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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6198-05T56198-05T5
WALTER J. McDONALD,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY
DEPARTMENT OF THE TREASURY,
JOHN McCORMAC, MICHAEL IZZO,
JACK GRADY, OSI (As Agent for
NJDOT), BILL CRUSE and DIONISIO
PHILIPS,
Respondents-Defendants.
Submitted March 21, 2007 - Decided April 9, 2007
Before Judges A. A. RodrÃguez and Sabatino.
On appeal from the Tax Court of New Jersey, Docket No. ESX-L-4239-04.
Walter J. McDonald, appellant pro se.
Stuart Rabner, Attorney General of New Jersey, attorney for respondents State of New
Jersey Department of the Treasury ("NJDOT"), John McCormac, Michael Izzo and Jack
Grady (Michael J. Haas, Assistant Attorney General, of counsel; Michael J. Duffy, Deputy
Attorney General, on the brief).
Braff, Harris & Sukoneck, attorneys for respondents OSI (As Agent for NJDOT), Bill Cruse
and Dionisio Philips (Gloria B. Cherry, on the brief).
PER CURIAM
Plaintiff Walter J. McDonald, a New Jersey taxpayer, appeals a final judgment of the Tax Court entered on June 23,
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2006, which dismissed his pro se complaint against the State, various current and former state officials (John
McCormac, Michael Izzo and Jack Grady), a private collection agency retained by the State ("OSI"), and two
employees of that private firm (Bill Cruse and Dionisio Philips).
The lawsuit concerns a determination of the State Division of Taxation (the "Division") that plaintiff had been
deficient in his payment of State income taxes. The proofs adduced before the Tax Court showed that in 1988
plaintiff filed his 1987 New Jersey state income tax return and claimed, by his calculations, a $267 overpayment.
Plaintiff requested that he not receive a refund and that the $267 instead be applied as a credit to his 1988 state tax
liability. Nevertheless, on August 26, 1988, the Division issued a 1987 refund check in the sum of $600. The check
was made payable to plaintiff. Plaintiff denies ever receiving that check, which the Division contends he cashed.
Plaintiff proceeded to claim a 1987 credit on his 1988 tax return. Because the Division had already issued a refund
check for 1987, it determined that plaintiff's assertion of a 1987 credit was improper, and had resulted in plaintiff
underpaying his state income taxes in both 1989 and 1990. Consequently, the Division sought to collect the
deficiency from plaintiff through a collection agency, Payco General American Credits, Inc. ("Payco"), a predecessor
to OSI.
Beginning in April 1995 Payco communicated with plaintiff several times and sought his payment. Payco wrote
plaintiff in September 1996 informing him that a judgment would be entered against him if he did not pay the
amount due within thirty days. On August 11, 1997, when the debt still remained unpaid, the Division entered a
judgment against plaintiff for $899.04, representing the outstanding taxes, penalties and interest. Plaintiff was
served with the judgment. He then began writing letters to various State agencies and officials complaining about
the judgment. However, plaintiff did not take any legal action at that time.
The judgment against plaintiff, having not been the subject of an appeal, remained on the books. Ultimately, the
Division satisfied the judgment by arranging to have withheld from plaintiff certain federal tax refunds payable to
him as well as his 2001 New Jersey homestead rebate. Plaintiff was advised of the federal offsets by letters dated
October 11, 1999 and July 20, 2001. He was separately informed of the withholding of his homestead rebate by
letter on July 1, 2002.
The Division also supplied plaintiff on August 22, 2001 with a copy of the endorsed 1987 refund check issued in
1988. Plaintiff disputes that it is his signature on that check. The rest of the Division's file containing documents
from 1988 and 1989 concerning this matter has apparently been destroyed.
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Eventually, on May 25, 2004, plaintiff filed his complaint in the Law Division. The complaint alleged that the State,
OSI, and the individual named defendants had violated his civil and taxpayer rights, including violations of 42
U.S.C.A. § 1983, and had engaged in fraud and abuse of process. The Law Division transferred the case to the Tax
Court. The State defendants and the OSI defendants separately moved to dismiss plaintiff's lawsuit as untimely.
Plaintiff cross-moved to compel discovery.
On June 23, 2006, Judge Vito Bianco of the Tax Court heard the pending motions. During the course of the
proceedings, the judge had plaintiff sworn, thus enabling the court to consider plaintiff's factual contentions under
oath. At the conclusion of the hearing, Judge Bianco ruled that plaintiff's lawsuit was time-barred as a matter of law,
and he accordingly dismissed it. That disposition mooted the cross-motion for discovery. The judge thereafter
amplified his reasons, pursuant to R. 2:5-1(b), in a letter opinion dated August 22, 2006.
Plaintiff appeals, contending that the Tax Court erred in dismissing his lawsuit as untimely, and raising a variety of
other arguments. We affirm, substantially for the reasons set forth in Judge Bianco's oral and letter opinions. We add
only a few comments.
Under 100 N.J. 418, 424 (1985). Such adherence is necessary to provide finality and predictability of revenue to state
and local governments. Bonanno v. Director, Div. of Taxation, 12 N.J. Tax 552, 556 (Tax 1992). The ninety-day
deadline is jurisdictional, and has been strictly enforced even in circumstances where the taxpayer missed the
deadline by a single day. See, e.g., Mayfair Holding Corp. v. Township of North Bergen, 4 N.J. Tax 38, 40 (Tax 1982).
The deadline is absolute even for self-represented litigants such as plaintiff. See e.g., Lunin v. Director, Div. of
Taxation, 19 N.J. Tax 277, 280 (Tax 2001).
Plaintiff's civil rights claims under Section 1983, to the extent they are cognizable at all, also were time-barred
because the allegedly-wrongful acts of the defendants leading to the judgment against him occurred more than
two years before his lawsuit was filed. See General Motors Corp. v. City of Linden, 143 N.J. 336, 350 (1996)(noting
that a two-year limitations period applies to Section 1983 actions in New Jersey); see also Wilson v. Garcia, 471 U.S.
261, 105 S. Ct. 1938, 85 L. Ed.2d 254 (1985)(applying the state's personal injury statute of limitations to Section 1983
claims). The disputed refund in question was issued in 1988, the OSI defendants attempted collection in 1995
through 1997, and the Division's final judgment against plaintiff was entered in 1997. We do not conceive of the
State's application of post-1997 tax refunds or rebates to satisfy the unappealed (and thus presumptively valid)
judgment, or plaintiff's various communications with State officials after 1997, as extending the statute of
limitations under Section 1983. Indeed, our Supreme Court has expressed doubt about whether Section 1983
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actions may properly be used to "circumvent the statutory scheme" in state tax cases. General Motors Corp., supra,
143 N.J. at 351.
Plaintiff also contends that the trial judge erred in examining the handwriting on the copy of the 1988 refund check,
and in determining that the check and the endorsement were genuine. Although that factual determination is not
essential to our legal analysis, we accept the trial judge's finding of authenticity, particularly since he had the
opportunity to consider the credibility of plaintiff's contrary assertions. Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 483-84 (1974). Moreover, there was nothing wrong with the trial judge, as the finder of fact, making a
determination of authenticity without a handwriting expert, by visual inspection and comparison with exemplars of
plaintiff's signature.
(App. Div.), certif. denied, 130 N.J. 18 (1992)(concerning the authenticity of a document with a disputed signature).
We have fully considered plaintiff's remaining arguments, including his claim that the judge unfairly curtailed his
presentation at the motion proceedings, and have concluded that they lack sufficient merit to be addressed in this
written opinion. R. 2:11-3(e)(1)(E). Although we appreciate that plaintiff steadfastly believes that the State
misapplied his 1988 state tax overpayment, the time unfortunately has long passed for him to litigate that dispute.
Affirmed.
The record is unclear why the Division's calculation of the 1987 overpayment differed from plaintiff's calculation.
Plaintiff's complaint acknowledges that he was "contacted" by the Department of Treasury about this subject in
"1988-89."
Plaintiff's brief fails to organize his arguments with discrete point headings, as required by R. 2:6-2(a)(5).
Nonetheless, we have fully considered each of his contentions.
We do not believe that either August 22, 2001 or April 15, 2002 was the proper trigger date for the ninety-day filing
period, but simply note the Tax Court judge's reference to those possibilities for sake of completeness. In our view,
the trigger date had to be no later than August 11, 1997, when the Division's judgment was entered against plaintiff
and he was concurrently served with it.
(continued)
(continued)
8
A-6198-05T5
April 9, 2007
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