiff-Appellant,

v.

DIRECTOR, DIVISION OF
TAXATION,

Defendant-Respondent.

DECIDED April 3, 2001 Chief Justice Poritz

PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE STEIN X JUSTICE COLEMAN X JUSTICE LONG X JUSTICE VERNIERO X JUSTICE LaVECCHIA X JUSTICE ZAZZALI X TOTALS
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