NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
------------------------------------------------------x RATAN AC LLC, : : TAX COURT OF NEW JERSEY Plaintiff, : DOCKET NO: 000923-2023 : v. : : CITY OF ABSECON, : : Defendant. : : ------------------------------------------------------x
Decided: January 18, 2024.
Jennifer Robin Jacobus for plaintiff (Jacobus & Associates, LLC).
Kyle D. Weinberg for defendant (Blaney, Donohue & Weinberg, PC).
CIMINO, J.T.C.
I. INTRODUCTION
Certified mail is required for service of a Chapter 91 request for property
income information. A tax appeal is barred for failing to respond to the request.
When a request is not handled in accordance with certified mail standards, the appeal
can go forward.
The Absecon City Tax Assessor sent a Chapter 91 request seeking income
information for taxpayer’s Absecon property via regular mail on June 15, 2022,
without any response. On July 27, 2022, the Assessor resent the Chapter 91 request
-1- directing delivery as certified mail. A service of the United States Postal Service,
certified mail confirms delivery with a signature and alerts the recipient of the
importance of the correspondence. The request was sent to the taxpayer’s business
address of 2600 Tonnelle Avenue, North Bergen, New Jersey 07047. The electronic
tracking information provided by the Postal Service indicates delivery on July 30,
2022. However, the green return receipt signature card was not returned to the
Assessor. The taxpayer asserts it did not receive either the regular or certified mail.
Further inquiry of the Postal Service for the delivery receipt revealed a signature of
“2600” appearing twice. 1
The municipality moves to limit the taxpayer’s appeal for failure to comply
with the Chapter 91 request. The taxpayer opposes the motion. Both parties waive
oral argument.
II. WHAT IS CHAPTER 91?
Taxpayers in New Jersey have long been required to “account” for their real
property. See, e.g., Acts of the Gen. A. of the Province of N.J. ch. 111, § 4 (John
Kinsey 1732); L. 1798, c. 805, § 1; Rev. 1846 tit. 35, ch. 1, § 1; L. 1903, c. 208, § 8;
L. 1918, c. 236, § 403; R.S. 54:4-34 (1937). In 1960, this accounting was expanded
to explicitly include income generated. L. 1960, c. 51, § 29. By gathering and
1 The typed address accompanying the “2600” signature indicated a slightly different address adding a “STE 1”, generally interpreted to mean suite 1, to the street address. See Domestic Mail Manual § 602.1.4.2(e). -2- analyzing income information, an assessor should be able to reach more accurate
assessments.
As the statute existed prior to 1979, the taxpayer had no incentive to provide
information. “[T]he property owner [was] not subject to any penalty for not
disclosing property income information.” S. Revenue, Fin. & Appropriations
Comm. Statement to S. 309 (Jan. 26, 1978). The Legislature had a “problem” with
a “property owner . . . free to appeal the assessment, notwithstanding his refusal to
provide information which would . . . affect[] the valuation, and, perhaps, avoid[]
the appeal from the assessment.” Ibid. “Further . . . the assessor [had] no access to
information on which the appellant [was] basing his appeal and thus the assessor
[was] unprepared to testify in argument to the appellant’s representations.” Ibid. If
a taxpayer could withhold information until the time of appeal, the assessor would
be “required either to prepare a second valuation of the property – a tremendous
waste of valuable time and resources – or to defend the original valuation on the
taxpayer’s appeal.” Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 7
(1988).
To remedy this problem, Chapter 91 was adopted in 1979 to limit a taxpayer’s
right to appeal when a request for income information is ignored. L. 1979, c. 91.
In relevant part, N.J.S.A. 54:4-34, as amended by Chapter 91, now reads:
Every owner of real property of the taxing district shall, on written request of the assessor, made by certified mail, -3- render a full and true account of his name and real property and the income therefrom, in the case of income- producing property, . . . and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request, . . . 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 fair 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 . . . . In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section.
[N.J.S.A. 54:4-34 (emphasis added).]
The assessor has three obligations when sending a Chapter 91 request, namely, “(1)
the letter must include a copy of the text of the statute; (2) it must be sent by certified
mail to the owner of the property; and (3) it must spell out the consequences of
failure to comply with the assessor's demand, namely a bar to the taxpayer's taking
of an appeal from its assessment.” 2 Southland Corp. v. Township of Dover, 21 N.J.
Tax 573, 578 (Tax 2004). See also Thirty Mazel LLC v. City of East Orange, 24
N.J. Tax 357, 362 (Tax 2009); Fairfield Dev. v. Borough of Totawa, 27 N.J. Tax
306, 308 (Tax 2013).
2 As to spelling out the consequences, there is some disagreement. Town of Phillipsburg v. ME Realty, LLC, 26 N.J. Tax 57, 69 n.11 (Tax 2011); James-Dale Enters., Inc. v. Township of Berkeley Heights, 26 N.J. Tax 117, 124-25 (Tax 2011); Pisani v. Township of Wayne, 13 N.J. Tax 412, 414-15 (Tax 1993). -4- If the taxpayer fails to respond to a municipality’s written request for
information within forty-five days, an appeal “is limited in its scope to the
reasonableness of the valuation based upon the data available to the assessor . . . .
Encompassed within this inquiry are (1) the reasonableness of the underlying data
used by the assessor, and (2) the reasonableness of the methodology used by the
assessor in arriving at the valuation.” Ocean Pines, 112 N.J. at 11. The proceeding
is thus limited to what is commonly referred to as a reasonableness hearing.
“A reasonableness hearing . . . does not include plenary proofs as to the value
of the property under appeal but only proofs as to whether the assessment imposed
by the assessor was reasonable ‘in light of the data available to the assessor at the
time of valuation.’” Lucent Technologies, Inc. v. Township of Berkeley Heights, 24
N.J. Tax 297, 308 (Tax 2008) (quoting Ocean Pines, 112 N.J. at 11). “[T]he taxpayer
is precluded on appeal from expanding the record beyond the information available
to the assessor at the time of valuation. The property's financial information, expert
opinion as to value, comparable sales not used by the assessor, or any other potential
evidence that could otherwise have been available, had the Chapter 91 request been
timely answered, is barred.” H.J. Bailey Co. v. Township of Neptune, 399 N.J.
Super. 381, 387, 24 N.J. Tax 268, 274 (App. Div. 2008) (citations omitted). See also
Ocean Pines, 112 N.J. at 11 (“in light of the data available to the assessor”). Since
a reasonableness hearing is “sharply limited in both its substantive and procedural
-5- aspects,” it “may be disposed . . . in summary fashion, without the taking of
testimony.” Ocean Pines, 112 N.J. at 11, 12. With these limitations, a taxpayer faces
a significant hurdle overcoming the presumption of correctness which attaches to
every assessment. Pantasote Co. v. City of Passaic, 100 N.J. 408, 412 (1985)
(presumption); Clinton Fountain Motel, L.P. v. Township of Clinton, 18 N.J. Tax
486, 488 (App. Div. 1999) (burden). There is little doubt a reasonableness hearing
is something less than the plenary hearing guaranteed in the normal course of filing
a tax court complaint. Being limited to a reasonableness hearing “essentially closes
the courthouse door on the taxpayer’s right to appeal an assessment.” Southland, 21
N.J. Tax at 579.
The provisions of Chapter 91 are read narrowly and strictly construed against
the municipality due to the severity of consequence faced by the taxpayer. The
potential “limitation on a taxpayer’s appeal rights is material, substantial, and
significant. As a result, our courts have been reluctant to grant Chapter 91 motions
unless a municipality can demonstrate strict compliance by the assessor with the
letter and purpose of the statute.” J & J Realty Co. v. Township of Wayne, 22 N.J.
Tax 157, 163-64 (Tax 2005) (citing numerous other decisions).
-6- III. WHAT IS CERTIFIED MAIL?
Certified mail is a product of the United States Postal Service that provides
signed proof of delivery. 3 Green v. City of East Orange, 21 N.J. Tax 324, 333 (Tax
2004). Domestic Mail Manual (DMM) § 503.3.1.1 (2023). See also 39 C.F.R. §
111.1 (incorporating DMM by reference into the Code of Federal Regulations);
Postal Service Manual (PSM) § 168.1 (1978) (manual in effect at time of enactment
of Chapter 91); 39 C.F.R. § 111.1 (1978) (incorporating PSM by reference into Code
of Federal Regulations). See also Ravenscroft Homeowners Assoc., Inc. v.
Derroisne, 473 N.J. Super. 278, 281 (Law Div. 2021) (discussing incorporation by
reference of DMM into regulations). Contrast this with a certificate of mailing,
another product of the United States Postal Service that provides proof of mailing,
but not proof of delivery. DMM § 503.5.1.1. See also PSM § 165.1. 4
3 Certified mail can also provide proof of mailing if a sender’s receipt is requested by presentation to a U.S. Postal Service employee. DMM § 503.3.2.1(d); PSM § 168.44(d). See also N.J.S.A. 54:49-3.1(a) (accepting certified mail sender’s receipt as proof of mailing of tax return). 4 A certificate of mailing as a proof of mailing was not mentioned in the New Jersey statutes until 1999. L. 1999, c. 340, § 2. Compare 1959 Cal. Stat. ch. 638, § 2; 1967 Minn. Laws ch. 463, § 5; 1967 Haw. Sess. Laws act 271, § 1; 1968 N.Y. Laws ch. 30, § 3; 1969 Ill. Laws act 76-1111, § 1; 1969 Tenn. Pub. Acts ch. 202, § 2; 1969 N.H. Laws ch. 359, § 2; 1969 Miss. Laws ch. 54, § 10; 1969 Ind. Acts ch. 319, § 2; 1969 Me. Laws ch. 182; 1971 Mont. Laws ch. 369, § 12; 1971 Mo. Laws ch. 665, § 142.10; 1972 Ariz. Sess. Laws ch. 157, § 3.
-7- Prior to 1955, a signed proof of delivery was obtained by sending
correspondence via registered mail, a service available since 1855. Pub. L. No. 33-
173, § 3, 10 Stat. 641, 642 (1855). However, this type of service is expensive and
slow since it is handled outside the normal mail stream with a detailed chain of
custody and additional security. 5 DMM § 503.2.1.1 (chain of custody). To reduce
the time and cost entailed by using registered mail, the Postmaster General
introduced certified mail service in 1955. New Postal Service, N.Y. Times, Apr. 27,
1955, at 34. With certified mail, a signed proof of delivery is still obtained, but the
mail moves through the regular mail stream, thus reducing time and cost. DMM §
503.3.1.1 (in regular mail stream); DMM app. 3 (comparison of costs). Shortly after
introduction, many states including New Jersey amended their statutes to provide
whenever registered mail is required, certified mail would suffice. N.J.S.A. 1:1-2;
L. 1955 c. 226, § 1; 1955 Cal. Stat. ch. 1668, § 1; 1955 Ala. Laws no. 411, § 1; 1955
Ohio Laws 1164; 1955 S.C. Acts no. 234, § 69; 1955 N.H. Laws ch. 242, § 1; 1955
Wis. Sess. Laws ch. 448, §§ 1, 2; 1955 Conn. Pub. Acts no. 22, § 1; 1955 Mass. Acts
ch. 683; 1956 Ariz. Sess. Laws ch. 30, § 1; 1956 Mich. Pub. Acts no. 147.
The procedures for delivery of registered mail and certified mail are the same.
DMM § 508.1.1.7. The current procedure is the same as when Chapter 91 was
5 Registered mail is so secure that certain classified documents with the marking of “secret” can be sent domestically via this service. 32 C.F.R. § 2001.46(c)(2). -8- enacted in 1979. See PSM §§ 168.51, 161.41. Before physically accepting a
certified letter, the recipient can view the sender’s name and address so long as the
letter is held by a Postal Service employee. DMM § 508.1.1.7(a); PSM §§ 161.41,
168.51. The letter may not be opened or given to the recipient before the recipient
signs, and the signatory’s name is legibly printed upon the applicable form, label or
data collection device.6 DMM § 508.1.1.7(b); PSM §§ 161.41, 168.51. See also
22429 Postal Bulletin 42 (Nov. 26, 2015) (amendments to Handbook M-41 allowing
signature on data collection device); 39 C.F.R. § 211.2(a)(3) (handbooks as
regulations). A record of the delivery which includes the recipient’s signature is
maintained by the Postal Service. DMM § 503.3.1.1; PSM § 168.65. While basic
certified mail only has a signed delivery receipt, a sender can request a return receipt
(either a paper green card or electronic) as an extra service for an additional fee.
DMM § 503.3.1.1. See also PSM § 168.44(b).7 8
To be clear, a return receipt is an optional item that is in addition to the
delivery receipt. DMM §§ 503.6.1.1, 503.1.4.1; PSM § 165.241(a). As noted by
6 In addition, a Postal Service employee can request an acceptable form of identification. DMM §508.1.1.7(c); PSM §§ 161.41, 168.51. 7 For the electronic return receipt, the signature captured for the delivery receipt is used to generate the electronic return receipt. See 22137 Postal Bulletin 43 (Sept. 16, 2004). 8 The return receipt can also provide the recipient’s actual delivery address. DMM § 503.6.1.1; PSM § 165.241(a). -9- Judge Bianco in Green, “[i]n the context of certified mail, it is important to note that
there is a difference between the delivery receipt (which is maintained by the USPS)
and a return receipt (which is returned to the sender).” Green, 21 N.J. Tax at 334.
See also Columbus Prop. Inc. v. ISKS Realty Corp., 621 N.Y. Supp. 2d 277, 279
(N.Y. Civ. Ct. 1994). The bottom line is certified mail, whether a return receipt is
requested or not, requires a signature. 9
IV. AS APPLIED TO THIS CASE
A Chapter 91 request for income information was first sent regular mail with
no response. Apparently realizing insufficient service for purposes of invoking
Chapter 91, the assessor resent the request as certified mail on July 27, 2022.
According to the Postal Service records, it was delivered to an individual at 2600
Tonnelle Avenue, Suite 1, North Bergen, New Jersey 07047 on July 30, 2022. The
taxpayer denies receipt of both the certified request as well as the previously mailed
regular mail request.10 No return receipt green card was returned by the Postal
9 If no one is available to sign, notice is provided there is correspondence awaiting a signature. DMM § 508.1.1.7(f); PSM §§ 161.44, 168.51. 10 In Green, the return receipt card was not signed. 21 N.J. Tax at 333. This court suggested that the municipality could have attempted to obtain a copy of the delivery receipt to see if it was signed. Id. at 336. This court also noted that while Chapter 91 does not require the purchase of a return receipt, “the utilization of return receipt service along with certified mail service aids in establishing actual receipt.” Id. at 334. This is critical when the Postal Service no longer has the delivery receipt. Postal Operations Manual § 813.24 (2-year retention); 39 C.F.R. § 211.2(a)(2) (manual as regulation). -10- Service. The delivery receipt on file with the Postal Service indicates “2600” written
twice. This does not constitute the signature and printed name of the recipient as
required by Postal Service regulations. See DMM § 508.1.1.7(b); PSM §§ 161.41,
168.51.
A letter sent certified mail serves two purposes. First, it provides proof of
delivery by obtaining the signature of the recipient. Second, by signing for the letter,
the recipient is put on notice of something important requiring immediate attention.
The Legislature on many occasions mandated certified mail for notices having
significant impact. See, e.g., N.J.S.A. 54:50-6.1 (certain tax assessments); N.J.S.A.
40:55D-12 (notice of zoning application to adjoining property owners); N.J.S.A.
2A:18-61.2 (certain eviction notices); N.J.S.A. 39:3-40.3 (notice by municipality of
sale of impounded vehicle).
The act of signing (or being asked to sign) drives home the point the recipient
will be held accountable for failing to act, or at the very least cannot be heard to
complain if an adverse action occurs. “[I]t is common sense that an individual would
take special notice of a communication that required his signature upon receipt.”
First Am. Bank of Md. v. Shivers, 629 A.2d 1334, 1343-44 (Md. Ct. Spec. App.
1993). “A written document, particularly one sent by certified mail, conveys a
message that the contents of the document are important.” Harrison v. Employment
-11- Appeal Bd., 659 N.W.2d 581, 587 (Iowa 2003). The recipient is likely to “more
deliberately reflect on his options and the ramifications of his decision.” Ibid.
There is no proof of a signature request alerting the taxpayer a significant legal
notice was awaiting its attention. All we know is someone wrote “2600” two times
and the record from the post office asserting the certified letter was left with an
individual at 2600 Tonnelle Avenue, Suite 1. The municipality relies upon the
tracking information of the Postal Service. However, certified mail has always
required more than mere delivery. Certified mail is more than first class mail with
tracking. 11 A signature along with the name of the recipient establishing to whom
the letter was delivered is required. DMM § 508.1.1.7(b); PSM §§ 161.41, 168.51.
Requiring a signature serves an important benefit to both parties. For the sender, it
proves delivery. For the recipient, it raises awareness of the potential impact of the
correspondence.
“Certified mail” is the technical name for signature verified delivery service
provided by the Postal Service. “[T]echnical terms, or terms of art, having a special
or accepted meaning in the law, shall be construed in accordance with that meaning.”
Lee v. First Union Bank, 199 N.J. 251, 258 (2009). See also N.J.S.A. 1:1-1. It is
presumed at the time of adoption of Chapter 91, the Legislature was familiar with
11 Tracking without a signature is not available for first class mail. It is available for other mail such as priority mail. DMM § 503.1.4.1. -12- what “certified mail” entailed. Both then and now, the recipient must sign for the
notice. PSM §§ 161.41, 168.51. See also DMM § 508.1.1.7(b) (current version). If
the signature on the delivery receipt is not legible, it must be legibly printed on the
receipt. Ibid. If the Legislature wanted to require something less, it would have said
so. The Legislature could have chosen to have a Chapter 91 request merely sent by
regular mail. Due to its importance, a Chapter 91 request requires a signature, not
merely an assertion of delivery by an anonymous mail carrier. Seeking a signature
puts the recipient on notice of the importance of the request.
The Legislature reasserted the necessity of a signature when it expanded the
definition of certified mail in 2015 to include private express carrier services
providing a confirmation of mailing. L. 2015, c. 251, § 1; N.J.S.A. 1:1-2. The
requirements of the confirmation of mailing mirror the information provided by the
Postal Service. Namely, the confirmation of mailing “shall include, at a minimum
confirmation of” fact of mail[ing], compare DMM § 503.3.2.1(d); time of mailing,
compare DMM § 503.3.2.1(d); date and time of delivery, compare DMM §
503.3.1.1; attempted delivery, compare DMM § 503.3.1.1; signature, compare
DMM § 508.1.1.7(b); or similar information for confirmation or proof associated
with the delivery service, compare, e.g., DMM §§ 508.1.1.7(b) (legibly printed name
of recipient), 503.6.1.1 (delivery address). L. 2015, c. 251, § 1; N.J.S.A. 1:1-2.
-13- This court is not suggesting a recipient of certified mail can avoid the negative
consequences of failing to respond by not signing for certified mail. This case is
unlike Towne Oaks at South Bound Brook v. Borough of South Bound Brook, 326
N.J. Super. 99 (App. Div. 1999), where service of the request was valid when sent
both regular mail and certified mail, and the certified mail was returned as unclaimed
when no one signed for delivery despite repeated notices left by the Postal Service.
Id. at 101. A taxpayer cannot thwart the process by failing to provide a signature.
Ibid. In the case now before the court, there is no evidence taxpayer avoided signing
for the request or was even asked to sign for the request. Rather, the evidence points
to the Postal Service failing to comply with its regulatory mandate to provide
certified mail service.
The cause of the problem is a third party, the Postal Service, failing to ensure
delivery according to the certified mail standards. Chapter 91 dictates the use of
certified mail to effectuate valid service. The taxpayer did not refuse to accept the
certified mail. The municipality did not fail to send the notice by certified mail.
When neither party is blameworthy, “deciding [the municipality’s] motion requires
a balancing of the impact on [taxpayer] of the granting of the motion against the
impact on [the municipality] and the assessing process of the denial of the motion.”
J & J Realty, 22 N.J. Tax at 164. The balancing requires consideration of the case
law’s deference to allowing an appeal to fulfill taxpayer’s right to appeal tax
-14- assessments. Ibid. “When an assessor has failed to receive a response to a request
for information, the impact on the [municipality] and the assessor resulting from
denial of a Chapter 91 motion is of a far lesser magnitude than the impact . . . on a
taxpayer’s appeal rights resulting from the granting of the motion.” Id. at 165. The
failure of a third party, the Postal Service, to deliver the notice in accordance with
the dictates of the Legislature cannot be shifted to the taxpayer. Without the signed
return receipt or returned unclaimed Chapter 91 request, the solution is to resend the
certified mail request. The municipality paid for certified mail service and
unfortunately got something less. The failure to follow certified mail regulations
should be raised with the local postmaster. 12
A taxpayer surviving a Chapter 91 motion does not win anything but the right
to contest an assessment in court. A challenge to an assessment could also benefit
the municipality and other taxpayers. In most cases the court is free to increase as
well as decrease the assessment. Campbell Soup Co. v. City of Camden, 16 N.J.
Tax 219, 226-27 (Tax 1996). In other words, the court can peg the assessment at the
correct amount. This comports with the overarching goal of Chapter 91 of obtaining
information so accurate assessments can be reached.
12 Technically, a refund would be due for the failure of the Postal Service to provide certified mail service. DMM § 604.9.2.3(e). -15- V. CONCLUSION
For the foregoing reasons, the City’s motion to dismiss is DENIED.
-16-