RICHARD SWARBRICK EXECUTOR OF ESTATE OF OLIVE HORNICH v. NEW JERSEY DIVISION OF TAXATION (2010)

Plaintiff, Richard C. Swarbrick, an attorney at law and executor of the estate of Olive M. Hornich, appeals from the dismissal with prejudice of his complaint against defendant, the New Jersey Division of Taxation (the Division).   Olive owned a home located at 411 Rivercrest Drive, Piscataway.¹  She died on February 13, 2006, and plaintiff was appointed executor in March.   As part of his administration of Olive's estate, plaintiff attempted to secure a Homestead Rebate (HR) for the year 2005.   When his efforts were unsuccessful, plaintiff filed suit on February 20, 2008, in the Small Claims Section of the Law Division, Special Civil Part, Middlesex County, seeking the rebate.   The matter was transferred by that court to Mercer County, which in turn transferred the complaint to the Tax Court on the Division's motion.   The matter proceeded to trial over the course of two days.

At the first hearing, plaintiff contended that the HR application had been sent to the wrong address.   His attempts to contact the Division through the toll-free telephone numbers provided were frustrating and fruitless.   The Division, however, contended that it had no record of an application ever being filed.   The Tax Court judge adjourned the hearing and requested that plaintiff produce a witness who could testify as to Olive's residence on October 1, 2005, the operative date to determine eligibility for the rebate.

At the second hearing, Olive's son Edward testified that his mother resided at 411 Rivercrest Drive from September 1961 until the date of her death.   On the day she died, Edward arrived at her home to take her to a doctor's appointment.   He received no response at the door, saw that his mother was unresponsive on the floor, and called 9-1-1.   Police arrived and entered the home but Olive had expired.

The proofs before the Tax Court judge revealed that a standard form HR application was mailed to Olive at 841 Sherwood Road, Bridgewater.   Edward testified that that address was his brother Frank's address, the brother having had all of Olive's mail forwarded to him prior to her death.   The application was pre-printed with Olive's Piscataway address as the subject property.   As is typical, the application provided for telephonic filing or on-line filing, and clearly indicated that it must be filed no later than June 1, 2006.

Plaintiff acknowledged receipt of the application at his law office shortly after Olive's death, though he could not recall “how it got there․”  Plaintiff had no telephone records to document his calls to the Division prior to filing suit because “the telephone company sa[id]” the records were unavailable for calls to “an 800 number.”   Plaintiff contended that he called the Division three times but never received a confirmation number for the application and was unable to speak to anyone in person.

Meg Jones, a representative from the Division, testified that no application was received for the 2005 HR regarding Olive's property.   She identified a letter sent by the Division to plaintiff on April 28, 2008, informing him that no application had been received, and further informing him that any application would now be denied as time-barred.   The Division indicated that plaintiff could nonetheless file an application and appeal the formal denial to the Tax Court.   The letter provided a specific telephone number, 609-943-5000, in the event there were additional questions.

Jones described the toll-free telephonic filing system in detail, noting that the Division did not record phone calls into the system.   Jones testified that the system does not produce a record of any call unless and until a confirmation number is issued, and none was issued in this instance.

Plaintiff acknowledged receipt of the April 2008 letter, and further believed that he called the phone number provided, though he explained that he called “all the numbers.”   He contended that he received “a run around,” and was again directed to call the toll-free number.   He believed he forwarded an application in accordance with the letter, but he had no record in that regard.

The Tax Court judge reviewed the testimony.   She found the application for Olive's 2005 HR was sent to her son's address and received by plaintiff shortly after Olive's death.   She further concluded that “there was no filing of the application” through the telephone system, and that there was “no real record or testimony as to when any subsequent contacts were made with the Division․”  The judge determined there was no “attempt to make a timely application ․ [a]nd ․ no application ha[d] ever been filed” in any format.   The judge dismissed plaintiff's complaint, and this appeal followed.

Plaintiff contends that we should reverse the Tax Court's order and compel the Division to pay the appropriate HR because the Division failed to maintain records of his attempt to file an application, and because the Division failed to properly send an application to Olive's home address, or otherwise facilitate the filing of an application by mail.   He further seeks an order “forbidding the State to deal with taxpayers by one-way recordings and to have one on one communications with taxpayers․”  We have considered these arguments in light of the record and applicable legal standards.   We affirm, substantially for the reasons expressed by the Tax Court judge.   See R. 2:11-3(e)(1)(A).

Our review of the factual findings made by the trial judge in a non-jury trial is quite limited.  Estate of Ostlund v. Ostlund, 391 N.J.Super. 390, 400 (App.Div.2007).  “ ‘We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.’ ”  Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J.Super. 486, 498 (App.Div.2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).   In general, the judge's factual “findings ․ should not be disturbed unless they are so wholly insupportable as to result in a denial of justice․”  Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quotation omitted).

Here, the Tax Court judge had the opportunity to listen to the witnesses, assess their credibility, and determine the facts based upon all the evidence adduced.   We find no basis to disturb her factual findings that an application for the 2005 HR was received by Olive's son and forwarded to plaintiff, and her further finding that no application for the 2005 HR was ever filed, telephonically or otherwise.

To the extent plaintiff contests the unfairness of the procedure utilized in this case, we simply note that N.J.S.A. 54:4-8.62 vests the Director of the Division with the authority to determine the “form” and “format” for submission of the application.   There is nothing in the evidence adduced that suggests the Division did not comply with its own procedures in this case.   The judge determined that plaintiff received the application, attempted to file it telephonically, and, perhaps understandably, was frustrated by the format.   Moreover, to the extent plaintiff contends the application never provided for an alternative mailing procedure, we note that the application that plaintiff acknowledged receiving provides explicitly that “paper application[s]” must be requested, and there is no evidence that one was ever requested.²

Plaintiff's arguments that the Division's failure to maintain records of his attempts to file the application telephonically amounts to spoliation of evidence, that this Court should order some other “format” for filing the HR application, or order the Division to respond to inquiries in some other manner, are without sufficient merit to warrant discussion.   See R. 2:11-3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. To avoid confusion, we shall refer to the members of the Hornich family by their first names.   We intend no disrespect by this informality..  FN1. To avoid confusion, we shall refer to the members of the Hornich family by their first names.   We intend no disrespect by this informality.

FN2. The statute further provides that good cause for an extension to file a late application “shall not be established due to a claimant not having received an application from the director.”  N.J.S.A. 54:4-8.62(a)..  FN2. The statute further provides that good cause for an extension to file a late application “shall not be established due to a claimant not having received an application from the director.”  N.J.S.A. 54:4-8.62(a).

PER CURIAM