TAX COURT OF NEW JERSEY 

Essex County Dr. Martin L. King Jr. Justice Bldg. 

495 Martin Luther King Blvd.- 4th Floor 

Newark, New Jersey 07102-0690 

609 815-2922, Ext. 54660 

JOAN BEDRIN MURRAY

 JUDGE

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL 

OF THE TAX COURT COMMITTEE ON OPINIONS 

 January 27, 2023 

Via Email and Regular Mail 

Donna Porcaro 

5 Porcaro Drive 

Little Ferry, New Jersey 07643 

Via eCourts 

Lindsey R. Curewitz, Deputy Attorney General 

Division of Law 

R.J. Hughes Justice Complex 

25 Market Street 

Trenton, New Jersey 08625 

 Re: Donna Porcaro v. Director, Division of Taxation 

 Docket No. 012296-2020

Dear Ms. Porcaro and Deputy Attorney General Curewitz: 

This letter constitutes the court’s opinion with regard to defendant, Director, Division of 

Taxation’s motion for summary judgment dismissing plaintiff’s complaint with prejudice for lack 

of subject matter jurisdiction under R. 4:6-2(a). In short, defendant contends plaintiff untimely 

protested a denial of her claim for a reduction in taxable wages reported on her 2016 New Jersey 

Gross Income Tax return. Plaintiff, by way of opposition, asserts she did not receive the refund 

denial notice, nor is there proof of service of the notice. She submits, instead, that the ninety-day 

period within which a written protest may be filed did not begin to run until more than two years 
 

 

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later, when she learned of the denial of her claim during a telephone call with defendant. For the 

reasons set forth more fully below, defendant’s motion for summary judgment is denied. 

I. Findings of Fact and Procedural Posture

On December 14, 2015, plaintiff, Donna Porcaro (Porcaro), was involved in a shooting 

incident while on duty as a police officer in the Borough of Rochelle Park (Borough). She was 

placed on administrative leave for a period of time, then remained out of work due to her injury 

until her retirement on or about November 2016. The gravamen of plaintiff’s complaint is that 

wages paid to her by the Borough in tax year 2016, while she was injured and not working, should 

not be subject to tax. She seeks a refund of approximately $10,000. 

In support of its motion to dismiss plaintiff’s complaint for untimeliness, defendant relies 

on the certification of Thomas Hepp (Hepp), a supervising auditor in the Division of Taxation’s 

Conference and Appeals Branch. Therein, Hepp states he is assigned to assist defendant with the 

defense of its October 21, 2020 determination of untimeliness of plaintiff’s protest, and that he is 

in possession of and fully familiar with defendant’s pertinent files and records in this litigation. 

Specifically, Hepp certifies that a series of written communications took place between plaintiff 

and defendant regarding her 2016 GIT return. Attached to the Hepp certification are copies of 

four notices he states were sent to plaintiff. Each letter indicates plaintiff’s name and correct 

mailing address in the top lefthand corner. The record does not contain plaintiff’s responses to 

any of the notices, although there is no dispute she received and responded to the first three letters. 

Plaintiff received defendant’s first letter, dated April 3, 2017, after filing her 2016 GIT 

return in early 2017. The letter acknowledged receipt of plaintiff’s tax return, and requested copies 

of her W-2 and/or 1099 statement(s) for tax year 2016 in order to “correct [her] account.” Plaintiff 
 

 

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was directed to submit the requested documents within thirty days, which she did. Defendant’s 

April 21, 2017 notice followed, advising plaintiff that her receipt of full pay during her time of 

injury or sickness was deemed wage continuation rather than wage replacement, and as such, was 

treated as taxable income. In addition, the letter informed plaintiff that if her employer was 

reimbursed for her wages through the workers’ compensation program or other plan, she might be 

able to reduce her taxable income accordingly. Plaintiff was directed to submit any documentation 

in that regard within thirty days. 

Plaintiff did supply proof of reimbursement, evidenced by defendant’s third letter dated 

December 13, 2017, notifying her that her taxable wages were adjusted and an additional refund 

of $1,065.64 issued on her behalf. This refund followed an initial refund of $6,005.36, issued on 

April 18, 2017 in connection with defendant’s request for documentation on April 3, 2017. The 

December 13, 2017 letter noted that proof of further reimbursement to the Borough, if any, 

should be submitted within thirty days. Plaintiff responded on even date. 

It is the mailing and receipt of the fourth and final letter in the 2017 exchange between the 

parties that constitutes the singular dispute of fact. To wit, Hepp states that a refund denial notice 

was mailed to plaintiff on December 21, 2017, advising her that no further reduction of her 2016 

taxable wages was permitted. The refund denial notice also states that “[t]his above determination 

is final unless you submit a written protest and request for a hearing (if a hearing is desired) within 

90 days from the date of this notice.” Thus, plaintiff’s written protest would be due on or about 

March 21, 2018. 

No such protest was submitted by plaintiff, who contends she did not receive the denial 

notice. Further, plaintiff notes she would have timely responded to the notice in the same manner 
 

 

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she responded to the three prior notices. No other written communications were exchanged 

between the parties for more than a two-year period. Instead, plaintiff asserts she engaged in a 

series of telephone calls with defendant in which she was given varied answers as to the time 

within which she had to pursue her claim. Further, plaintiff claims she repeatedly asked defendant 

for copies of all documents in her file pertaining to her refund request, and that she finally received 

copies of all four letters sometime between March and May of 2020. Plaintiff contends this was 

the first time she saw the December 21, 2017 refund denial notice. 

On June 2, 2020, which she asserts is within ninety days of her receipt of the December 

21, 2017 refund denial notice, plaintiff faxed a cover letter with sixteen pages of attachments to 

defendant in support of her claim for an additional refund. Defendant responded on October 21, 

2020, informing plaintiff that her June 2, 2020 protest was filed more than twenty-six months out 

of time. In addition, the letter contained instructions regarding plaintiff’s right to appeal the 

determination in the Tax Court. Plaintiff filed the complaint at bar on November 5, 2020. 

Thereafter, the parties exchanged discovery. Plaintiff provided defendant with copies of 

the documents she obtained from the Division of Taxation, including the four letters referred to in 

the Hepp certification accompanying defendant’s motion. In her opposition to defendant’s 

summary judgment motion, plaintiff points out that the exhibits to the Hepp certification, namely 

the December 13, 2017 and December 21, 2017 letters, are copies of those she supplied in 

discovery. In short, the photocopy of the December 21, 2017 letter at issue, attached in triplicate 

to Hepp’s certification as Exhibit D, shows plaintiff’s finger holding page 1 of the letter, which is 

dated. Plaintiff argues this constitutes evidence that defendant did not have in its possession the 
 

 

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letter purportedly mailed to her on December 21, 2017, suggesting it was not mailed to her on that 

date. Conversely, defendant maintains that plaintiff’s identification of her finger on the letter is 

proof that she timely received the letter. 

II. Conclusions of Law

Applications for summary judgment are governed by R. 4:46-2, which provides in pertinent 

part that:

The judgment or order sought shall be rendered forthwith 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.

[R. 4:46-2.]

In Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995), the Court reframed the 

standard for summary review by holding that:

[T]he determination whether there exists a genuine issue with respect to a material 

fact challenged requires the motion judge to consider whether the competent 

evidential materials presented, when viewed in the light most favorable to the nonmoving party in consideration of the applicable evidentiary standard, are sufficient 

to permit a rational factfinder to resolve the alleged disputed issue in favor of the 

non-moving party. 

[Id. at 523.]

In the motion at bar, defendant seeks summary judgment dismissing plaintiff’s complaint 

for lack of subject matter jurisdiction under R. 4:6-2(a), which dispositive defense may be asserted 

at any juncture and is non-waivable by the parties. Pressler & Verniero, Current N.J. Court Rules, 

cmt. 2.1 on R. 4:6-2 (GANN) (2023) (citing Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. 

Div, 2000)). See also R. 4:6-7, providing that “[w]henever it appears . . . that the court lacks 

jurisdiction of the subject matter, the court shall dismiss the matter . . . .” 
 

 

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Here, defendant’s claim that subject matter jurisdiction is lacking is premised on plaintiff’s 

alleged untimely protest of the December 21, 2017 refund denial letter. Plaintiff counters she did 

not receive the notice until sometime in 2020, when it was mailed to her by defendant upon her 

request for copies of her file. 

The legal standard governing service of notice by the Director, Division of Taxation is set 

forth in the State Uniform Tax Procedure Law, N.J.S.A. 54:48-1 to 54:54-6 (UPL). Therein, 

N.J.S.A. 54:50-6(a) provides in part: “Any notice required to be given by the director pursuant to 

the [UPL] may be served personally or by mailing the same to the person for whom it is intended, 

addressed to such person at the address given in the last report filed by that person . . . .” Also, 

[t]he mailing of such notice shall be presumptive evidence of the receipt of the same by the person 

to whom it was addressed.” Ibid. A refund determination notice is included in the list of notice 

types contemplated by the statute. N.J.S.A. 54:50-6(d). 

 Turning to the timeliness issue, N.J.S.A. 54:49-18(a) provides that a taxpayer “aggrieved 

by any finding or assessment of the director . . . may, within 90 days after the giving of the notice 

of assessment or finding, file a protest . . . .” The ninety-day period for filing a protest runs from 

the time the plaintiff receives notice. Estate of Pelligra v. Dir., Div. of Taxation, 23 N.J. Tax 658, 

663 (Tax 2008). 

The statutory time periods in the New Jersey 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) (2021). 

In the instant matter, the issue is whether plaintiff’s protest is untimely. While defendant 

relies on the presumption of receipt of the December 21, 2017 letter upon mailing, the court is not 
 

 

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persuaded that the photocopied exhibit showing plaintiff’s finger renders that presumption 

irrebuttable for purposes of summary judgment. Instead, viewing the evidence in the light most 

favorable to plaintiff, the court concludes there is a genuine dispute of material fact. Further, 

determination of the dispute hinges largely on credibility determinations, which cannot properly 

be made in a summary judgment setting. Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.2 

on R. 4:46-2 (GANN) (2021) (citing Parks v. Rogers, 176 N.J. 491, 502 (2003)). 

In light of the foregoing, defendant’s motion for summary judgment is denied. The matter 

will proceed to a plenary hearing on March 22, 2023 at 9:00 a.m. to determine the issues raised 

herein. 

Very truly yours, 

Hon. Joan Bedrin Murray, J.T.C.