1 

## SUPERIOR COURT of the
STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Resident Judge 38 The Green Dover, DE 19901 Telephone : (302)

- 735

- 2111

September 2 9 , 2021

Michael B. Cooksey

, DAG Mr. Kenneth Odoemene Delaware Department of Justice 160 Stoney Drive
820 N. French Street, 6 th Floor Dover, DE 19904 Wilmington, DE 1980 1

Submitted: September 8, 2021
Decided: September 2 9 , 2021

RE: State of Delaware Division of Revenue vs . Kenneth Odoemene
K21J

- 00844 NEP

Mr. Cooksey and Mr. Odoemene:

The Director of the Delaware Division of Revenue (hereinafter the “Director”

or the “Division”) filed a certificate of assessment in Superior Court

. In it, the

Division entered judgment against Mr. Odoemene for unpaid taxes, a penalty, and

interest. Presently, Mr. Odoemene moves the Court to strike the certificate . In

essence, he seeks to collaterally vacate the judgment. This letter provides the

Court’s reasoning and decision as to why it cannot.

Background and Arguments of the Parties

On April 19, 2021, the Division filed the certificate of assessment at issue.

The assessment, which becomes a judgment, was in the amount of $1,665.97

. It2

represe nts the amount of his unpaid 2018 personal income tax, a penalty for the

unpaid tax, and interest.

Mr. Odoemene contends that he does not owe the penalty and interest

. H e

believes that the Division should have waived them because of the Covid

- 19

pandemi c . He also alleges that he did not receive a notice of proposed assessment

. That, he contends, left him no opportunity to challenge it before it became final

.
The Division co unters that it sent Mr. Odoemene the notice of assessment on

December 8, 2020

, and that he did not protest it. It relies upon 30 Del. C. § 544

which provides that a proposed assessment becomes final if not challenged within

sixty days from when the Division mails the notice. Furthermore , the Division has

produce d documentation that it sent the notice to Mr. Odoemene by certified mail

.
The Division has also provide d documentation showing that the Postal Service

delivered the letter to Mr. Odoemene’s mailbox on a date and time certain.

Relevant Statutes

The Delaware Division of Revenue’s authority to certify an assessment

against a taxpayer flows from several provisions in Title 30 of the Delaware Code.

The statutory process starts with the requirements set forth in 30 Del. C. § 521.

Namely, that section provides that the Division must send the taxpayer notice of the

amount of past

- due taxes, interest, and penalties that it alleges are due. More

specifically, the statute provides that the notice must : “s e t forth the amount and the

r eason for the proposed assessment . . .

. If the amount of the proposed assessment
exceeds the applicable threshold of $1,000, such notice shall be sent by certified or

registered mail. 1 ”

After sixty days without a protest, the proposed assessment become s final

with no right to appeal

. 2 If, on the other hand, the taxpayer files a protest, the

1 30 Del. C. § 521(c)

. 2 Id. at § 52 2.3

Director must reconsider the matter

. 3 After the Director considers the taxpayer’s

arguments, she must provide the taxpayer with a final decision

. 4 That decision then

becomes final unless the taxpayer appeals the matter to the Tax Appeal Board within

sixty days. 5 In t he event of an appeal , the Tax Appeal Board must hold a hearing

and issue a decision regarding whether the proposed assessment is a ccurate. 6

Finally , e ither the Director or the taxpayer may appeal the Tax Appeal Board’s

final decision to the Superior Court within thirty days. 7 If neither party files an

appeal, the Tax Appeal Board’s decision becomes final

. 8

Motion to Strike Because of Allegedly Improper Penalties and Interest

Mr. Odoemene contends that he does not owe the penalty and interest in the

assessment

. He did not, however, challenge those amounts through the

administrative process. As a result, t he Superior Court cannot examine the merits of

his claim . It cannot do so for two reasons.

First , the Court has no jurisdiction to collaterally vacate the judgment. Here,

when the administrative process concludes (assuming it concludes favorably to t he

Division), the Prothonotary must accept the filing and it becomes a judgment of

record

. 9 In other words, the certificate becomes a transferred judgment in the

amount of the proposed assessment unless the taxpayer prevails in the administrative

3 Id. at § 523

. 4 See i d. at § 524 (providing that “written notice of the Director’s determination. . . shall be mailed to the taxpayer by certified or registered mail ” ).

5 30 Del. C . § 525.

6 Id. at § 544

. The sole exception to this step in the administrative process is removal of a n action to Superior Court after an appeal to the Tax Appeal Board. Id. at § 333. Bypassing the Tax Appeal Board is permitted only for (1) matters in controversy exceeding $50,000, (2) upon request of the taxpayer or the Division of Revenue, and (3) with approval of the Tax Appeal Board. Id. None of the three requirements are satisfied in this instance.

7 Id. at § 331 (a)

. 8 Id.

9 Id.4

proces s referenced above

. 10 Once the Division file s the certificate, the Superior

Court lacks jurisdiction to consider collateral challenges to the judgment unless it is

void. 11

Second , the exhaustion of administrative remedies doctrine makes it

inappropriate for the Court to examine the accuracy of the amounts listed in the

certificate of assessment. Namely, to challenge the matter in this Court, Mr.

Odoemene must have first exhausted his administrative remedies

. 12 Where a remedy

is a vailable through an administrative hearing, a petitioner “cannot come

immediately to this court, rather they must [first] establish a record below. ” 13 In

other words , a person may not simply decide to bypass the administrative process. 14

Here, the Genera l Assembly demonstrated its intent that a taxpayer must avail

himself or herself of this administrative process

. That process (which could

ultimately lead to Superior Court review on appeal) is the only process available to

challenge the assessment.

Noti ce of the Proposed Assessment

Mr. Odeomene may collaterally attack the certificate of assessment only if the

Division did not provide notice to the taxpayer of the amount claimed

. 15 That is

,

10 See 30 Del. C

. § 554(a) (providing that “the Director may file in the office of the Prothonotary of the county in which the taxpayer resides . . . a certificate specifying the [amount owed and] the
amount set forth in the certificate shall thereupon be and constitute a jud gment of record in such court with like force and effect as any other judgment of the court . . .”) (emphasis added)

. 11 See Krewson v. Household Finance Corp.

, 1983 WL 413306, at *2 (Del. Super. Sept. 29, 1983) (recognizing “[ a ] judgment, order or decree r endered by a court having jurisdiction of the parties and the subject matter, unless reversed or cancelled in some proper proceeding, is not open to collateral attack in any other proceed

. ”)); see also State v. Kamalski

, 429 A.2d 1315 (Del. Super. Jan. 14, 1981) (stating “[c]ollateral attack is allowed only where the judgment is void, a void judgment being a judgment rendered without jurisdiction. If a judgment is merely voidable because of some other type of defect its v alidity may not be impeached in a collateral proceeding.”)).

12 Garvin v. Booth , 2019 WL 3017419, at *4 (Del. Super. July 10, 2019).

13 Id . (citing Buckson v. Ropp , 2000 WL 174 1935, at *3 (Del. Super. Nov. 21, 2000 ) ).

14 Id . (citing Carter v. Dept. o f Labor , 1993 WL 489222, at *2 (Del. Super. Nov. 12, 1993) )

. 15 R ESTATEMENT (F IRST ) OF J UDGMENTS § 6( b) (A M

. L. I NST

. 1942).5

because under this case’s circumstances, the transferred judgment would be void

only if there was a complete lack of notice in the underlying forum

.
Here

, the statute required the Division to send Mr. O d o e m e ne’s proposed

assessment to him at his last kn own address by certified or registered mail. 16

Specifically

, it provides that “[s]ixty days after the date on which [the proposed

assessment] was mailed , . . . a notice of proposed assessment under § 521(c) of this

tile, shall constitute a final assessme nt

. . . .” 17

The Court understands Mr. Odoemene ’s contention that he did not receive the

notice of the assessment and should not be bound by it. Nevertheless

, the Division

mailed the proposed assessment to him on December 8, 2020

, to the correct

address

. 18 Furthermore, the USPS tracking website confirms that the Postal Service

delivered the certified notice to Mr. Odoemene’s mailbox on December 11, 2020, at
5:38 p.m. 19

Where a method of notification is provided by statute, and the method is

re asonable, a judgment is not void merely because the defendant did not receive

actual knowledge of the action. 20 Here, the statute defines proper notice for tax

assessment matters : the mailing of the notice by certified or registered mail to the

taxpayer ’s last known address. The process the General Assembly created provides

reasonable notice, even in the off chance that a tax payer did not physically view the

mailed document.

16 30 Del. C. § 521(b)(3)

17 Id. at § 522 (emphasis added)

. 18 State’s Ex. 1

, supplemental filing dated Sept

. 7, 202 1.

19 State’s Ex. 2, supplemental filing dated Sept. 7, 2021.

20 R ESTATEMENT (F IRST ) OF J UDGMENTS § 6( c) (A M

. L. I NST

. 1942); see also H. D. Warren, Sufficiency of compliance with statute providing for service by mail of notice in tax procedure , 155
A.L.R. 1279 (recognizing that it is the general rule “that where service of notice by mail or registered mail in tax proceedings is expressly required or authorized by statute, conformity with
the statu t e, and with the rules and procedure of the [USPS] is sufficient compliance . . . actual receipt thereof is not essential.”).6

The Court recognizes Delaware’s common law presumption regarding

mailing. A t common law there is a presumption that correctly addressed, stamped,

and mailed materials were received by the party to who the notice was addressed. 21

In this regard , at common law, a factual issue may arise when the alleged recipient

denies that he or she received it. 22

Here, however, the common law presumption is not at issue. Rather , because

Mr. Odoemene’s circumstance involved a tax assessment for more than $1,000, the

Division met its notice requirements when it sent the notice of proposed assessment

by certified mail

. 23

Finally, while the Court need not apply the common law “mailbox rule” in

this case, the result would nevertheless be the same

. Namely, the Division sent the

notice by certified mail. Furthermore, the Postal Service delivered the notice to Mr.

Od oe mene’s mailbox. If the Postal Service did not obtain a signature upon delivery,

as it should have, given the circumstances of this case, Mr. Odoemene ’s contention

that he did not physically see the notice would not rebut the common law

presumption of notice. The Court is satis fied t hat the proposed assessment reached

his mailbox.

21 Windom v. Ungerer , 903 A.2d 276, 2 8 2 (Del. 2006).

22 Id

. 23 See Mitchell et al. v. Pychlau

, , 148 A. 890, 893 (N.J. 1930) (finding that compliance with statutorily established notice requirements , not actual service, provides notice ); Welles et al. v. Schaffer, 129 A. 622, 623 (N.J. Ch. 1925) ( providing the same)

. See also Deysher v. Unemployment Ins. App. Bd.

, 2011 WL 706 3475, at *1 (Del. Super. Dec. 29, 2011) ( showing , in
the context of unemployment insurance appeals

, compliance with 19 Del. C. § 3318(b) requires
notice be mailed to a claimant at their last known address ); Wyatte v. Unemployment Ins. App. Bd

., 140 A.3d 430 (Del. 2016) (TABLE) (affirming board decision to deny appeal where claimant did
not receive actual notice and D epartment of L abor complied with statutory requirement of mailing notice to the claimant’s last known address) )

.7 Conclusion

For the abovementioned reasons, Mr. Odoemene’s motion to strike the

Division of Revenue’s certificate of assessment must be DENIED

. IT IS SO ORDERED

. Very truly yours,

/s/ Jeffrey J Clar k Resident Judge

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