Gabrielle Yablonsky v. Director, Division of Taxation

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE TAX COURT COMMITTEE ON OPINIONS

March 23, 2016

Ms. Gabrielle Yablonsky

755 Radley Road

Westfield, New Jersey 07090

Anna Uger, Deputy Attorney General

Division of Law

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 106

Trenton, New Jersey 08625-0106

Re: Gabrielle Yablonsky v. Director, Division of Taxation

Docket No. 015437-2014

Dear Ms. Yablonsky and Deputy Attorney General Uger

This letter constitutes the court s opinion with respect to taxpayer, Gabrielle Yablonsky s ( taxpayer ), motion for summary judgment, and defendant, Director, Division of Taxation s ( Director ), cross-motion for summary judgment. At issue is whether the taxpayer is entitled to a homestead rebate under the Homestead Property Tax Credit Act, N.J.S.A. 54:4-8.57 to -8.75, for the 2007 tax year. For the reasons explained more fully below, the taxpayer s motion and the Director s cross-motion are denied.

Procedural History and Findings of Fact

In accordance with R. 1:7-4(a), the court makes the following findings of fact based upon the certifications and exhibits submitted by the parties.

The taxpayer is a 77 year old resident of the State of New Jersey who submitted a New Jersey homestead rebate application for the 2007 tax year (the 2007 application ). The Director received the taxpayer s 2007 application on November 30, 2008. However, the deadline for submission of homestead rebate applications for the 2007 tax year was October 31, 2008.

By letter dated January 28, 2009, the Director denied the taxpayer s 2007 application as untimely. The letter notified the taxpayer that a statutory exception for late filing may exist. However, in order to qualify for this exception, the taxpayer was required to submit documentation demonstrating that she suffered from a serious medical condition [that] prevented [her] from timely filing the application.

On December 2, 2009, taxpayer s certified public accountant ( CPA ) forwarded a letter to the Director on the taxpayer s behalf. In that letter, the CPA stated that his firm was engaged by taxpayer in 2008 to prepare her 2007 personal income tax returns, and that taxpayer had advised him she previously filed her homestead rebate application for 2007 in a timely fashion. The Director received no further documentation from or on behalf of the taxpayer.

Accordingly, on April 20, 2010, the Director issued a Final Determination letter denying taxpayer s 2007 application ( First Final Determination letter ). The First Final Determination letter explained that the Director did not receive sufficient documentation to dispute the initial denial of taxpayer s 2007 application due to late filing. The letter stated, in part, that

the denial of your 2007 Homestead Rebate has been upheld. This denial will be final unless

Pursuant to N.J.S.A. 54:4-8.66, you request an informal administrative conference by submitting a written letter of protest to Paul Provost, Chief, Conference and Appeals Branch, 50 Barrack Street, PO Box 198, Trenton New Jersey 08695-0198; or

Pursuant to N.J.S.A. 54:48-1, you file a complaint with the Tax Court of New Jersey. The address of the Tax Court is Tax Court of NJ, Tax Court Management Office, Hughes Justice Complex, PO Box 972, Trenton, New Jersey, 08625.

The First Final Determination letter failed to identify the time period within which the taxpayer was required to submit a request for an informal administrative conference or file a complaint. The taxpayer did not submit a letter of protest or file a complaint with the Tax Court in response to the First Final Determination letter.

Several years elapsed without further action and on December 30, 2013, the taxpayer submitted a letter to the Director again raising questions regarding her 2007 application. In response, the Director issued a second Final Determination letter to the taxpayer on January 14, 2014 denying her 2007 application ( Second Final Determination letter ). The Second Final Determination letter stated

We have reviewed your account and found that your 2007 homestead rebate application was received on November 30, 2008, after the filing due date of October 31, 2008. You have failed to submit documentation that clearly substantiates that you filed or attempted to file on time.

This denial will be final unless you apply to the Director of the Division of Taxation for a hearing within ninety (90) days. If you disagree with our findings and would like to apply for a hearing, please read and follow the enclosed Tax Appeal Process.

On or about April 12, 2014, the taxpayer forwarded the Director a letter protesting the denial of her 2007 application (the Protest Notice ). The Protest Notice was stamped RECEIVED by the Director on April 17, 2014.1 By letter dated August 18, 2014, the Director rejected taxpayer s Protest Notice asserting that her appeal period expired on July 19, 2010, 90-days following the First Final Determination letter (the August 18, 2014 letter ). The Director claimed that the Second Final Determination letter erroneously contained appeal rights and maintained that the Director s employees do not possess the authority to extend the 90-day protest/appeal period. The August 18, 2014 letter afforded taxpayer 90-days to appeal the Director s determination regarding the timeliness of the Protest Notice, but not the late filing of the 2007 application.

On November 12, 2014, the taxpayer filed a complaint with the Tax Court challenging the Director s rejection of her Protest Notice and denial of her 2007 application.

On July 9, 2015, the Director forwarded the Taxpayer a letter stating that this is the FINAL DETERMINATION by the Division of Taxation with regard to your protest and/or request for a hearing postmarked April 21, 2014 [sic] and your tax court complaint postmarked December 27, 2014 ( Third Final Determination letter ). The Third Final Determination letter summarized the chronology of events in this matter. In concluding the Third Final Determination letter, the Director states

it has been determined that since you did not file a protest within 90 days of April 20, 2010, this branch has no jurisdiction in this matter and the denial of your 2007 homestead benefit is final.

In the event you are not in accord with the above determination regarding the timeliness of your protest, you may file a complaint with the required fee relative to this determination, which must be received within (90) ninety days from the date of this notice, directly with the Tax Court or New Jersey in accordance with the provisions of N.J.S.A. 54:51A-13 et seq.

On August 28, 2015, the taxpayer filed a motion with the court seeking an [o]rder granting me my Homestead Rebate for year 2007. Following receipt and review of the motion, the court advised taxpayer and Director that it would deem taxpayer s motion, as a motion for summary judgment under R. 4:46-1 and assigned a return date. In support of her motion for summary judgment the taxpayer submitted the following documentation

An August 20, 2013 letter addressed to the taxpayer from the CPA which states that when he left his last place of employment there was uncertainty as to who would be handling your tax issues going forward. The letter further recites that the taxpayer was dealing with some health related issues.

A hospital emergency record, non-invasive vascular laboratory report and admission statement, including discharge order, for the taxpayer for the period from August 29, 2008 to August 30, 2008, detailing a principal diagnosis of vertigo/hypertension.

A bone density report dated August 12, 2003, classifying the taxpayer as Osteoporotic in the areas of her lumbar spine (L1-L4) and femoral neck.

An August 13, 2003 letter from an imaging center to taxpayer s physician enclosing a copy of the August 12, 2003 bone density report.

An undated pamphlet explaining what a bone density test is and the resulting t-score .

A December 16, 2014 letter from the taxpayer s podiatrist stating that the taxpayer was being treated for swollen ankles and was having difficulty walk[ing] downtown and thus, requested that the taxpayer be permitted to use the Access Link for her transportation.

An April 3, 2015 letter from taxpayer s physician stating that the taxpayer was diagnosed with osteoporosis of the lumbar spine and osteopenia of the left forearm in 2003, hypertension, posterior tibial [sic] tendonitis and osteoarthritis of the hips and hospitalized in August 2008 for dizziness.

A disability certificate from Complete Care dated February 25, 2015 stating that the taxpayer was totally incapacitated between February 25, 2015 and February 26, 2015.

A disability certificate from Complete Care dated January 16, 2016 stating that the taxpayer was partially incapacitated (home bound) . The certificate further states marked impairment due to severe degenerative disease that affects the L ankle, R hip back. She is unable to stand/walk without difficulty or increased risk for falls. Joint disease severely affects activity of daily living with diagnostic documentation to support.

A bone density report dated January 15, 2016, classifying taxpayer as having osteoporosis, based on the total spine t-score.

A copy of the CPA s December 2, 2009 letter to the Director.

With the taxpayer s consent, defendant requested three adjournments of the motion return date, which the court granted.

On January 7, 2016, the Director filed a cross-motion for summary judgment seeking dismissal of taxpayer s Complaint. The Director argues that while the taxpayer s medical ailments are serious debilitating conditions, the taxpayer has nonetheless failed to demonstrate good cause to satisfy the statutory exception for late filing under N.J.S.A. 54:4-8.62(a). Thus, the Director submits that because the taxpayer has failed to establish that she qualifies for the statutory exception, her Complaint must be dismissed

The court conducted oral argument in this matter on February 19, 2016.2 Following oral argument, the court afforded the taxpayer and the Director additional time to submit supplementary briefs.

Conclusions of Law

Subject Matter Jurisdiction

The court s analysis begins with a principle that is axiomatic, the Tax Court is a court of limited jurisdiction. N.J.S.A. 2B:13-2. As our Supreme Court recently observed, the narrow jurisdiction of the Tax Court is defined by statute It is against this comprehensive mosaic of procedural safeguards -- one with which continuing strict and unerring compliance must be observed. McMahon v. City of Newark, 195 N.J.526, 529 (2008).

This court s jurisdiction to review any decision, order, finding, assessment or action of the Director is clearly delineated. N.J.S.A. 54:51A-14, provides, in part, that

all complaints shall be filed within 90 days after the date of the action sought to be reviewed.

Our court rules mirror this statutory scheme, requiring 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. R. 8:4-1(b).

A taxpayer s failure to comply with the applicable limitations period is of particular concern in tax matters, given the exigencies of taxation and the administration of . . . government. Millwork Installation, Inc. v. State Department of the Treasury, Div. of Taxation, 25 N.J. Tax 452, 459 (Tax 2010) (quoting F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 424 (1985)). The court s strict adherence to limitation periods should be mandatory and is justified by the need for predictability of revenues by public agencies. William McCullough Transp. Co. v. Div. of Motor Vehicles, Bureau of Motor Carriers, 113 N.J. Super. 353, 360 (App. Div. 1971). In the area of taxation statutes of limitation and limitation periods play a vital role. Legislative policy has consistently followed the salutary principle that proceedings concerning tax assessments and governmental fiscal matters be brought expeditiously within established time periods. L.S. Village, Inc. v. Township of Lawrence, 8 N.J. Tax287 (Law Div. 1985), aff'd,8 N.J. Tax 327 (App. Div. 1986). After expiration of the applicable limitations period, the Director is entitled to assume that an assessment is final, and is not subject to further scrutiny by the court. Commercial Refrigeration & Fixture Co., Inc. v. Director, Div. of Taxation, 2 N.J. Tax 415, 419 (Tax 1981).

Thus, a taxpayer s [f]ailure to file a timely appeal is a fatal jurisdictional defect, which bars consideration of the merits of the action. F.M.C. Stores Co., supra, 100 N.J. at 425 (citing Clairol v. Kingsley, 109 N.J. Super. 22 (App. Div. 1970), aff d, 57 N.J. 199 (1970)). A complaint that is filed even one day late must be dismissed for want of jurisdiction. Mayfair Holding Corp. v. Township of North Bergen, 4 N.J. Tax 38 (Tax 1982). Despite an absence of harm to a defendant, the failure to timely file a complaint within the prescribed 90-day limitations period will deprive the court of jurisdiction. See Lawrenceville Garden Apartments v. Township of Lawrence, 14 N.J. Tax 285 (App. Div. 1994).

Here, in its August 18, 2014 letter rejecting the taxpayer s Protest Notice, the Director asserted that the limitations period expired on July 19, 2010, 90-days following the First Final Determination letter. Thus, the Director had maintained the taxpayer s Protest Notice was untimely. However, absent from the Director s cross-motion was any claim or argument that the taxpayer s Protest Notice was untimely. Instead, the Director s cross-motion focused almost extensively on the taxpayer s alleged failure to satisfy the good cause threshold necessary to qualify for the statutory exception for untimely filing under N.J.S.A. 54:4-8.62(a). During oral argument the court raised the issue of the timeliness of the taxpayer s Protest Notice and the Deputy Attorney General acknowledged that the First Final Determination letter s appeal rights were lacking and contained incorrect appeal rights which is why my moving papers did not include a lack of jurisdiction argument.

The court s review of this matter discloses that the First Final Determination letter failed to reference or set forth the time period within which the taxpayer must file a protest or appeal of the Director s action. Although the First Final Determination references the State Uniform Tax Procedure Law ( SUTPL ), N.J.S.A. 54:48-1, et seq., the letter fails to strictly adhere to the requirements of the SUTPL. Under the SUTPL, the Director is required to set forth in simple and nontechnical terms the following

The procedural and substantive rights of a taxpayer under the State Uniform Procedure Law, R.S. 54:48-1 et seq., including information and notice standards

the procedures and time limits [emphasis added] to protest an assessment or decision of the director;

The procedures and time limits [emphasis added] to appeal a final decision of the director;

[N.J.S.A. 54:48-6(c).]

Moreover, all of the Director s notices under the Homestead Property Tax Credit Act, N.J.S.A. 54:4-8.57 et seq., are required to comport with the provisions of the SUTPL. The Director s notice to applicants irrevocably fixing the amount of the homestead rebate or credit provides that it is [s]ubject to the provisions of the State Uniform Tax Procedure Law, R.S. 54:48-1 et seq. N.J.S.A. 54:4-8.66.

Therefore, the court concludes that the First Final Determination letter was defective as it failed to comply with the provisions of the SUTPL, requiring the Director to set forth the time limitation period to protest an assessment or appeal a final decision of the Director. Thus, the court rejects the position initially asserted by the Director in its August 18, 2014 letter and Third Final Determination letter that the taxpayer s 90-day appeal period expired on July 19, 2010. The Second Final Determination letter is the letter pertinent to the exercise of the taxpayer s right to file a protest, under N.J.S.A. 54:4-8.66, or to file a complaint with the Tax Court, under N.J.S.A. 54:48-1.

Summary Judgment

Summary judgment should be granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the [moving] party is entitled to a judgment or order as a matter of law. Alpha I, Inc. v. Director, Div. of Taxation, 19 N.J. Tax 53, 56 (Tax 2000) (citing R.4:46-2). R.4:46-2 outlines the circumstances under which a motion for summary judgment should be granted

if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.

In Brill v. Guardian Life Insurance Co. of Am., 142 N.J.520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)), our Supreme Court adopted the federal approach to resolving motions for summary judgment, in which the essence of the inquiry [is] whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. In conducting this inquiry, the trial court must engage in a kind of weighing that involves a type of evaluation, analysis and sifting of evidential materials. Ibid. The standard established by our Supreme Court in Brillis as follows

[W]hen deciding a motion for summary judgment under R. 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential material presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.

[Brill, supra, 142 N.J.at 540.]

In considering all of the material evidence before it with which to determine if there is any genuine issue of material fact, the court must view most favorably those items presented to it by the party opposing the motion and all doubts are to be resolved against the movant. Ruvolo v. American Casualty Co., 39 N.J.490, 491 (1963). It is the burden of the moving party to exclude any reasonable doubt as to the existence of any genuine issue of material fact with respect to the claims being asserted. United Advertising Corp. v. Borough of Metuchen, 35 N.J.193, 196 (1961). By its plain language, R.4:46-2 dictates that a court should deny a summary judgment motion only where a party opposing the motion has come forward with evidence that creates a genuine issue as to any material fact challenged. Brill, supra, 142 N.J.at 529. However, if the party opposing the motion for summary judgment merely presents facts which are immaterial or of an insubstantial nature, a mere scintilla, fanciful, frivolous, gauzy or merely suspicious , then a meritorious application for summary judgment should not be defeated. Judson v. Peoples Bank and Trust Co., 17 N.J.67, 75 (1954). If the evidence presented is so one-sided that one party must prevail as a matter of law the trial court should not hesitate to grant summary judgment. Brill, supra, 142 N.J.at 540.

Here, the taxpayer concedes that her 2007 application was filed after the October 31, 2008 deadline. However, the taxpayer asserts that she has satisfied the good cause exceptions for untimely filing under N.J.S.A. 54:4-8.62 of the Homestead Property Tax Credit Act. In support of her claims, the taxpayer presents two arguments: (1) her medical conditions are severe and debilitating, thereby materially interfering with her ability to timely file her 2007 application; and (2) she experienced difficulty in re-locating the CPA prior to the 2007 application deadline due to his change of employment. Thus, the taxpayer argues that she has demonstrated sufficient good cause to satisfy either prong of the exceptions under N.J.S.A. 54:4-8.62(a).

In opposition to taxpayer s motion and in support of its cross-motion for summary judgment, the Director submits that the taxpayer has not presented credible evidence sufficient to warrant application of the good cause exceptions under the statute. Therefore, the Director maintains that the taxpayer s Complaint should be dismissed. Alternatively, the Director asserts that genuine issues as to material facts alleged by the taxpayer exist requiring denial of her motion. Thus, a trial must be conducted, documentary evidence presented and testimony taken, subject to cross-examination and presentation of rebuttal evidence.

Under N.J.S.A. 54:4-8.62(a) of the Homestead Property Tax Credit Act, an applicant will be accorded a good cause exception from timely filing if the applicant has provided either: (i) medical evidence that the applicant was unable to file the application by the date prescribed due to illness or hospitalization, or(ii) credible evidence that the applicant attempted to file a timely application. Specifically, N.J.S.A. 54:4-8.62(a), states, in part, that

The director, shall for good cause shown extend the time of any applicant to file a claim for a homestead rebate or credit for a reasonable period . . . in order to establish good cause to extend the time of any applicant to file a claim for a homestead rebate or credit the applicant shall provide to the director either medical evidence, such as a doctor s certification, that the claimant was unable to file the claim by the date prescribed by the director because of illness or hospitalization, or evidence that the applicant attempted to file a timely application.

[N.J.S.A. 54:4-8.62(a).]

Medical evidence exception

The determination of whether good cause has been presented must be evaluated on a case-by-case basis. Hovland v. Director, Div. of Taxation, 204 N.J. Super. 595, 598-600 (App. Div. 1985). Our courts have concluded that the term good cause must be liberally construed in order to further the tax relief objectives of the statute. Bonda v. Director, Div. of Taxation, 22 N.J. Tax 77, 81 (Tax 2004). In considering whether the taxpayer has met the good cause exception, the courts in Hovlandand Bonda have applied a totality of the circumstances approach.

In Hovland, supra, the taxpayer had been hospitalized with spinal cancer for three months prior to the due date of the homestead rebate application. Upon returning home from the hospital, and while confined to his bed, the taxpayer completed the homestead rebate application. The taxpayer s application was received by the Director four days after the filing deadline. In rejecting the Director s argument that application of the good cause exception requires total incapacitation, the Appellate Division observed that the very essence of [good cause] is its ability to afford relief in exceptional situations. 204 N.J. Super. at 600. The court observed that a fundamental purpose to be served by the Homestead Rebate Act was to afford taxpayers property tax relief and adoption of an unduly rigid standard fails to comport with those legislative goals. Id.at 598. The severe and incapacitating nature of the taxpayer s illness, coupled with his good faith attempt to comply with the statutory time period , establishes good cause thereby excusing the taxpayer from compliance with the filing deadline. Id. at 600.

In Bonda, supra, the taxpayer suffered from multiple chronic medical conditions including a chronic thyroid condition, bipolar disorder, hyper-somnolence, narcolepsy and signs of low-level myocardial injury. 22 N.J. Tax at 79. Although the taxpayer suffered from serious maladies , the court concluded that the taxpayer produced insufficient evidence demonstrating an inability to comply with the filing deadlines. Id. at 82. The court explained that good cause extensions must not be abused and must only be reserved for those that can show a serious need. Ibid. Thus, the good cause exception is reserved for those circumstances when a taxpayer has demonstrated they are medically unable to file the application in a timely manner. Ibid.

Here, the taxpayer argues that her osteoporosis and vertigo, affected her ability to carry out [her] normal day to day activities , thereby precluding her from timely submitting her 2007 application. The taxpayer further asserts that, independent of her medical conditions, she retained a tax preparation firm to file my taxes and the rebate form in the summer of 2008 . However, in the fall of 2008 the tax preparation firm apparently stated that they did not wish to do my taxes. Thereafter, the taxpayer attempted to retain the CPA to prepare her tax returns, but her initial attempts proved unsuccessful, as the CPA had changed jobs and his former employer did not know his whereabouts.

In support of her claims, the taxpayer identifies three unpublished court decisions that she argues provide clarity of the definition of good cause .3 However, there are no distinct or unique legal theories offered by the courts in either Heckers v. Director, Div. of Taxation, 2009 N.J. Super. Unpub. Lexis 2956 (App. Div. 2009) or Cahill v. Director, Div. of Taxation, 2015 N.J. Tax Unpub. Lexis 88 (Tax 2015) that were not addressed in Bonda, supra, 22 N.J. Tax77 and Hovland,supra, 204 N.J. Super. 595. The taxpayer also relies upon Kagan v. Director, Div. of Taxation, 2009 N.J. Super. Unpub. Lexis 2978, which conferred the good cause exception upon a caregiver spouse, responsible for the administration of the daily needs of his spouse incapacitated by a stroke. The court observed that the taxpayer s enduring commitment to provide daily care and support for his disabled spouse rendered him unable to focus his attention on non-recurring items. Although Kagan does expand the scope of the good cause exception, it is inapposite because the factual premise upon which it is constructed materially deviates from the facts in the present matter. Here, the taxpayer was not responsible for providing around-the-clock care for a permanently incapacitated spouse, nor has the taxpayer presented any evidence that her medical ailments restricted or prohibited her from addressing non-recurring items. Thus, the court concludes that a further in-depth discussion of the three unpublished cases relied upon by taxpayer is unwarranted.

In the present matter, the taxpayer has submitted 10 medical related documents chronicling her health condition since 2003. The court s review of those documents reveals that the taxpayer was diagnosed as osteoporotic in her lumbar spine and osteopenic in her femoral neck, left hip and left forearm in 2003. The medical records disclose that the taxpayer s osteoporosis caused an increased risk of bone fracture and limited her ability to stand/walk without difficulty , placing her at an increased risk for falls . However, absent from taxpayer s submission was any evidence which clearly delineates how her osteoporosis prevented or precluded her from timely filing her 2007 application.

Moreover, taxpayer s medical records establish that she was admitted to the hospital on August 29, 2008 and discharged on August 30, 2008, having been diagnosed with acute vertigo . However, none of the medical records, correspondence and reports submitted to the court reveal the length of time this condition persisted following her discharge from the hospital, or how this condition thwarted or interfered with the taxpayer s ability to timely file her 2007 application.

The balance of the medical evidence submitted by the taxpayer comprised of reports, records and disability certifications prepared several years after the 2007 application deadline. The first disability certificate , dated February 25, 2015, states that the taxpayer was totally incapacitated , however the period of incapacity was limited to February 25, 2015 to February 26, 2015, approximately six years following the 2007 application deadline. The second disability certificate , dated January 16, 2016, states that taxpayer was partially incapacitated (home bound) but provides no period of incapacity. While these disability certificates support taxpayer s diagnoses and medical conditions approximately six to eight years after the 2007 application deadline, they provide no meaningful insight into the taxpayer s illnesses on or immediately preceding the filing deadline.

Based upon the medical evidence submitted, the court readily observes that the taxpayer was diagnosed in 2003 with osteoporosis, a long-term chronic condition characterized by a decrease in bone mass producing porosity and fragility.4 Moreover, in August 2008, the taxpayer was diagnosed with acute vertigo , a short-term condition characterized by dizziness.5 These conditions may, or may not, have contributed to or affected the taxpayer s ability to timely complete her 2007 application. However, the taxpayer has presented insufficient evidence in support of her motion for summary judgment to enable the court to conclude that she was incapacitated or otherwise unable to file her 2007 application due to illness or hospitalization as of the filing deadline. N.J.S.A. 54:4-8.62(a). Stated simply, because the taxpayer has not demonstrated that her medical ailments proximately resulted in an inability to comply with the filing deadlines , the taxpayer s motion for summary judgment on this issue must be denied. Bonda, supra, 22 N.J. Taxat 82.

The Director asserts in its cross-motion for summary judgment that the taxpayer s medical ailments are chronic in nature and therefore, are not conditions which resulted in the taxpayer being incapacitated as of the 2007 application filing deadline. See Bonda. supra, 22 N.J. Tax at 79. Thus, the Director urges the court to reject taxpayer s application for a good cause exception and to dismiss the taxpayer s Complaint.

However, genuine issues of material fact exist regarding the impact and influence that the taxpayer s medical ailments played in her ability to timely file the 2007 application. Consideration of the good cause exception requires the court to conduct a case-by-case analysis and examine the totality of the circumstances surrounding the taxpayer s alleged inability to timely file her homestead rebate application. Therefore, at this time it would be premature for the court to conclude that the taxpayer s medical ailments did not constitute a disability materially impeding her ability to timely file her 2007 application. Accordingly, the Director s cross-motion for summary judgment must be denied.

Evidence applicant attempted to timely file a homestead rebate application

The taxpayer also contends that she has satisfied the second prong of the good cause exception under N.J.S.A. 54:4-8.62(a). This component of the good cause exception requires the presentation of credible evidence that the taxpayer attempted to file a timely application. N.J.S.A.54:4-8.62(a). A review of applicable precedent reveals no reported cases addressing this element of the good cause exception.

In support of her argument, the taxpayer maintains she retained a tax preparation firm to file my taxes and the rebate form in the summer of 2008 . However, after several months of inactivity the tax preparation firm advised the taxpayer that they did not wish to do my taxes. Thereafter, in the fall of 2008 the taxpayer attempted to contact the CPA to prepare her 2007 taxes, however initial attempts proved unsuccessful, as the CPA had apparently changed jobs and his former employer reported that they did not know his whereabouts.

Attached to the taxpayer s motion are two letters from the CPA. The first letter, dated December 2, 2009, states that the taxpayer engaged the use of a tax preparation firm to prepare her 2007 taxes and [a]fter a number of months of inactivity she took back her papers and engaged me to prepare her 2007 tax return. According to the CPA, when he was engaged to prepare the taxpayer s 2007 taxes, the taxpayer indicated that she had already submitted her homestead rebate application using estimated figures. The letter further erroneously states that [a]pparently, the Division of Taxation has no record of the filing of the taxpayer s 2007 application and seeks assistance in helping the taxpayer obtain the homestead rebate that she was entitled to for the 2007 tax year.

The second letter, dated August 20, 2013, concludes that the taxpayer was entitled to receive those [homestead] rebates without any factual or legal support for that conclusion. The letter vaguely references that the taxpayer was dealing with some health related issues , but provides no evidence that the taxpayer s inability to file her 2007 application was proximately caused by those issues. Finally, the letter suggests that some confusion arose with respect to the preparation of the taxpayer s 2007 income tax returns when the CPA left his previous employer taxpayer, however, those issues were resolved once the taxpayer located the CPA.

Based upon the evidence presented, it is entirely unclear what steps, if any, the taxpayer pursued to attempt to file her 2007 application in a timely manner. Although the taxpayer maintains that she retained a tax preparation firm to prepare her 2007 tax returns, the record is devoid of any evidence detailing the scope of its representation and whether the taxpayer timely supplied the firm with the documents reasonably necessary to enable it to undertake preparation of her 2007 tax returns. Moreover, the court is not convinced that the taxpayer s isolated action of hiring of a paid tax preparation firm demonstrates that the taxpayer attempted to file her 2007 application in a timely manner. Our Legislature has charged homestead rebate applicants with an unambiguous and precisely defined duty to annually file rebate applications. No homestead rebate or credit shall be allowed pursuant to this act except upon annual application therefor [emphasis added], in any manner, upon any form, and in any format, whether in writing or otherwise, as shall be prescribed by the director. N.J.S.A. 54:4-8.62(a). Moreover, the director is authorized to extend the time of any applicant to file a claim for a homestead rebate or credit for a reasonable period. Ibid. In granting the Director this authority, our Legislature intended to provide a measure of flexibility; however, once the Director makes a final determination as to the filing deadline, a taxpayer must nonetheless comply. Horrobin v. Director, Div. of Taxation, 172 N.J. Super. 173, 181 (Tax 1979).

Moreover, the retention of a tax preparation firm or certified public accountant to attend to the matter, as an agent of the applicant, does not relieve the applicant of his or her duty to comply with the statute. A taxpayer s reliance on a tax professional is not uncommon, however, that reliance cannot function as a substitute for compliance with an unambiguous statute. United States v. Boyle, 469 U.S. 241, 251, 105 S. Ct. 687, 693, 83 L. Ed. 2d 622, 631 (1985). A strict adherence to statutory limitation periods is essential in tax matters. This is fundamentally necessary to provide a finality and predictability of revenues to the state. F.M.C. Stores Co., supra, 100 N.J. at 424. Our Legislature s objectives in establishing filing deadlines and limitation periods was to create a procedural orderliness that would be not only equitable to the taxpayer, but also administratively convenient to the Director. Horrobin, supra, 172 N.J. Super. at 181.

Here, the taxpayer has offered insufficient evidence in support of her motion for summary judgment to enable the court to conclude she attempted to file the 2007 application in a timely manner and therefore, is entitled to the good cause exception under N.J.S.A. 54:4-8.62(a). As stated in Hovland, the very essence of [good cause] is its ability to afford relief in exceptional situations. 204 N.J. Super. at 600. The alleged difficulty encountered by taxpayer with the tax preparation firm and in locating her CPA does not rise to the level of evidence sufficient to establish that the taxpayer actually attempted to file a timely application. Engaging a tax preparation firm to prepare income tax returns is not synonymous with attempting to file a homestead rebate application in a timely manner. Were this true, any prospective homestead rebate applicant seeking to qualify for the good cause exception could, in theory, contact a tax professional on the eve of the filing deadline to qualify for the untimely filing exception. This would have the effect of rendering the attempted to file element of the good cause exception meaningless.

Drawing all reasonable inferences from the evidence presented and resolving all ambiguities in favor of the non-moving party, the court concludes that genuine issues of material fact exist regarding the taxpayer s attempted efforts to timely file her application. Thus, the court denies taxpayer s motion for summary judgment on this issue.

Conclusion

The court concludes that genuine issues of material fact exist regarding the impact taxpayer s medical ailments had upon the taxpayer as of the 2007 application deadline and the efforts undertaken by taxpayer to complete a timely filing. Accordingly, the court denies taxpayer s motion for summary judgment and the Director s cross-motion for summary judgment.

Very truly yours,

/s/Hon. Joshua D. Novin, J.T.C.

1 The Director offered no evidence revealing the date taxpayer received the Second Final Determination letter, nor raised as a defense the timeliness of the taxpayer s Protest Notice. See Liapakis v. State Department of Treasury, Div. of Taxation, 363 N.J. Super. 96, 99 (App. Div. 2003), certif. denied 179 N.J. 369 (2004) (concluding that the 90-day limitations period shall be calculated from the date of service of the decision or notice of the action taken.)

2 Pursuant to R. 1:6-2(e), the court permitted the taxpayer and Director to participate in oral argument of this motion telephonically.

3 [N]o unpublished opinion shall constitute precedent or be binding upon any court. R. 1:36-3, see also Trinity Cemetery Assoc. v. Township of Wall, 170 N.J. 39, 48 (2001) (concluding that an unreported decision serves no precedential value and cannot reliably be considered part of our common law).

4 Osteoporsis. Merriam-Webster.com. Merriam-Webster, n.d. Web. 18 Mar. 2016

5 Vertigo. Merriam-Webster.com. Merriam-Webster, n.d. Web. 18 Mar. 2016

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