Appeal of Cigarette Taxes

By Fredrick P. Niemann, Esq. a New Jersey Appeal Attorney

I recently reviewed the facts of a case regarding an appeal of cigarette taxes being assessed by the State of New Jersey against a client.

The facts of her case were as follows: The State of New Jersey assessed Cigarette Taxes against John Doe (a fictitious name). This entire controversy began with the purported shipment of cigarettes into the State between May 2003 and June 2004. In that time, 83 cartons of cigarettes were shipped and $81,831.00 in taxes accrued. These cigarettes were allegedly shipped to Manalapan, New Jersey, although the client had no knowledge of ever ordering or receiving these cigarettes. Between May 2003 and June 2004, the client was living in Brooklyn, NY in her grandmother’s apartment, along with her mother. At this time, the New Jersey residence was vacant.

Evidence given to us showed that she did not physically move into the State of New Jersey until late 2007 or early 2008. This is when the paperwork shows that she changed over her license to New Jersey. Also, she did not file income taxes for New Jersey until 2008.

On November 1, 2011, the State sent a Notice and Demand for Payment of Tax. The client responded on December 15, 2011 by requesting more information. The State considered this an attempt to appeal and replied on January 20, 2012 by stating that the 90-day appeal period ended August 5, 2009—a clear indication that the State considers their May 7, 2009 letter as the beginning of this process. The January 20, 2012 letter gave notice that an appeal must be filed by complaint within 90 days if client did not agree with the Division’s decision that the tax protest (December 15, 2011 request) was untimely. On January 27, 2012 the State entered Judgment for $82,750.51 against client.

In New Jersey, the State Uniform Procedure Act provides that “all complaints shall be filed within 90 days after the date of the action sought to be reviewed.” N.J.S.A. 54:51A-14; see also R. 8:4-3. The “time period shall be calculated from the date of service of the decision or notice of the action taken.” R. 8:4-2(a). The statutory time periods are jurisdictional, see McMahon v. City of Newark, 195 N.J. 526, 530 (2008), and cannot be relaxed by the Tax Court, see Prospect Hill Apts. V. Flemington, 172 N.J. Super. 245 (Tax Ct. 1979). Therefore, we initially evaluated when the effective date is for an appeal of the judgment to be reviewed; if it falls outside the statutory provisions, the New Jersey Tax Court will not have the jurisdiction to review the case.

The State Uniform Procedure Act further provides that:

Any notice required to be given by the director pursuant to the State Tax Uniform Procedure Law, R.S. 54:48-1 et seq., 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 pursuant to the provisions of the State Tax Uniform Procedure Law, or of any State tax law, or if no report has been filed, then to such address as may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of the same by the person to whom it was addressed.

[N.J.S.A. 54:50-6.]

This January 20 letter set forth clearly that there were 90 days to appeal the Secretary’s decision that client’s protests were time barred. Unfortunately, even using the most advantageous date to clients cause, the applicable 90-day timeline would have ended on April 23 (given a three-day extension, pursuant to R. 1:3-3 and commuting the Sunday the 22 to Monday the 23, pursuant to R. 1:3-1). This time has passed and client’s suit will be time barred by the court.

Contact me personally today to discuss your New Jersey appeal matter. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at