440 Rt 17 Ptrns LLC v. Borough of Hasbrouck Heights

28 N.J. Tax 241
CourtNew Jersey Tax Court
DecidedDecember 2, 2014
StatusPublished

This text of 28 N.J. Tax 241 (440 Rt 17 Ptrns LLC v. Borough of Hasbrouck Heights) is published on Counsel Stack Legal Research, covering New Jersey Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
440 Rt 17 Ptrns LLC v. Borough of Hasbrouck Heights, 28 N.J. Tax 241 (N.J. Super. Ct. 2014).

Opinion

ANDRESINI, J.T.C.

This is the court’s opinion with respect to Defendant’s motion for dismissal. Plaintiff 440 Rt 17 Ptrns LLC (“Plaintiff’) filed a complaint attacking the assessment for property located at 440 Route 17 North in Hasbrouek Heights, designated as Block 125.05 Lot 34 (the “Subject Property”) against the Borough of Hasbrouek Heights (“Defendant”). Defendant’s motion to dismiss is based on Plaintiffs failure to comply with a Chapter 91 request pursuant to N.J.S.A. 54:4-34 (“Chapter 91”). Plaintiff alleges that its non-response was excused for Defendant’s failure to make the request 45 days before the January 10 deadline imposed by N.J.S.A. 54:4-35. See Westmark Partners v. Township of West Deptford, 12 N.J.Tax 591 (Tax 1992). For the reasons set forth below, Defendant’s motion to dismiss is denied.

Procedural History and Findings of Fact

The Subject Property is income-producing commercial property assessed at $2,229,100 for the 2014 tax year. A Chapter 91 request for income and expense information to be used to deter[243]*243mine the 2014 tax year assessment was “dispatched” by the Tax Assessor, George M. Reggo (the “Assessor”), on November 22, 2013, according to the his amended certification. A review of the United States Postal Service records indicates that the request was not actually received by the United States Post Office until November 29, 2013. Mr. Reggo certified the delay was caused by the need to compile all of Defendant’s requests and affix each of the required return receipt forms.

The certified mail return receipt (the “green card”) indicates that the request was not received by Plaintiff until December 2, 2013. Plaintiff did not respond to the request. The November 29 mailing date (and therefore the December 2, 2013 date of receipt) was too late to allow for the entire statutory 45-day response period under N.J.S.A. 54:4-34 to elapse prior to the January 10 deadline imposed by N.J.S.A. 54:4-35 on which assessors are required to submit their book of assessments for the tax year.

Despite the January 10 statutory deadline, the Assessor did not submit the Tax Assessment List for the Borough of Hasbrouck Heights (the “Assessment List”) until February 26, 2014. His certification states he received permission from the Bergen County Board of Taxation to make a late filing. Defendant’s counsel stated during oral argument that permission was granted by the Bergen County Tax Administrator. Neither allegation is supported by any evidence, which counsel concedes does not exist. It does not appear from the record that the public was given notice that the Assessment List was to be submitted late; nor was the public made aware of whether any authority gave its permission for doing so. The record does not show that permission for an extension was granted in accordance with N.J.S.A. 54:4-37 as no minutes or other record of a proceeding of the Bergen County Board of Taxation have been brought to the attention of this court.

The Assessor also certified that had Plaintiff provided responses to the Chapter 91 request within the 45-day statutory period, and had such responses warranted an adjustment in the assessment, he would have had sufficient time to make an adjustment, if warranted, prior to submission of the Assessment List. Defen[244]*244dant also points out that assessors often make late submissions of the Assessment Lists. In support, Defendant provided the court with a list of municipalities which submitted their 2014 assessment lists late.

Conclusions of Law

N.J.S.A. 54:4-34 states:

Every owner of real property of the taxing district shall, on written request of the assessor, made by certified mail, render a full and true account of his name and real property and the income therefrom, in the case of income-producing property, and produce his title papers, and he may be examined on oath by the assessor, and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request, or to testify on oath when required, or shall render a false or fraudulent account, the assessor shall value his property at such amount as he may, from any information in his possession or available to him, reasonably determine to be the full and fan- value thereof. No appeal shall be heard from the assessor’s valuation and assessment with respect to income-producing property where the owner has failed or refused to respond to such written request for information within 45 days of such request or to testify on oath when required, or shall have rendered a false or fraudulent account. The county board of taxation may impose such terms and conditions for furnishing the requested information where it appears that the owner, for good cause shown, could not furnish the information within the required period of time. In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section.

Dismissal of the taxpayer’s complaint is proper where the taxpayer fails to provide the requested information. Southeast Mall v. Township of Berkeley, 18 N.J.Tax 326 (App.Div.1999). According to the Statement, dated January 26, 1978, annexed to Finance and Appropriations Committee revision of Senate Bill 309, Leg. Sess. of 1979, the 45-day response requirement “is necessary to provide for an orderly procedure.” Hastings Plaza v. Township of Washington, 17 N.J.Tax 165, 168 (Tax 1998). Though it is a harsh remedy, dismissal is appropriate because Chapter 91 was designed as a measure to conserve resources and avoid litigation; by providing the municipality with the best possible information on which to make an assessment. See Terrace View Gardens v. Township of Dover, 5 N.J.Tax 469, 472 (Tax), aff'd per curiam o.b., 5 N.J.Tax 475 (App.Div.1982), certif. denied, 94 N.J. 59, 462 A.2d 165 (1983). The preclusion of an appeal, except in limited circumstances, is proper, or else “any valuation prepared by the assessor would be at best an interim [8] one, of use only until the taxpayer complies with the request for income and expense infor[245]*245mation.” Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 7, 547 A.2d 691 (1988). Thus, dismissal avoids wasting the assessor’s valuable time and resources and properly places the burden on the property owner to assist the assessor in the first instance. Ibid. There is no procedural due process violation resulting from dismissal. Id. at 9-10, 547 A.2d 691.

N.J.S.A. 54:4-35 states that assessment lists must be submitted by January 10 of the applicable tax year. That deadline has been observed by courts in calculating when Chapter 91 requests must be made. See New Plan Realty Trust v. Township of Brick, 23 N.J.Tax 225, 232-33 (Tax 2006); John Hancock Mut. Life Ins. Co. v. Township of Wayne, 13 N.J.Tax 417 (Tax 1993); Westmark, supra, 12 N.J.Tax at 596. In order for an extension to be granted in compliance with the statute, it must be granted in a formal proceeding of the county board of taxation. See N.J.S.A.

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Bluebook (online)
28 N.J. Tax 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/440-rt-17-ptrns-llc-v-borough-of-hasbrouck-heights-njtaxct-2014.