Opinion
Argued March 15, 1982.
Decided April 28, 1982.
Appeal from the Tax Court.
Gerald C. Neary argued the cause for appellant ( Pitney, Hardin, Kipp Szuch, attorneys).
Harry Haushalter, Deputy Attorney General, argued the cause for respondent ( Irwin I. Kimmelman, Attorney General of New Jersey, attorney; James R. Zazzali, former Attorney General of New Jersey, Erminie L. Conley, former Assistant Attorney General, and Harry Haushalter, on the brief.)
Before Judges MILMED, JOELSON and GAULKIN.
The order and judgment under review are affirmed substantially for the reasons expressed by Judge Crabtree in his written opinion for the Tax Court of March 27, 1981, 2 N.J. Tax 329 and in light of the determination of plaintiff-appellant to forego the opportunity to submit proofs on the issue of "duplicative taxation" referred to therein.
Additionally, we need give no consideration here to plaintiff's contention, raised for the first time on this appeal, that "[e]ven if valid, the assessment should extend only to the cost of labor, not to the cost of parts." The Attorney General, in his brief on behalf of defendant-respondent Director of the Division of Taxation, notes that
. . . This issue was neither raised in the petition of appeal [to the former Division of Tax Appeals] nor incorporated as an issue in the pretrial order [of the Tax Court], nor raised or argued in the cross-motions for summary judgment, nor considered by the trial court in its opinion. The defendant has never been accorded an opportunity to address this issue at the trial court level and, therefore, has never had the opportunity to rebut the plaintiff's allegation that a significant portion of the receipts are non-taxable because they related to the sale of parts.
This issue, which is clearly raised as an afterthought at this late date, requires a thorough factual analysis as to the nature of the parts involved, the extent to which such parts were previously repaired or restored by Airwork in New Jersey, the manner in which Airwork acquired such parts, the condition such parts were in at the time of acquisition and the relative value of Airwork's skill in using such parts to repair complex machinery. . . .
The Attorney General properly concludes that:
. . . Airwork was clearly required to timely-raise below the issue as to the sale of parts and, thereby, allow for the compilation of a full factual record on this question. Having failed to raise this issue below, Airwork is now precluded from raising this issue on appeal.
See State v. Souss, 65 N.J. 453 , 460, 323 A.2d 484 (1974); Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229 , 234, 300 A.2d 142 (1973).
Affirmed.