Mitchell A. Newmark

Mitchell A. Newmark

Partner

New York, (212) 468-8103

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 argued successfully in tax, civil, and appellate courts. He also advises companies and individuals with respect to sophisticated transactional matters including acquisition, restructuring, planning, and asset-based financing transactions regarding all state and local taxes.

Mr. Newmark has written extensively in the area of state and local taxation and is a frequent lecturer concerning state and local taxes. He has been recognized by Legal 500 in the categories of Tax Controversy and Domestic Tax: East Coast. Mr. Newmark is admitted to practice before the United States Supreme Court; the United States Tax Court; the United States Court of Appeals, Third Circuit; and the United States District Court, District of New Jersey, as well as to three state bars.

Mr. Newmark has been a member of the New Jersey Supreme Court Committee on the Tax Court since 2008. He is a recent 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 also 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; and the Department of Banking and Insurance and its Divisions, as well as the Banking Advisory Board. In December 2001, he received Attorney General Certificates of Recognition for his work in a substantial and complex financial services company transaction and for his work in response to the September 11, 2001 terrorist attack.

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.
United Parcel Service General Services Co. (UPS)
The New Jersey Supreme Court affirmed the New Jersey Superior Court, Appellate Division and the Tax Court 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.
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.
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 P.L. 86-272.
IGT/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 at the time it 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.
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.
United Parcel Service General Services Co. (UPS)
The New Jersey Supreme Court affirmed the New Jersey Superior Court, Appellate Division and the Tax Court 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.
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.
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 P.L. 86-272.
IGT/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 at the time it 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.

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