SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1747-17T2

 A-1749-17T2

ALFONSO LOMBARDI and

KATHLEEN LOMBARDI,

Plaintiffs-Appellants,

v.

DIRECTOR, DIVISION OF 

TAXATION,

Defendant-Respondent.

____________________________

DOWN NECK, LLC,

Plaintiff-Appellant,

v.

DIRECTOR, DIVISION OF 

TAXATION, 

Defendant-Respondent.

____________________________

Submitted March 13, 2019 – Decided April 16, 2019

Before Judges Nugent and Reisner.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1747-17T2

On appeal from the Tax Court of New Jersey, Docket 

Nos. 018569-2013 and 018568-2013. 

O'Toole Scrivo Fernandez Weiner Van Lieu LLC, 

attorneys for appellants (Greg Trif and Nicole M. 

DeMuro, of counsel and on the briefs). 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Heather L. Anderson, Deputy 

Attorney General, on the brief). 

PER CURIAM

In these consolidated appeals, plaintiffs Alfonso and Kathleen Lombardi 

and Down Neck, LLC, the limited liability company through which they operate 

a restaurant and bar, appeal from a September 19, 2017 order dismissing their 

complaint and affirming the Division of Taxation's assessments for unpaid taxes. 

Plaintiffs also appeal from an October 31, 2017 order denying reconsideration.

Tax Court Judge Kathi F. Fiamingo dismissed plaintiffs' complaint at the 

close of their presentation of evidence. See R. 4:37-2(b). She found that

plaintiffs failed to produce records or documentation to support their case, and 

they failed to overcome the presumption of correctness of the Division's 

assessments for the tax years 2007 through 2010. See Yilmaz, Inc., v. Dir., Div. 

of Taxation, 390 N.J. Super. 435, 440 (App. Div. 2007). 
3

A-1747-17T2

For example, the judge noted Alfonso Lombardi's claim that an 

approximately $13,000 deposit into the business's account must have been a 

loan. But, he had no documentation of the loan and admitted he could not recall 

making the loan. The business also had no documentary evidence concerning

cash payouts, tips, or complementary and discounted meals. The judge found 

no evidence that the Division used an inappropriate methodology in calculating 

the underreported income. The judge found plaintiffs agreed the Division 

auditor could base his analysis on the 2011 tax year, and the fact that chicken 

may have been slightly less expensive during some earlier years did not render 

the auditor's methodology invalid. 

On this appeal, plaintiffs contend that Judge Fiamingo erred in dismissing 

their complaint because they produced competent credible evidence that the 

Division's methodology was "aberrant" and the Division's assessment of taxes 

was "far wide of the mark." They also argue that the judge abused discretion in 

denying their reconsideration motion, asserting that the judge failed "to consider 

competent, credible evidence." 

After reviewing the record in light of the applicable standards of review, 

we conclude that Judge Fiamingo considered and properly rejected the 

arguments plaintiffs raised at the tax trial, and she did not abuse discretion in 
4

A-1747-17T2

denying their reconsideration motion. See Yilmaz, 390 N.J. Super. at 443; 

Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We affirm for 

the reasons cogently stated by Judge Fiamingo in her oral opinion issued on

September 19, 2017, and her written opinion issued with the October 31, 2017 

order. Plaintiff's appellate contentions are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.