STATE OF NEW JERSEY VS. GREGORY P. COBBS A-4479-14T2This appeal presented the question: when does the five-year statute of limitations begin to run against a prosecution for intentional failure to pay New Jersey taxes under N.J.S.A. 54:52-9(a). The offense has two elements: (1) the failure "to pay or turn over when due any tax, fee, penalty or interest or any part thereof required to be paid"; and (2) doing so with "the intent to evade, avoid or otherwise not make timely payment or deposit of any tax, fee, penalty or interest or any part thereof."
Defendant acknowledged he owed almost $200,000 in 2007 gross income taxes, according to his late tax return, which he filed on July 8, 2008. He was indicted for intentional failure to pay on July 10, 2013. The State argued the crime is a
continuing one under N.J.S.A. 2C:1-6(c), and the limitations period does not begin running until a defendant's last affirmative act of evasion or avoidance — in this case, when defendant last falsely promised to pay in 2010. The court disagreed, holding the time period begins once a defendant fails to pay taxes when due and owing, and does so with the requisite intent. This can occur on the day taxes are first due, or at a later date only if the necessary state of mind first emerges then. The indictment alleged these two elements were satisfied when defendant filed his return. Therefore, the court reversed the conviction because the indictment was returned more than five years after the crime was committed.