                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-1747-17T2
                                                                     A-1749-17T2

ALFONSO LOMBARDI and
KATHLEEN LOMBARDI,

          Plaintiffs-Appellants,

v.

DIRECTOR, DIVISION OF
TAXATION,

     Defendant-Respondent.
____________________________

DOWN NECK, LLC,

          Plaintiff-Appellant,

v.

DIRECTOR, DIVISION OF
TAXATION,

     Defendant-Respondent.
____________________________

                    Submitted March 13, 2019 – Decided April 16, 2019

                    Before Judges Nugent and Reisner.
            On appeal from the Tax Court of New Jersey, Docket
            Nos. 018569-2013 and 018568-2013.

            O'Toole Scrivo Fernandez Weiner Van Lieu LLC,
            attorneys for appellants (Greg Trif and Nicole M.
            DeMuro, of counsel and on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Heather L. Anderson, Deputy
            Attorney General, on the brief).

PER CURIAM

      In these consolidated appeals, plaintiffs Alfonso and Kathleen Lombardi

and Down Neck, LLC, the limited liability company through which they operate

a restaurant and bar, appeal from a September 19, 2017 order dismissing their

complaint and affirming the Division of Taxation's assessments for unpaid taxes.

Plaintiffs also appeal from an October 31, 2017 order denying reconsideration.

      Tax Court Judge Kathi F. Fiamingo dismissed plaintiffs' complaint at the

close of their presentation of evidence. See R. 4:37-2(b). She found that

plaintiffs failed to produce records or documentation to support their case, and

they failed to overcome the presumption of correctness of the Division's

assessments for the tax years 2007 through 2010. See Yilmaz, Inc., v. Dir., Div.

of Taxation, 390 N.J. Super. 435, 440 (App. Div. 2007).




                                                                        A-1747-17T2
                                       2
      For example, the judge noted Alfonso Lombardi's claim that an

approximately $13,000 deposit into the business's account must have been a

loan. But, he had no documentation of the loan and admitted he could not recall

making the loan. The business also had no documentary evidence concerning

cash payouts, tips, or complementary and discounted meals. The judge found

no evidence that the Division used an inappropriate methodology in calculating

the underreported income.     The judge found plaintiffs agreed the Division

auditor could base his analysis on the 2011 tax year, and the fact that chicken

may have been slightly less expensive during some earlier years did not render

the auditor's methodology invalid.

      On this appeal, plaintiffs contend that Judge Fiamingo erred in dismissing

their complaint because they produced competent credible evidence that the

Division's methodology was "aberrant" and the Division's assessment of taxes

was "far wide of the mark." They also argue that the judge abused discretion in

denying their reconsideration motion, asserting that the judge failed "to consider

competent, credible evidence."

      After reviewing the record in light of the applicable standards of review,

we conclude that Judge Fiamingo considered and properly rejected the

arguments plaintiffs raised at the tax trial, and she did not abuse discretion in


                                                                          A-1747-17T2
                                        3
denying their reconsideration motion. See Yilmaz, 390 N.J. Super. at 443;

Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We affirm for

the reasons cogently stated by Judge Fiamingo in her oral opinion issued on

September 19, 2017, and her written opinion issued with the October 31, 2017

order. Plaintiff's appellate contentions are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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