By Zachary Atkins and Timothy Gustafson
The New Jersey Tax Court held that a mobile telecommunications service provider was not required to reimburse its customers before seeking a $32 million refund of erroneously collected sales tax. As part of a federal court-approved 2010 settlement agreement involving AT&T Mobility and its subsidiaries and affiliates, New Cingular filed a refund claim for New Jersey sales tax it erroneously collected and remitted on sales of Internet access services. If granted, the settlement agreement requires New Cingular to deposit the refund in an escrow account under the supervision of the federal court for distribution to its customers. The New Jersey Division of Taxation denied New Cingular’s refund claim on the grounds that (1) New Cingular failed to demonstrate that it had reimbursed its customers prior to filing the refund claim pursuant to N.J. Stat. Ann. § 54:32B-20(a), and (2) New Jersey law did not permit a refund claim on behalf of a class. The tax court held that there is no requirement that a person reimburse its customers before its refund claim will be considered; rather, New Jersey law requires only that a person reimburse its customers before any refund is paid. The tax court also held that New Cingular’s refund claim was not filed on behalf of a class, notwithstanding the fact New Cingular had more than one million customers who it argued were erroneously charged sales tax. The matter was remanded to the Division for consideration of the substantive validity of New Cingular’s refund claim. New Cingular Wireless PCS, LLC v. Director, Div. of Taxation, No. 000003-2012, 2014 WL 714769 (N.J. Tax Ct. Feb. 21, 2014).