NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
______________________________ : CHRISTOPHER MATTHEW JOHNSON, : TAX COURT OF NEW JERSEY : DOCKET NO: 000249-2017 Plaintiff, : : vs. : : TOWNSHIP OF EGG HARBOR, : : Defendant. : ______________________________:
Decided: March 9, 2018
Christopher Johnson, Plaintiff.
Thomas G. Smith, attorney for Defendant.
CIMINO, J.T.C.
This is taxpayer Christopher Matthew Johnson’s Motion for
Reconsideration. Taxpayer sought exemption from property taxes
for his residence on the basis he is an eligible disabled veteran.
The basis for the dismissal is set forth in the court’s opinion of
November 16, 2017. For the reasons set forth more fully below,
taxpayer’s Motion for Reconsideration is denied.
Taxpayer entered active duty with the United States Marine
Corps on September 8, 1997. His initial duty was stateside in
South Carolina, North Carolina, and California. He was thereafter
stationed in Okinawa, Japan, from 2001 to September, 2002. His
-1- primary specialty was ground radio intermediate repair, which
required him to repair various types of communications equipment
for military vehicles and fixed locations. For a time, he became
a Sergeant of the Guard for Camp Courtney’s Anti-Terrorism Response
Force in Okinawa, Japan. As the Sergeant of the Guard, he had the
responsibility of posting sentries with live ammunition at
strategic points on the base to ensure against any sort of
terrorist attack. In addition, at one point he had to secure a
mailroom due to a mail bomb threat. He completed his service on
September 7, 2002 receiving an honorable discharge and completing
exactly five years of active duty.
During his service, the taxpayer received a number of medals
and commendations. The most relevant for the purposes of this
decision are the Global War on Terrorism Service Medal and the
commendation presented to the Third Marine Expeditionary Force and
Marine Corps Bases, Japan.
Correspondence presented to this court from the Department of
Veterans Affairs indicates that the taxpayer is “considered to be
totally and permanently disabled due solely to service connected
disabilities.”
On July 15, 2016, the taxpayer made an application for a tax
exemption on his dwelling house as a result of his disability
status. By letter dated August 2, 2016, the exemption was denied
since he did not serve 14 days in an actual combat zone.
-2- Thereafter, he appealed to the Atlantic County Board of Taxation
which upheld the decision of the assessor. On January 20, 2017,
the taxpayer filed a complaint with this court challenging the
decision of the Board of Taxation. Taxpayer then filed a motion
for summary judgment claiming he was entitled to the exemption.
The Township cross-moved for summary judgment seeking a decision
upholding the decision of the County Tax Board.
This court determined that the taxpayer met the temporal
requirements for the exemption as set by the statute, but did not
meet the non-temporal requirements then imposed by the
legislature. As a result, the matter was dismissed.
The taxpayer moves for reconsideration. The rule allowing
reconsideration is particularly useful when an opinion or order
deals with un-litigated or un-argued matters. Calcaterra v.
Calcaterra, 206 N.J. Super. 398, 403-04 (App. Div. 1986). The
rule is applicable only when the court’s decision is based on
plainly incorrect reasoning or when the court fails to consider
evidence or there was good reason for the court to reconsider new
information. Cummings v. Bahr, 295 N.J. Super 374, 384 (App. Div.
1996).
At the time of the court’s denial of the exemption,
legislation was pending to amend the provisions dealing with
veteran’s tax exemptions. The court noted that in the event the
legislation was enacted into law in the current term, the court,
-3- upon application to the taxpayer, would certainly reconsider
whether this constitutes a basis for relief pursuant to R. 4:50-
1(f). See Castiglioni v. Castiglioni, 192 N.J. Super. 594, 597-
98 (Ch. Div. 1984)(change in federal law respecting military
pension distributability undoing prior Supreme Court decision held
to constitute a basis for subparagraph (f) relief.); See also
Edgerton v. Edgerton, 203 N.J. Super. 160, 170 (App. Div. 1985).
In light of the Legislature’s recent enactment, the court will
consider taxpayer’s Motion for Reconsideration to at least address
the retroactivity of the newly enacted Statute.
In the recent past, this court has dealt with disabled
veterans property tax exemptions in Wellington v. Township of
Hillsborough, 27 N.J. Tax 37 (Tax 2012); Fisher, 29 N.J. Tax 91
(Tax 2016), aff’d, 450 N.J. Super. 610 (App. Div. 2017); and
Galloway Township v. Duncan, 29 N.J. Tax 520 (Tax 2016). In
addition, the Appellate Division weighed in with its affirmance of
this court’s decision in Fisher.
The State Constitution authorized the Legislature to grant
veteran’s property tax exemptions. See N.J. Const., art. VIII, §
1, ¶ 3. Fisher, 450 N.J. Super. at 614. Resultantly, the
Legislature provided a total exemption for veterans honorably
discharged who served in active service at a time of war and have
been declared disabled as a result of their service. Entitlement
to the exemption from real property taxes requires a party to prove
-4- (1) he or she is a citizen and resident of this State, (2) now or
hereafter honorably discharged or released under honorable
circumstances, (3) from active service in a time of war, (4) in
any branch or unit of the armed forces of the United States, (5)
who has been or shall be declared by the United States Veterans
Administration or its successor to have a service connected
disability declared by the United States Veterans Administration
or its successor to be a total or 100% permanent disability
sustained through enemy action, or accident, or resulting from
disease contracted while in such active service. Id. at 615,
(citing Wellington, supra, 27 N.J. Tax at 48).
Like Wellington, Fisher and Duncan which previously came
before this court, the only question is whether taxpayer satisfies
the third element, which is whether his service was in active
service in time of war. The court must “remain mindful taxation
is the rule and a claimant bears the burden of proving an
exemption.” Fisher, 450 N.J. Super. at 615, (citing New Jersey
Carpenters Apprentice Training and Educ. Fund v. Borough of
Kenilworth, 147 N.J. 171, 177 (1996), cert. den., 520 U.S. 1241
(1997)). The phrase “active service in time of war” as used, is
a defined term, which means the “periods of time set forth in
[N.J.S.A. 54:4-8.10].” N.J.S.A. 54:4-3.33a.
Earlier Legislatures only imposed a temporal requirement.
Only service during the time of the conflict, not a specific type
-5- of duty was necessary. See, e.g., L. 1952, c. 231, § 1 (Korean
Conflict); L. 1972, c. 166, § 4 (Vietnam Conflict). Generally,
this broadness continued until amendment in 1991. 1
In 1991, the Legislature departed from imposing just a
temporal requirement for conflicts that were to be added to the
list of eligible conflicts. Instead, the Legislature started
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
______________________________ : CHRISTOPHER MATTHEW JOHNSON, : TAX COURT OF NEW JERSEY : DOCKET NO: 000249-2017 Plaintiff, : : vs. : : TOWNSHIP OF EGG HARBOR, : : Defendant. : ______________________________:
Decided: March 9, 2018
Christopher Johnson, Plaintiff.
Thomas G. Smith, attorney for Defendant.
CIMINO, J.T.C.
This is taxpayer Christopher Matthew Johnson’s Motion for
Reconsideration. Taxpayer sought exemption from property taxes
for his residence on the basis he is an eligible disabled veteran.
The basis for the dismissal is set forth in the court’s opinion of
November 16, 2017. For the reasons set forth more fully below,
taxpayer’s Motion for Reconsideration is denied.
Taxpayer entered active duty with the United States Marine
Corps on September 8, 1997. His initial duty was stateside in
South Carolina, North Carolina, and California. He was thereafter
stationed in Okinawa, Japan, from 2001 to September, 2002. His
-1- primary specialty was ground radio intermediate repair, which
required him to repair various types of communications equipment
for military vehicles and fixed locations. For a time, he became
a Sergeant of the Guard for Camp Courtney’s Anti-Terrorism Response
Force in Okinawa, Japan. As the Sergeant of the Guard, he had the
responsibility of posting sentries with live ammunition at
strategic points on the base to ensure against any sort of
terrorist attack. In addition, at one point he had to secure a
mailroom due to a mail bomb threat. He completed his service on
September 7, 2002 receiving an honorable discharge and completing
exactly five years of active duty.
During his service, the taxpayer received a number of medals
and commendations. The most relevant for the purposes of this
decision are the Global War on Terrorism Service Medal and the
commendation presented to the Third Marine Expeditionary Force and
Marine Corps Bases, Japan.
Correspondence presented to this court from the Department of
Veterans Affairs indicates that the taxpayer is “considered to be
totally and permanently disabled due solely to service connected
disabilities.”
On July 15, 2016, the taxpayer made an application for a tax
exemption on his dwelling house as a result of his disability
status. By letter dated August 2, 2016, the exemption was denied
since he did not serve 14 days in an actual combat zone.
-2- Thereafter, he appealed to the Atlantic County Board of Taxation
which upheld the decision of the assessor. On January 20, 2017,
the taxpayer filed a complaint with this court challenging the
decision of the Board of Taxation. Taxpayer then filed a motion
for summary judgment claiming he was entitled to the exemption.
The Township cross-moved for summary judgment seeking a decision
upholding the decision of the County Tax Board.
This court determined that the taxpayer met the temporal
requirements for the exemption as set by the statute, but did not
meet the non-temporal requirements then imposed by the
legislature. As a result, the matter was dismissed.
The taxpayer moves for reconsideration. The rule allowing
reconsideration is particularly useful when an opinion or order
deals with un-litigated or un-argued matters. Calcaterra v.
Calcaterra, 206 N.J. Super. 398, 403-04 (App. Div. 1986). The
rule is applicable only when the court’s decision is based on
plainly incorrect reasoning or when the court fails to consider
evidence or there was good reason for the court to reconsider new
information. Cummings v. Bahr, 295 N.J. Super 374, 384 (App. Div.
1996).
At the time of the court’s denial of the exemption,
legislation was pending to amend the provisions dealing with
veteran’s tax exemptions. The court noted that in the event the
legislation was enacted into law in the current term, the court,
-3- upon application to the taxpayer, would certainly reconsider
whether this constitutes a basis for relief pursuant to R. 4:50-
1(f). See Castiglioni v. Castiglioni, 192 N.J. Super. 594, 597-
98 (Ch. Div. 1984)(change in federal law respecting military
pension distributability undoing prior Supreme Court decision held
to constitute a basis for subparagraph (f) relief.); See also
Edgerton v. Edgerton, 203 N.J. Super. 160, 170 (App. Div. 1985).
In light of the Legislature’s recent enactment, the court will
consider taxpayer’s Motion for Reconsideration to at least address
the retroactivity of the newly enacted Statute.
In the recent past, this court has dealt with disabled
veterans property tax exemptions in Wellington v. Township of
Hillsborough, 27 N.J. Tax 37 (Tax 2012); Fisher, 29 N.J. Tax 91
(Tax 2016), aff’d, 450 N.J. Super. 610 (App. Div. 2017); and
Galloway Township v. Duncan, 29 N.J. Tax 520 (Tax 2016). In
addition, the Appellate Division weighed in with its affirmance of
this court’s decision in Fisher.
The State Constitution authorized the Legislature to grant
veteran’s property tax exemptions. See N.J. Const., art. VIII, §
1, ¶ 3. Fisher, 450 N.J. Super. at 614. Resultantly, the
Legislature provided a total exemption for veterans honorably
discharged who served in active service at a time of war and have
been declared disabled as a result of their service. Entitlement
to the exemption from real property taxes requires a party to prove
-4- (1) he or she is a citizen and resident of this State, (2) now or
hereafter honorably discharged or released under honorable
circumstances, (3) from active service in a time of war, (4) in
any branch or unit of the armed forces of the United States, (5)
who has been or shall be declared by the United States Veterans
Administration or its successor to have a service connected
disability declared by the United States Veterans Administration
or its successor to be a total or 100% permanent disability
sustained through enemy action, or accident, or resulting from
disease contracted while in such active service. Id. at 615,
(citing Wellington, supra, 27 N.J. Tax at 48).
Like Wellington, Fisher and Duncan which previously came
before this court, the only question is whether taxpayer satisfies
the third element, which is whether his service was in active
service in time of war. The court must “remain mindful taxation
is the rule and a claimant bears the burden of proving an
exemption.” Fisher, 450 N.J. Super. at 615, (citing New Jersey
Carpenters Apprentice Training and Educ. Fund v. Borough of
Kenilworth, 147 N.J. 171, 177 (1996), cert. den., 520 U.S. 1241
(1997)). The phrase “active service in time of war” as used, is
a defined term, which means the “periods of time set forth in
[N.J.S.A. 54:4-8.10].” N.J.S.A. 54:4-3.33a.
Earlier Legislatures only imposed a temporal requirement.
Only service during the time of the conflict, not a specific type
-5- of duty was necessary. See, e.g., L. 1952, c. 231, § 1 (Korean
Conflict); L. 1972, c. 166, § 4 (Vietnam Conflict). Generally,
this broadness continued until amendment in 1991. 1
In 1991, the Legislature departed from imposing just a
temporal requirement for conflicts that were to be added to the
list of eligible conflicts. Instead, the Legislature started
tightening the standard for entitlement to the exemption by
introducing non-temporal requirements. Thus, when the Legislature
amended the statute in 1991 to include service in Lebanon (1982) 2,
Grenada (1983), Panama (1989) and Desert Storm/Shield (1990), the
Legislature tightened the standard for entitlement in those
conflicts to include not only a temporal limitation, but also a
geographic limitation as well. L. 1991, c. 390, § 7. 3 In other
words, more than military service during the time of conflict was
necessary. Instead, the Legislature mandated that the service
occur in the corresponding geographic region of the conflict.
Moreover, the Legislature also imposed a 14-day length of service
in the specified geographic region. Id. Thus, 1991 marked the
1 The requirements for United States military service in Russia from April 6, 1917 to April 1, 1920 seemingly contained a geographic requirement. L. 1969, c. 286, § 1.
2 Dates in parenthesis are the inception dates of the respective conflicts.
3The amendments in 1991 and thereafter did not change the standards set for conflicts already included by the Legislature.
-6- beginning of a series of Legislative amendments which narrowed the
number of veterans eligible for the benefit.
In 1998, the Legislature further tightened and narrowed the
class of eligible veterans by requiring service in “direct support”
of the military operation. The 1998 amendment included Operation
Restore Hope (Somalia, 1992) and Operation Joint Guard/Endeavor
(Bosnia, 1995). L. 1998, c. 49, § 2. For both of these military
operations, the Legislature chose once again to set forth
geographic limitations, as well as the 14-day length of service.
Notably, the “direct support” provision was only specified for
Operation Joint Endeavor/Guard (Bosnia 1995), but not Operation
Restore Hope (Somalia 1992). 4
Three subsequent legislative amendments in 2003, 2005 and
2017 also contained a geographic requirement as well as a direct
support requirement. These amendments added Operation
Northern/Southern Watch (Iraq no fly zone, 1992), Operation Iraqi
Freedom (2003), Operation Enduring Freedom (2001) and World Trade
Center Rescue and Recovery to the list. L. 2003, c. 197, § 5; L.
2005, c. 64, § 5; L. 2017, c. 134, § 1. For a veteran’s service to
qualify, the Legislature required for all four of these operations
4When the statute was amended in 2001 to include the much earlier 1958 Lebanon Crisis, the requirement of direct support was not included. L. 2001, c. 127, § 6. It is unclear whether the requirement was absent because eligible conflicts immediately subsequent to the 1958 Lebanon crisis did not require “direct support” (i.e., Vietnam, Lebanon (1982), Grenada, Panama). -7- either service in a specific geographic area or in the general
theater of operation. The Legislature also required the service
member provide direct support and set forth a minimum 14-day length
of service.
Thus, over time with successive military actions, the
Legislature chose to tighten the qualifying requirements for the
exemption. However, on January 9, 2018, the Governor signed into
law Chapter 367, enacting substantial changes to the Disabled
Veteran’s Property Tax deduction. L. 2017, c. 367. Chapter 367
amended N.J.S.A. 54:4-3.33a to create a subsection (a) to make
clear that the temporal periods as set forth for the various
conflicts as delineated by N.J.S.A. 54:4-8.10 still apply.
However, Chapter 367 also added subsection (b) to N.J.S.A. 54:4-
3.33a addressing the non-temporal requirements:
“active service in time of war” shall mean active service during a time period specified in the definition of “active service time of war” in [N.J.S.A. 54:4-8.10] but shall not require minimum length of continuous or aggregate service in any foreign country, on board any ship or naval vessel, or in any foreign airspace, and shall also not require that the service- connected disability suffered by a veteran shall have occurred during continuous or aggregate service in any foreign country, on board any ship or naval vessel, or in any foreign airspace.
[L. 2017, c. 367, § 2(b).]
-8- Finally, the Law provides that the Act shall take effect
immediately.
As stated, the Law was signed into effect on January 9, 2018
and is effective going forward from that date. While the law
seemingly broadens the eligibility for the exemption, the
Legislature made a clear and unmistakable decision not to have the
law apply retroactively to prior tax years. It certainly was
within the Legislature’s prerogative to make the law retroactive
if it so chose, but it did not. As a result, the court is
constrained to deny taxpayer’s Motion for Reconsideration since
the statute is not retroactive.
The statute at issue here requires service “in a theater of
operation and in direct support of that operation” for Operation
Enduring Freedom. N.J.S.A. 54:4-8.10(a). Other operations that
mention direct support use similar language. Id. Whether in
eliminating the geographic “theater of operation” requirement
through Chapter 367, the Legislature intended to effectively
eliminate the direct support requirement awaits a determination
from this court only when the issue presents itself. Likewise,
whether the amended statute also effectively abrogates the need
for direct support as discussed by this court in Wellington, Fisher
and Duncan, and the Appellate Division in Fisher, remains for
another day in which the issue squarely presents itself. The issue
is not now before the court.
-9- However, this decision certainly does not bar the taxpayer
from making an application for the 2018 tax year to his local
municipality for a determination of eligibility.
For the foregoing reasons, taxpayer’s Motion for
Reconsideration is denied.
-10-