                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-4089-15T2

RUCKSAPOL JIWUNGKUL,
AS EXECUTOR OF THE
ESTATE OF MAURICE R.
CONNOLLY, JR.,                              APPROVED FOR PUBLICATION

                                                   May 30, 2017
     Plaintiff-Appellant,
                                              APPELLATE DIVISION
v.

DIRECTOR, DIVISION OF
TAXATION,

     Defendant-Respondent.

_______________________________________

         Argued May 9, 2017 – Decided May 30, 2017

         Before Judges Messano, Espinosa and Grall.

         On appeal from the Tax Court of New Jersey,
         Docket No. 9346-2015.

         Robyne D.      LaGrotta   argued    the    cause    for
         appellant.

         Heather   Lynn  Anderson,  Deputy  Attorney
         General, argued the cause for respondent
         (Christopher S. Porrino, Attorney General,
         attorney;   Melissa   H.  Raksa,  Assistant
         Attorney General, of counsel; Ms. Anderson,
         on the brief).

     The opinion of the court was delivered by

ESPINOSA, J.A.D.
    Plaintiff Rucksapol Jiwungkul and Maurice R. Connolly, Jr.

registered        as   domestic      partners       pursuant       to    the     Domestic

Partnership Act (DPA), N.J.S.A. 26:8A-2(d) on July 10, 2004.

They chose not to enter into a civil union and, sadly, Connolly

died shortly before they were to marry.

    Plaintiff appeals from a decision of the Tax Court that

affirmed the denial of his request for a refund of inheritance

tax paid on behalf of Connolly's estate.                      Plaintiff argues the

trial court erred because the DPA violates the equal protection

guarantee of the New Jersey Constitution, Art. I, Para. 1, and

there   is    no    rational   basis    for       the   marital     deduction      to   be

different under the New Jersey Inheritance Tax Law and the New

Jersey Estate Law.        We affirm, substantially for the reasons set

forth in the cogent and comprehensive written opinion of Judge

Patrick      DeAlmeida,    P.J.T.C.,         Jiwungkul,       as    Executor      of    the

Estate of Michael R. Connolly, Jr. v. Director, Division of

Taxation, Docket No. 009346-2015 (May 11, 2016).

    In enacting the DPA, the Legislature expressed its intent

"that certain rights and benefits should be made available to

individuals participating in [domestic partnerships], including:

. . . certain tax-related benefits."                    N.J.S.A. 26:8A-2(c).            The

tax-related benefits the Legislature stated domestic partners

"should      be    entitled    to"    were       identified    as       "an    additional




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exemption      from   the   personal    income      tax   and    the     transfer

inheritance tax on the same basis as a spouse." N.J.S.A. 26:8A-

2(d).

      In Lewis v. Harris, 188 N.J. 415 (2006), the Court stated:

              To   comply    with   the   equal    protection
              guarantee of Article I, Paragraph 1 of the
              New Jersey Constitution, the State must
              provide to committed same-sex couples, on
              equal terms, the full rights and benefits
              enjoyed by heterosexual married couples. The
              State   can    fulfill   that   constitutional
              requirement in one of two ways. It can
              either   amend   the   marriage   statutes   to
              include same-sex couples or enact a parallel
              statutory structure by another name, in
              which same-sex couples would not only enjoy
              the rights and benefits, but also bear the
              burdens and obligations of civil marriage.
              If the State proceeds with a parallel
              scheme, it cannot make entry into a same-sex
              civil union any more difficult than it is
              for heterosexual couples to enter the state
              of marriage.

              [Id. at 463.]

      The legislative response was to enact the Civil Union Act,

N.J.S.A. 37:1-28 to -36, which established "civil unions" that

were "meant to guarantee the rights and benefits of marriage,

but [did] not allow same-sex partners to 'marry.'"                   Garden State

Equality v. Dow, 216 N.J. 314, 318 (2013) (citing N.J.S.A. 37:1-

28,   -33).      After   establishing       civil   unions,    the    Legislature

effectively      terminated    the     registration       of     new     domestic

partnerships and stated the new statute "shall not alter the




                                        3                                A-4089-15T2
rights and responsibilities of domestic partnerships existing

before the effective date of this act."            N.J.S.A. 26:8A-4.1.

    Plaintiff      filed   New   Jersey      tax   returns     on    behalf       of

Connolly's   estate   that   were   consistent        with   their       status   as

domestic partners.     He claimed the spousal exemption allowed for

domestic partners under the New Jersey Inheritance Tax, N.J.S.A.

54:34-2(a)(1), and paid $6,000 in inheritance tax.                   Because no

spousal deduction was permitted for domestic partners under the

New Jersey Estate Tax, N.J.S.A. 54:38-1 to -16, he did not claim

such a deduction and paid $101,040.72 in estate tax.

    Approximately two months later, plaintiff filed an amended

estate tax return in which he claimed a marital deduction for

all property passing to him from Connolly and a concomitant

refund of $101,040.72.       Although the marital deduction he sought

was not authorized under the DPA, it was available prior to

Connolly's death to members of a civil union.                  N.J.S.A. 37:1-

32(n); N.J.A.C. 18:26-3A.8(e).         Plaintiff's request for a refund

was denied by the Division of Taxation with the explanation,

"Please be advised that a Domestic Partner receives the Class A

exemption    for   Inheritance   Tax       purposes    however,      a    Domestic

Partner does not receive the Marital Deduction for Estate Tax

purposes."




                                       4                                   A-4089-15T2
      Plaintiff         then     filed      a    complaint        in      the     Tax     Court,

contending the denial of his request violated the DPA and the

Supreme     Court's          holding     in      Lewis,    and       moved       for     summary

judgment.        The     Division      of     Taxation     cross-moved           for     summary

judgment.            Judge    DeAlmeida         affirmed    the      denial       of    refund,

granting       the    Division's       cross-motion        and    denying         plaintiff's

motion.

      In   his       opinion,    Judge        DeAlmeida     identified           the    "central

question" as "whether the [DPA] provides that a surviving same-

sex registered domestic partner is to be treated as a surviving

spouse for purposes of calculating the New Jersey estate tax."

Jiwungkul, supra, slip op. at 1-2.                   He reviewed the evolution in

recognizing the rights of same-sex couples in the courts and in

legislation, the differences in the transfer inheritance tax and

the estate tax and the fact that, after passage of the DPA, the

Legislature amended four specific statutory provisions to apply

certain tax benefits – not including the estate tax -- to same-

sex   registered        domestic       partners.          Id.   at       4-10,    14.      Judge

DeAlmeida       stated,        "Only      extraordinary           circumstances            would

warrant    a    court        engrafting       into   the    DPA      a    tax    benefit      not

mentioned in the statute."                Id. at 18.        Such circumstances would

exist when a couple was "unable to enter into a marriage or

other State-sanctioned relationship affording them a tax benefit




                                                 5                                      A-4089-15T2
available to married couples."            Id. at 19.     Judge DeAlmeida

noted that "crucial fact" was absent here.           Ibid.    He observed

further that in deciding Lewis, the Supreme Court identified a

remedy to satisfy the constitutional infirmity rather than hold

the DPA should be construed to afford all the rights of marriage

to registered domestic partners. Ibid.             We agree with Judge

DeAlmeida that the DPA should be applied as written and that,

because same-sex couples can access all the rights and benefits

of   marriage   through   marriage   or    civil   unions,   there     is   no

constitutional violation.

      Affirmed.




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