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Mitchell A.
Newmark
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.
PARTNER
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.
250 WEST 55TH STREET
NEW YORK
FLORIDA 10019-9601
(212) 468-8103
[email protected]
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.
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.
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
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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.
Primary Practices
State + Local Tax
Canada
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
© 2016 Morrison & Foerster LLP. All Rights Reserved.
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New Jersey
Florida
New York
Clerkships
Hon. Irwin I. Kimmelman, New Jersey Superior Court, Appellate Division (1996-1997)
© 2016 Morrison & Foerster LLP. All Rights Reserved.