Mitchell A. Newmark

Biography

Mitchell defends, audits, and litigates U.S. state and local tax matters before judicial courts and administrative tribunals around the country. He has secured favorable outcomes on tax matters, many of which are precedential, and has argued successfully before state high courts, intermediate appellate courts, and trial courts on behalf of clients across a wide range of industries.

He advises clients on all state and local income; gross-receipts; franchise, sales, use, excise, and miscellaneous taxes and fees; and state unclaimed property obligations. He counsels clients on state and local aspects of sophisticated planning and transactional matters, such as acquisitions; dispositions; restructurings; and asset-based financing transactions, including inventory and off-take financing agreements. He has also successfully counseled individuals and estates regarding residency, domicile, and multistate taxability in audits and appeals.

Mitchell was named a Law360 Tax MVP in 2019. He routinely publishes articles on U.S. state and local taxation, which have appeared in leading industry publications such as Tax Executive, The Professional Journal of the Tax Executives Institute; Deal Lawyers; Law360 Tax; the New Jersey Bar Association Taxation Law Section Newsletter; the DealLawyers.com blog; State Tax Notes; COST State Tax Report; Association of Corporate Counsel; and Tax Management’s Multistate Tax Report.

He also frequently delivers lectures on state and local tax issues and has spoken before numerous organizations, including the NYU Institute on State and Local Taxation; Georgetown University Law Center’s Advanced State and Local Tax Institute; New York University’s School of Professional Studies Tax Conferences in July; Vanderbilt University Law School’s Paul J. Hartman State and Local Tax Forum; The Tax Executives Institute; The Council on State Taxation; The Energy Tax Association; STARTUP; North Eastern States Tax Officials Association; New Jersey CPA Society; New Jersey Bar Association; New Jersey Society of Enrolled Agents; and the Chicago Tax Club.

Prior to joining Blank Rome, Mitchell was a partner at a leading Am Law 100 firm and spent six years as a deputy attorney general at the New Jersey Attorney General’s Office, where he represented the Division of Taxation, among other agencies and bodies, in court. He also counseled the Division of Taxation and other agencies on regulatory matters. From 1996–1997, he served as a law clerk for the Honorable Irwin I. Kimmelman, New Jersey Superior Court, Appellate Division.

Experience

  • Represented an American tobacco company in the New Jersey Tax Court, which reversed the taxation director’s denial of refund claims and found that, when considering the “unreasonable” exception to the related-party royalty expense addback, the relevant consideration is whether the recipient of the royalty payment paid tax in New Jersey on the income and, if it does pay tax, the payor’s and the recipient’s relative apportionment factors are irrelevant and cannot be the basis for a refund denial.
  • Represented an investment corporation in the New Jersey Tax Court, which held under the state tax addback that, when related parties are included in combined or consolidated state income tax filings and agree to adjust liabilities among them under a tax sharing agreement, the amounts settled under the agreement are intercompany liabilities and are not state taxes for the potential addback.
  • Represented an American department store retail chain before the Virginia Supreme Court, which held in a 4-3 decision that the subject-to-tax safe harbor to the royalty addback was ambiguous and applies only to the extent that the royalties are actually taxed by another state. In addition, the court agreed with the company’s alternative argument that a portion of the royalties qualify for the safe harbor when 1) the royalties are taxed by states that require the royalty payor to add back the royalty payments, or 2) the royalties are taxed by states that require combined or consolidated reporting.
  • Represented an innovation, consumer and market insights, and competitive assessment service company before the Massachusetts Appellate Tax Board, which reversed the Commissioner of Revenue’s assessment of penalties, noting that the imputation of penalties was improper because the company had reasonably relied on written statements and actions of the Department of Revenue’s auditors and supervisors during two prior audits.
  • Represented an affiliate company of an American tobacco company before the New Jersey Supreme Court, which declined the state’s request to review the company’s prior win in the New Jersey Superior Court, Appellate Division, which affirmed the Tax Court’s decision 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.
  • Represented an affiliate of the world's largest package delivery, specialized transportation, and logistics services company before the New Jersey Supreme Court, which affirmed the company’s prior win in the New Jersey Superior Court, Appellate Division, 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.
  • Represented an American electric power holding company before the New Jersey Tax Court, which held that electric utilities taxes paid to North Carolina and South Carolina are not taxes “on or measured by profits or income, or business presence or business activity” and therefore are not required to be added back to the taxpayer’s federal taxable income for Corporation Business Tax purposes.
  • Represented a manufacturer and marketer of home appliances and related products before the New Jersey Supreme Court, which 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 Public Law 86-272.
  • Represented a multinational gambling company before the New Jersey Tax Court, which 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 starting at the time the taxpayer filed its protest.
  • Represented an American privately held multinational corporation, and manufacturer and distributor of audiovisual automation and integration equipment, before the New Jersey Tax Court, which 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.
  • Represented an American global manufacturer and marketer of consumer and professional products before the New Jersey Superior Court, Appellate Division, which affirmed the company’s prior win in the New Jersey Tax Court and held that a transferor in a tax-free IRC Section 351 contribution of property was not required to take an excess depreciation deduction that would have resulted in lower basis and depreciation by the recipient because New Jersey had decoupled from federal accelerated depreciation during those years (requiring straight-line depreciation) and a transferred basis continued in the hands of the transferee.

Recognitions

  • 2019, “MVP of the Year,” listed in Law360
  • 2017–2019, U.S. Taxes: Contentious, listed in The Legal 500 United States
  • 2016, Tax Controversy, listed in The Legal 500 United States
  • 2016, “Outstanding Contribution to the Taxation Law Section,” awarded by the New Jersey State Bar Association Tax Section
  • 2014, Tax Controversy and Domestic Tax: East Coast, listed in The Legal 500 United States

Mitchell has also received two attorney general recognition awards, including for his work in response to the September 11, 2001 terrorist attack on the World Trade Center.

Affiliations

Memberships

  • New Jersey State Bar Association
Professional Activities

Mitchell serves as co-chair of the State Practice, Procedure and Liaison Committee of the Tax Section of the New Jersey Bar Association. He is also a member of the Tax Section of the New Jersey Bar Association Executive Committee and Executive Council, which he previously chaired. Mitchell was a member of the New Jersey Supreme Court Committee on the Tax Court for 11 years until he termed out in 2018.

Credentials

Admissions

  • New Jersey
  • Florida
  • New York

Education

  • Widener University School of Law, JD
  • Georgetown University Law Center, LLM
  • Rutgers University, BA
  • Rutgers University, MBA