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 

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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

October 12, 2018
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Plaintiff Scotty Pine, Inc. appeals from a March 30, 2017 Tax Court order 

denying its motion for reconsideration of a prior order1 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).
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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 attorney2 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.
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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,"3and 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.
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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 postmark 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 counterpart4and 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.
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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 
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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 
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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 
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(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 
10 A-3837-16T2

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 standard 

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.