Mitchell A. Newmark

Mitchell A. Newmark

Education

Rutgers University (B.A., 1990)
Rutgers University (M.B.A., 1995)
Widener University School of Law (J.D., 1996)
Georgetown University Law Center (LL.M., 2001)

Bar Admissions

New Jersey
Florida
New York

Clerkships

Hon. Irwin I. Kimmelman, New Jersey Superior Court, Appellate Division (1996-1997)

Mitchell A. Newmark’s practice is concentrated on state and local tax litigation and appeals before administrative tribunals and judicial courts around the country. He has successfully argued in tax, civil, and appellate courts. He advises with respect to sophisticated transactional matters including acquisitions, restructurings, planning, and asset-based financing transactions regarding all state and local taxes.  He has also successfully counseled individuals and estates regarding residency, domicile, and multistate taxability.

Mr. Newmark has written extensively on state and local taxation and is a frequent lecturer concerning state and local taxes. He is admitted to practice before the U.S. Supreme Court; the U.S. Tax Court; the U.S. Court of Appeals, Third Circuit; and the U.S. District Court, District of New Jersey, as well as the Florida, New Jersey and New York bars.

Mr. Newmark was an eleven-year member of the New Jersey Supreme Court Committee on the Tax Court since 2008, and termed out in 2018. He is a past chair of the Tax Section of the New Jersey Bar Association and remains a member of its Executive Committee and Executive Council. He is a co-chair of the State Practice, Procedure and Liaison Committee of the Tax Section of the New Jersey Bar Association. In 2016, Mr. Newmark received the New Jersey State Bar Association Tax Section’s award for outstanding contribution to the Taxation Law Section.

Mr. Newmark graduated cum laude from the Widener University School of Law, where he was a board member of its law review, the Delaware Journal of Corporate Law. He also has an LL.M. in taxation from Georgetown University Law Center and an M.B.A. from Rutgers University Graduate School of Management.

Prior to joining Morrison & Foerster in mid-2003, Mr. Newmark was a Deputy Attorney General of the New Jersey Attorney General’s Office for six years. In that capacity, he represented the Division of Taxation in court matters and counseled the Division in connection with regulatory matters. He also represented other New Jersey agencies and bodies, including the Department of the Treasury and its Divisions of Investment and Pensions and Benefits as well as the State Investment Council and the Office of Management and Budget, the Department of Banking and Insurance and its Divisions, and the Banking Advisory Board. In December 2001, he received Attorney General Certificates of Recognition for his work on a substantial and complex financial services company transaction and for his work in response to the September 11, 2001 terrorist attack.

 

Lorillard Tobacco Company
The New Jersey Tax Court reversed the Taxation Director’s denial of refund claims and found that, when considering the “unreasonable” exception to the related-party royalty expense addback the relevant consideration is whether the recipient of the royalty payment paid tax in New Jersey on the income and, if it does pay tax, the payor’s and the recipient’s relative apportionment factors are irrelevant and cannot be the basis for a refund denial.


Daimler Investments US Corporation
The New Jersey Tax Court held under the state tax addback that, when related parties are included in combined or consolidated state income tax filings and agree to adjust liabilities among them under a tax sharing agreement, the amounts settled under the agreement are intercompany liabilities and are not state taxes for the potential addback.


Kohl’s Department Stores, Inc.
The Virginia Supreme Court, in a 4-3 decision, held that the subject-to-tax safe harbor to the royalty addback was ambiguous and applies only to the extent that the royalties are actually taxed by another state. In addition, the court agreed with the company’s alternative argument that a portion of the royalties also qualifies for the safe harbor when: (1) the royalties are taxed by states that require the royalty payor to add back the royalty payments or (2) the royalties are taxed by states that require combined or consolidated reporting.


Reynolds Innovations Inc.
The Massachusetts Appellate Tax Board reversed the Commissioner of Revenue’s assessment of penalties. Imputation of penalties was improper because Reynolds Innovations Inc. (an affiliate of R.J. Reynolds Tobacco Company) had reasonably relied on written statements and actions of the Department of Revenue’s auditors and supervisors during two prior audits.


Lorillard Licensing Company, LLC
The New Jersey Supreme Court declined the state’s request to review our win for this affiliate of Lorillard Tobacco Company in the New Jersey Superior Court, Appellate Division, which affirmed the Tax Court and held that New Jersey may not apply dual nexus standards for throwout purposes in computing apportionment. The court held that because New Jersey successfully asserted an economic nexus-based standard for constitutional subjectivity purposes, when applying the throwout to increase the portion of income that is taxed in New Jersey, that same economic nexus-based standard must also apply when considering other states’ subjectivity.


United Parcel Service General Services Co. (UPS)
The New Jersey Supreme Court affirmed our win for this affiliate of UPS in the New Jersey Superior Court, Appellate Division, and held that the Director abused his discretion and should have abated late payment penalties on a good faith issue and that the amnesty penalty did not apply to a good faith issue found on audit when the assessment was issued after the close of the amnesty.


Duke Energy Corporation
The New Jersey Tax Court ruled for the company and concluded that electric utilities taxes paid by Duke Energy Corporation to North Carolina and South Carolina “are not taxes ‘on or measured by profits or income, or business presence or business activity’ . . . and are not, therefore, required to be added back to the taxpayer’s federal taxable income for CBT purposes.”


Whirlpool Properties, Inc.
The New Jersey Supreme Court significantly narrowed the throwout statute to survive a facial constitutionality challenge and held that, to operate constitutionally, the throwout could only be applied to untaxed receipts due to a lack of jurisdiction to tax arising from an insufficient connection with the corporation or from congressional prohibition, such as Public Law 86-272.


IGT (successor to Anchor Coin, Inc.)
The New Jersey Tax Court held that inasmuch as, after an assessment is protested, a refund claim is not permitted until after the appeal is completed, refund interest accrues in favor of the taxpayer starting at the time the taxpayer filed its protest.


Crestron Electronics, Inc.
The New Jersey Tax Court held that the corporation business tax expresses a clear intent on the part of the Legislature to couple entire net income with federal taxable income with limited explicit exceptions, thereby precluding the Director’s attempt to require that the exclusion of extraterritorial income for federal purposes be added back to income for computing corporation business tax liability.


Clorox Products Manufacturing Company
The New Jersey Superior Court, Appellate Division, affirmed our win at New Jersey Tax Court and held that a transferor in a tax-free IRC Section 351 contribution of property was not required to take an excess depreciation deduction that would have resulted in lower basis and depreciation by the recipient because New Jersey had decoupled from federal accelerated depreciation during those years (requiring straight-line depreciation) and a transferred basis continued in the hands of the transferee.


Lorillard Tobacco Company
The New Jersey Tax Court reversed the Taxation Director’s denial of refund claims and found that, when considering the “unreasonable” exception to the related-party royalty expense addback the relevant consideration is whether the recipient of the royalty payment paid tax in New Jersey on the income and, if it does pay tax, the payor’s and the recipient’s relative apportionment factors are irrelevant and cannot be the basis for a refund denial.


Daimler Investments US Corporation
The New Jersey Tax Court held under the state tax addback that, when related parties are included in combined or consolidated state income tax filings and agree to adjust liabilities among them under a tax sharing agreement, the amounts settled under the agreement are intercompany liabilities and are not state taxes for the potential addback.


Kohl’s Department Stores, Inc.
The Virginia Supreme Court, in a 4-3 decision, held that the subject-to-tax safe harbor to the royalty addback was ambiguous and applies only to the extent that the royalties are actually taxed by another state. In addition, the court agreed with the company’s alternative argument that a portion of the royalties also qualifies for the safe harbor when: (1) the royalties are taxed by states that require the royalty payor to add back the royalty payments or (2) the royalties are taxed by states that require combined or consolidated reporting.


Reynolds Innovations Inc.
The Massachusetts Appellate Tax Board reversed the Commissioner of Revenue’s assessment of penalties. Imputation of penalties was improper because Reynolds Innovations Inc. (an affiliate of R.J. Reynolds Tobacco Company) had reasonably relied on written statements and actions of the Department of Revenue’s auditors and supervisors during two prior audits.


Lorillard Licensing Company, LLC
The New Jersey Supreme Court declined the state’s request to review our win for this affiliate of Lorillard Tobacco Company in the New Jersey Superior Court, Appellate Division, which affirmed the Tax Court and held that New Jersey may not apply dual nexus standards for throwout purposes in computing apportionment. The court held that because New Jersey successfully asserted an economic nexus-based standard for constitutional subjectivity purposes, when applying the throwout to increase the portion of income that is taxed in New Jersey, that same economic nexus-based standard must also apply when considering other states’ subjectivity.


United Parcel Service General Services Co. (UPS)
The New Jersey Supreme Court affirmed our win for this affiliate of UPS in the New Jersey Superior Court, Appellate Division, and held that the Director abused his discretion and should have abated late payment penalties on a good faith issue and that the amnesty penalty did not apply to a good faith issue found on audit when the assessment was issued after the close of the amnesty.


Duke Energy Corporation
The New Jersey Tax Court ruled for the company and concluded that electric utilities taxes paid by Duke Energy Corporation to North Carolina and South Carolina “are not taxes ‘on or measured by profits or income, or business presence or business activity’ . . . and are not, therefore, required to be added back to the taxpayer’s federal taxable income for CBT purposes.”


Whirlpool Properties, Inc.
The New Jersey Supreme Court significantly narrowed the throwout statute to survive a facial constitutionality challenge and held that, to operate constitutionally, the throwout could only be applied to untaxed receipts due to a lack of jurisdiction to tax arising from an insufficient connection with the corporation or from congressional prohibition, such as Public Law 86-272.


IGT (successor to Anchor Coin, Inc.)
The New Jersey Tax Court held that inasmuch as, after an assessment is protested, a refund claim is not permitted until after the appeal is completed, refund interest accrues in favor of the taxpayer starting at the time the taxpayer filed its protest.


Crestron Electronics, Inc.
The New Jersey Tax Court held that the corporation business tax expresses a clear intent on the part of the Legislature to couple entire net income with federal taxable income with limited explicit exceptions, thereby precluding the Director’s attempt to require that the exclusion of extraterritorial income for federal purposes be added back to income for computing corporation business tax liability.


Clorox Products Manufacturing Company
The New Jersey Superior Court, Appellate Division, affirmed our win at New Jersey Tax Court and held that a transferor in a tax-free IRC Section 351 contribution of property was not required to take an excess depreciation deduction that would have resulted in lower basis and depreciation by the recipient because New Jersey had decoupled from federal accelerated depreciation during those years (requiring straight-line depreciation) and a transferred basis continued in the hands of the transferee.


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