**1 NOT FOR PUBLICATION WITHOUT APPROVAL OF**  **THE TAX COURT COMMITTEE ON OPINIONS**
TAX COURT OF NEW JERSEY

J OAN B EDRIN M URRAY **125 State Street, Suite 100** J UDGE **Hackensack, New Jersey 07601 Tel:**  **(609 )**  **815-2922 Ext. 54660 Fax:**  **(201 )**  **996-8052**
**June 11, 2021**

**VIA eCourts Miles Eckardt**  **Deputy Attorney General Gurbir S. Grewal, Attorney General of N.J.**  **Attorney for defendant VIA Regular Mail**  **Francia Encarnacion 311 Totowa Avenue, 2**  **nd Floor**  **Paterson, New Jersey 07502**

**Re: Francia Encarnacion v. Director, Division of Taxation**  **Docket No. 008889-2019 Dear Plaintiff and Counsel:**  **This letter constitutes the court’s opinion with regard to defendant, Director, Divis ion of**  **Taxation’s motion to dismiss plaintiff’s complaint with prejudice for lack of subjec t** 

**- matter**  **jurisdiction under R.**  **4:6- 2(a). In short, defendant contends plaintiff**  **untimely protested a denial of her claim for a New Jersey Earned Income Tax Credit.**  **The motion is unopposed. For the reasons set forth below, defendant’s motion is granted.** 
I. Findings of Fact and Procedural Posture **On February 27, 2018, plaintiff filed a New Jersey Gross Income Tax resident return f or**  

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**tax year 2017 that included a claim for a New Jersey**  **E arned**  **I ncome**  **T ax**  **C redit**  **(NJ EITC) . By**  **letter dated January 2, 2019, plaintiff was informed the**  **NJ EITC was denied**  **, and that**  **she had ninety days from the date of the notice**  **to either submit a written**  **protest or appeal the decision by filing a complaint with the Tax Court of New Jersey**  **. Attache d to**  **defendant’s letter is**  **a notice entitled “Taxpayer Rights” setting forth with specificity the means by which plaint**  **iff could exercise her right to do so.**  **In support of the motion to dismiss, defendant offers t he Certification of Stephen DeLuca,**  **confe ree for the Division of Taxation.**  **Mr. DeLuca states he is assigned to assist defendant’s**  **counsel in defense of the final determination at issue in this matter. Attached to his certifica**  **tion is plaintiff’s letter dated April 2**  **5 , 2019**  **advising that she is appealing and protesting the January 2, 2019 denial notice. Also supplied is a copy of the envelope bearing a postmark of April 27,** 
**2019. In a letter**  **dated May 9, 2019, defendant notified plaintiff her protest was untimely, having been postmarked more than ninety days from the date of the January 2, 2019 final denial.**  **1 As**  **such, her request for a hearing was time**

**- barred**  **and denied . Plaintiff filed a complaint with the**  **Tax Court of New Jersey o n May 28, 2019.**  **While the motion is unopposed, it is noted that plaintiff’s appeal is based on claims she**  **did, in fact, respond to defendant’s January 2, 2019 final denial in a timely manner, including visiting the regional Division of Taxation office in Fair Lawn, New Jersey in an atte**  **mpt to resolve the matter.**  **Discovery was extended to allow plaintiff time to uncover documents to support her**

**1 In her protest letter, plaintiff refers to a denial of the NJ EITC for tax year**  **s 2017 and 2018. Defendant’s May 9, 2019 response, however, notes plaintiff’s 2018 NJ EITC had been issued t**  **o her on April 11, 2019 and that only the 2017 tax credit was denied.** **3**

**claim of timeliness. The record before the court, however, does not demonstrate a written protest**  **being submitted until April 27, 2019.**
II. Conclusions of Law
**R. 4:6-**  **2(a) provides that a party asserting lack of subject**

**- matter jurisdiction may assert**  **such dispositive defense in a motion prior to filing a responsive pleading. The legal standard governing appeals from actions taken by the Director, Division of** 
**Tax ation is codified in the State Uniform Tax Procedure Law, N.J.S.A. 54:48** 

**- 1 to 54:54** 

**- 6 (UPL).**  **Therein, N.J.S.A. 54:49-18(a), provides in part:**

**If any taxpayer shall be aggrieved by any finding or assessment of the director, [s]he may, within 90 days after the giving of the notice**  **of assessment or finding, file a protest in writing signed by [herself] or [her] duly authorized agent, certified to be true, which shall set**  **forth the reason therefor, and may request a hearing. Thereafter the director shall grant a hearing to the taxpayer, if the same shall be**  **requested and shall make a final determination confirming, modifying or vacating any such finding or assessment.**  **[Ibid.] The ninety** 

**- day period for filing a protest runs from the time the plaintiff receive**  **s notice. Estate of Pelligra v. Dir** 

**. , Div. of Taxation, 23 N.J. Tax 658, 663 (Tax 2008) (citing Liapakis v.**  **State of New Jersey, Dept. of the Treasury, Div. of Taxation, 363 N.J. Super. 96 (App. Div. 2003) wherein the Appellate Division reversed the Tax C**  **ourt, concluding the ninety**

**- day statute of**  **limitations for filing a Tax Court complaint runs from the date of receipt of the final determination).**  **Further, a protest or any other document “required to be filed within a prescribed period . . . shall be deemed to be delivered on the date of the United States postmark stamped on the**  **envelope.” N.J.S.A. 54:49-3.1(a). 4** 

**Regarding appeals filed in the Tax Court, N.J.S.A. 54:51A**

**- 14(a) of the UPL mandates that**  **“all complaints shall be filed within 90 days after the date of the action sought to be reviewed.”**  **Also, N.J.S.A. 54:51A**

**- 16 provides that the appeal process as set forth in the UPL “shall be the**  **exclusive remedy available to any taxpayer” for review of any action taken by the Direc tor,**  **Division of Taxation**

**. Ibid.**  **Finally, R.**  **8:4- 1(b) states that the time for filing a complaint in the**  **Tax Court with regard to actions taken by the Director, Division of Taxation must be filed w ithin**  **90 days of the date of said action. The statutory time periods in the New J**  **ersey Court Rules are jurisdictional.**  **McMahon v. City of Newark, 195 N.J. 526, 530, 544 (2008). As such, they are not subject to relaxation by the Tax Court.**  **Pressler & Verniero ,**  **Current N.J. Court Rules ,**  **cmt. 1 on** 
**R. 8:4-**  **1 (GANN) (20 21).** 
**In F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 42**  **4 (1985), the Court held**  **that “[s]trict adherence to statutory time limitations is essential in tax matters, b orne of the**  **exigencies of taxation and the administration of local government.” These**  **time constraints are**

**non- relaxable “in order to provide finality and predictability of revenue to state a**  **nd local government.” Bonanno v. Dir., Div** 

**. of Taxation**  **, 12 N.J. Tax, 552, 556 (Tax 1992) (citing Pantasote, Inc. v. Dir., Div. of Taxation, 8 N.J.**  **Ta x**  **160, 164**

**- 66 (Tax 1988)). In**  **Slater v. Dir**

**. ,**  **Div. of Taxation, 26 N.J. Tax 322, 333 (Tax 2012), the court noted prior holdings that “[t]he** 
**Tax Court lacks jurisdiction to hear the complaint of a taxpayer which was not**  **filed until the day**  **after the 90 day period.”**  **See Clairol, Inc. v. Kingsley, 109 N.J. Super. 22, 25 (App. Div. 1970);** 
**F.M.C. Stores**  **, 100 N.J. at**  **423-25. In this matter, plaintiff’s time to act began to run on January 2, 2019 and expired ninety**  **days later on April 2, 2019. Plaintiff’s protest letter, however, was deemed delivered on t he**  **postmark date of April 27, 2019. The record before the court clearly demonstrates the protest letter** **5**

**was untimely. Further, plaintiff does not deny receipt of defendant’s January 2, 2019 denial let ter**  **containing instructions o n**  **submitting either a protest or filing an appeal with the Tax Court. Likewise, plaintiff’s appea**  **l to the Tax Court is untimely as it was filed more than ninety days after the final decision contained in the Director’s January 2, 2019 letter informing her of the tim**  **e limitations for filing either a protest or an appeal.**  **In light of the foregoing, th e court concludes that it lacks jurisdiction to entertain plaintiff’s**  **complaint. As such, dismissal of the complaint with prejudice is warranted. An Order accompanies this Opinion.** 

**Very truly yours, /s/ Joan Bedrin Murray**  **Joan Bedrin Murray, J.T.C.**