NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

**495 Dr. Martin Luther King, Jr. Blvd. Floor**  **4** MARY SIOBHAN BRENNAN **Newark , New Jersey 0**  **7102**

JUDGE **609 815**

**- 2922, Ext. 54560**  **Fax: 609 815** 

**- 3079** 

**April 12, 2024**

**Yawar Syed Self** 

**- Representing Plaintiff**  **159 W Wilkes Barre Street Easton, PA 08042**  **Timothy M. Kawira, Deputy Attorney General Attorney for Defendant**  **, Director, Division of Taxation**  **25 Market Street PO B**  **ox 106 Trenton, New Jersey 08625-0106** 

**Via ECourts**

RE: YAWAR S YED V DIRECTOR, DIVISION OF TAXATION Docket Nos. : 010253-2023

**Dear Mr. Syed**  **and DAG Swan :**  **This letter opinion sets forth the court’s findings of fact and conclusions of law on Director,** 

**Division of Taxation’s (“Defendant” or “Division”)**  **R. 4:64 motion**  **for summary judgment**  **dismissing the**  **C omplaint as**  **untimely. Background and**  **Procedural History**

**Yawar Syed**  **(“Plaintiff”) is a New Jersey resident employed in the State of New York.**  **Plaintiff filed timely New Jersey Gross Income Tax (“**  **NJ GIT”)**  **returns for tax years 2013, 2014, 2015, 2016 and 2017. In 2018, the Division**  **advised Plaintiff that there were errors on his NJ**  **GIT**

**tax returns related to withholding tax. Subsequently, it was determined that Plaintiff’s accountant**  

# ml ADA

Americans with Disabilities Act ENSURING AN OPEN DOOR TO 

## JUSTICE**2**

**had reported Plaintiff’s New York withholding tax as New Jersey withholding tax. Plaintiff’s** 

**accountant filed amended tax returns to the New York Division of Taxation and a schedule J**  **with the Division for the 2013-2017 tax years.**  **Unfortunately for Plaintiff, New York denied Plaintiff’s refunds for 2013, 2014, 2015 and**

**2016 as time barred. New York did honor Plaintiff’s 2017 refund.**  **Plaintiff ’s attempts to resolve** 

**his outstanding tax obligations with the Division have been unsuccessful and have resulted in the**  **escalation of penalties and interest. Plaintiff’s position is that the Division is res ponsible for both** 

**the outstanding tax obligations from 2013 through 2016 and the associated interest and penalties**  **due to the Division’s delay in advising him of his accountant’s**  **error. On July 28, 2022, the Division issued a Final D**  **etermination letter to Plaintiff, which was**  **sent by the United States Postal Service**  **certified mail return receipt**  **requested. The Final Determination letter was sent to Plaintiff’s last known address at the time,**  **which was 2828 Kennedy Blvd, Apt. 426, Jersey City, NJ 07306-3919. The communication reads as follows:** 

**This is**  **the** FINAL DETERMINATION **by the Division of**  **Taxation with regard**  **to your protest and/or**  **request for a hearing dated August 25, 2021.**  **After giving careful consideration to the information provided by you, the Division's file, and your telephone conference**  **held on**  **May 24, 2022;**  **it has been determined that**  **the Division's Denial Notice**  **dated May 24,**  **2021, is upheld (please see enclosed citations). You**  **filed 2013, 2014, 2015, and 2016 Amended Form NJ -1040X's**  **showing tax amounts due that have not yet been paid. Interest has been assessed on these deficiency amounts from the original due**  **date of the Form NJ-1040. The interest on the underpayment of tax is required under the State**  **Tax Uniform Procedure Law as per N.J.S.A.54A:9-5. The Division has abated the penalty amounts.** **3 Tax**  **Period Tax**  **Penal Interest to** 

**8/15/2022 Prior** 

**Refund Issued**  **Credits Total** 

**GIT 2013**  **$ 126.00**  **$0.00 $**  **985.40 $1,580.00**  **($ 401.00)**  **$ 2,290.40**  **GIT 2014**  **$ 195.00**  **$0.00 $1,601.86**  **$2,292.00 ($**  **0.00) $**  **4,088.86 GIT**  **2015 $**  **0.00 $0.00**  **$1,441.86 $3,027.00**  **($ 0.00)**  $ **4,468.86 GIT**  **2016 $**  **966.00 $0.00**  **$ 0.00**  **$ 0.00**  **($ 966.00)**  **$ 0.00**  **GIT 2017**  **$ 0.00**  **$0.00 $**  **319.73 $**  **948.00 ($**  **0.00) $**  **1,267.73 TOTAL**  **$1,287.00 $0.00**  **$4,348.85 $7,847.00**  **($1,367.00) $12,115.85**  **The current amount due is $12,115.85. Please make your payment online at: httns://www.state.nj.us/treaswy/taxation/payments** 

**** **notices.shtml or make**  **your check**  **payable to**  **the "State**  **of New Jersey''**  **and send**  **it to**  **the Division**  **of Taxation,**  **Conference and Appeals**  **Branch, P.O.**  **Box 198, Trenton, New**  **Jersey 08695-0198,**  **Attention: Christine**  **Masiello by August 15, 2022.** 

**You are**  **reminded that**  **interest continues to**  **accrue at**  **the statutory**  **rate as**  **long as**  **any balance remains**  **unpaid. Statutory**  **interest has**  **been calculated**  **to August**  **15, 2022.**  **Except as**  **otherwise specifically**  **provided in**  **N.J.S.A. 54A:9-**  **14, this matter will be forwarded to the Division's Special Procedures Branch for collection upon expiration**  **of the time**  **for all**  **further appeals**  **consistent with**  **the provisions of N.J.S.A. 54A:9-10.** 

**Please be**  **advised that**  **further collection**  **service fees**  **may be imposed**  **should the balance**  **remain unp**  **aid. The**  **5% penalty**  **and the**  **collection service**  **fee are**  **in addition**  **to all**  **penalties, interest**  **and other**  **costs authorized**  **'by law.** 

**If you**  **do not**  **agree with**  **the above**  **determination, you**  **may file**  **a complaint**  **with the**  **Tax Court**  **of New**  **Jersey. The Tax**  **Court must**  **receive the**  **complaint, along**  **with the**  **required fee**  **relative to**  **this determination,**  **within 90**  **days from**  **the date**  **of this**  **notice in**  **accordance with the provisions of N.J.S.A. 54:51A-13**  **et seq.** 

**Approximately fifteen months later, on November 11, 2023, Plaintiff filed a complaint w ith** 

**the T**  **ax C**  **ourt. Because of the Division’s perceived untimeliness in discovering the accountant’ s**  **error, Plaintiff requests that his tax credit be transferred to New York. Plai ntiff also requests that**  **this court waive the amounts, penalties, and interest from 2013 through 2017, and that the court 4** 

**adjust the 2018 and 2019 refunds from the owed amounts of 2017 along with removal of the penalties and interest.**  **On January 29, 2024, the Division filed an Answer to the Plaintiff’s complaint** 

**. Subsequently on February 5, 2024, the Division filed the within motion for summary judgment.**  **Plaintiff did not oppose the motion. Legal**  **Analysis The Division moves pursuant to**  **R. 4:46-**  **1 to dismiss Plaintiff’s complaint with prejudice for lack of subject matter jurisdiction** 

**. Rule 4:46-1 allows a party to move for summary judgment**  **in its favor before the case is tried. The Court can grant the motion if, from the pleadi ngs,**  **depositions, answers, admissions, and/or certifications, it appears that there is “no genuine issue** 

**as to any material fact challenged.”**  **R. 4:46-**  **2. Summary judgment shall be granted where “there is no genuine issue as to any material fact . . . and . . . the moving**  **party is entitled to a judgment**

**or order as a matter of law.” R.**  **4:46- 2(c).**  **The movant bears the “burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact” regarding the claims asserted.**  **Judson v. Peoples Bank and Trust ,**  **17 N.J. 67, 74 (1954) (citation omitted). The Supreme Court has cautioned that, “a court should deny a summary judgment motion only where the party opposing the motion has come forward**  **with evidence that creates a ‘genuine issue as to any material fact c hallenged.’”**  **Brill v. Guardian**

**Life Ins. Co. of Am.**  **, 142 N.J. 520, 529 (1995) (emphasis in original; quoting R.**  **4:46- 2(c)). “That**  **means a non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute.”**  **Ibid. (emphasis in original). Moreover, “when the evidence is so one**  **sided that one party must prevail as a matter of law the trial court should not hesitate t**  **o grant summary judgment.”**  **Id. at 540 (quotations omitted).** **5**

**“Subject**

**- matter jurisdiction involves the threshold determination as to whether the cou**  **rt is legally authorized to decide the question presented.” See**  **Carroll v. United Airlines , 325 N.J.**  **Super. 353, 357 (App. Div. 1999) (citing Gilbert v. Gladden, 87 N.J. 275, 280-81 (1981)). As a threshold determination, any issues regarding subject matter jurisdiction “must be a**  **ddressed before considering**  **the substantive merits of the matter.” See New Jersey Citizen Action v. Riviera**  **Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997). Judicial review of Taxation’s actions “with respect to any tax matter” is governed**  **by N.J.S.A. 54:51A-13 to-20 of the State Uniform Tax Procedure Law (“TPL”). That statutory**  **provision establishes the ninety** 

**- day appeal period granted to taxpayers to contest actions of the** 

**Di vision**  **, stating that “all complaints shall be filed within 90 days after the date of the act ion sought**  **to be reviewed.” N.J.S.A. 54:51A-14(a). The TPL further prescribes that “the appeal provi ded by**  **this [Act] shall be the exclusive remed y available to any taxpayer for review of an action of the**  **Director . . . with respect to any tax matter . . . .” N.J.S.A. 54:51A-16. Insofar as the subject of the**  **Plaintiff’s Final Determination concerns deficient**  **NJ GIT**  **liabilities, see also N.J.S.A. 54A:9**

**- 1 (TPL applies to taxes imposed under GIT Act except where**  **a specific NJ**  **GIT Act provision conflicts with the TPL) and N.J.S.A. 54A:9-10(a) (appeals to Tax Court must be filed within 90 days of “any decision, order, finding, assessment or action of . . .**  **Taxation . . . in accordance with the provisions of the [TPL].”); R.**  **8:4- 1 (“Complaints seeking to**  **review actions of [] Taxation . . . with respect to a tax matter . . . shall be filed within 90 days after** 

**the date of the action to be reviewed”);**  **R. 8:4-**  **2 (The 90-day limitations period is “calculated from the date of service of the decision or notice of the action taken”). “The right of appeal**  **. . . is purely statutory and all applicable statutory requirements must be complied with to sustain s**  **uch ap peal.”**  **City of Newark v. Fischer, 3 N.J. 488, 493 (1950). 6** 

**S pecifically, the Appellate Division has explained that a “statutory time prescriptio**  **n for the filing of an appeal has uniformly been held to constitute a non-**  **relaxable jurisdictional requirement attended by the consequence of preclusion of the action if not complied with.”**  **F.M.C. Stores Co. v. Morris Plains, 195 N.J. Super. 373, 381 (App. Div. 1984). Moreover, the “language**  **with regard to the ninety day time requirement is plain and unambiguous; and [w]here statutory language is plain, unambiguous and uncontrolled by another part of the act or other legislation, a**  **court may not give it a different meaning.” Off v. Div. of Taxation for the State of N.J., 16 N.J. Tax 157, 164 (**  **Tax 1996) (citing Schneider v. City of**  **E. Orange**  **, 196 N.J. Super. 587, 592 (App. Div. 1984) (internal quotations omitted.).**  **The policy considerations that require strict compliance with statutory limitations fo r**  **challenging administrative actions are instructive, well established, and ref lect the importance of**  **establishing a clear point in time at which an administrative determ ination becomes fixed and final.**  **The failure to file a timely administrative protest or Tax Court appeal is a fatal defec t given the**  **Tax Court’s limited jurisdiction. See F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418**  **(1985) (held, the August 15 statutory deadline for tax appeals is a nonmodifiable jurisdictiona l**  **requirement; affirmed bar of tax appeal following untimely appeal). And see Leake v. Bullock**  **, 104 N.J. Super. 309, 313 (App. Div. 1969).**  **Statutes of limitations embody important public policy considerations in that they stimula te**  **activity and punish negligence and promote repose by giving security and stability to human**

**affairs. Kyle v. Green Acres at Verona, Inc.**  **, 44 N.J. 100, 108 (1965). They are intended to run against those who are neglectful of their rights and who fail to use reasonable and p**  **roper diligence**

**in the enforcement thereof. Ibid.**  **Notably, statutes of limitation are so strictly enforced that this**

**court has held that it cannot relax the statutory time period by even one day.**  **Mayfair Holding 7** 

**Corp. v. N.**  **Bergen Tp., 4 N.J. Tax 38 (Tax 1982); Prospect Hill Apts. v. Boro. of Flemington, 1 N.J. Tax 224 (Tax 1979).** 

**The Tax Cour t has recognized that this result is mandated because “[c]ompliance with**  **statutory filing requirements is an unqualified jurisdictional imperative, long sanc tioned by our** 

**courts.” Mayfair Holding**  **, 4 N.J. Tax at 40. In short, N.J.S.A. 54A:9-10(a), N.J.S.A. 54:51A**  **-14,**

**R. 8:4-**  **1, and R. 8:4-**  **2 require that Tax Court complaints must be filed within 90- days of service** 

**of Taxation’s final determination letter. See Sahaya v. Dir., Div. of Taxation, 29 N.J. Tax 18, 23**  **( Tax**  **2015) (“the [90-day] period beg ins to run upon receipt of the [final determination letter]”)**  **(citing Liapakis v. State, 363 N.J. Super. 96 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004)).**  **In the case at hand, Plaintiff**  **filed his Tax Court complaint on November 28, 2023. Plaintiff**

**attached the**  **July 28, 2022 ,**  **Final Determination Letter issued by the Division**

**. Th**  **is is consistent** 

**with the Division**  **’s records, which further confirm the Final Determination letter**  **w as delivered to**  **Plaintiff by USPS Certified Mail on August 1, 2022. Ninety (90) days from the date of the F**  **inal**

**determination wo uld set the deadline to file an appeal on Monday, October 31, 2022**  **The failure to timely file an appeal t**  **o the Tax Court is a fatal defect, as the Tax Court ’s**  **jurisdiction to review the Division’s**  **determination is limited. While the circumstances of a missed deadline are regretful**  **, they cannot serve as an adequate basis to overcome the lack of jurisdiction**  **this court faces. Plaintiff’s failure to timely submit a complaint pursuant to the app licable statutes,**  **court rules, and case law deprives this court of jurisdiction to hear the instant appea l.** 

**Conclusion**

**The court grants**  **the Division’s motion**  **for summary judgment to**  **dismiss Plaintiff’s Complaint**  **as untimely**

**. 8**  **/s/ Mary Siobhan Brennan Hon. Mary Siobhan Brennan, J.T.C.**