N.J. TAX COURT

Fairfield Dev., c/o 46 Auto Imports v. Totowa Borough, etc.

TAXATION

New Jersey Law Journal

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Fairfield Dev., c/o 46 Auto Imports v. Totowa Borough, etc., Nos. 002875-2013, 002876-2013; Tax Court; opinion by Bianco, J.T.C.; decided September 30, 2013; revised, re-issued and approved for publication October 23, 2013. DDS No. 35-5-1742 [6 pp.]

Fairfield Dev., c/o 46 Auto Imports, and Anton & Simon Schweighardt operate income-producing properties in Totowa. In September 2012, Totowa served them with requests for information pursuant to N.J.S.A. 54:4-34, also known as Chapter 91. Each request included a cover letter, an income and expense statement form, instructions on how to complete the form, and what purported to be a copy of the statute.

The taxpayers then filed challenges to their 2013 property tax assessments. Totowa filed motions to dismiss the complaints for failure to respond to the Chapter 91 requests. Plaintiffs oppose the motions because Totowa did not include an exact copy of the statute.

Held: Because Totowa failed to include an exact copy of N.J.S.A. 54:4-34 with the Chapter 91 information requests sent to plaintiff-taxpayers, the borough's motions to dismiss their challenges to the 2013 assessments for failure to respond to the requests is denied.

To assist taxing authorities in determining the appropriate property tax liabilities, Chapter 91 requires income-producing properties to provide information, when requested, to the tax assessor. The statute places strict obligations on these requests. Assessors are required to (1) include a copy of the statute in their letters; (2) send the request by certified mail to the property owner; and (3) spell out that the consequences of failure to comply with the request is a bar to the taxpayer's right to appeal the assessment. A taxpayer who fails to respond to the assessor's request within 45 days may forfeit the right to appeal the assessment.

In these cases, consolidated for purposes of an opinion, Totowa did not include an exact copy of the statute.

SAIJ Realty Inc. v. Town of Kearny, 8 N.J. Tax 191 (Tax Ct. 1986), addressed Chapter 91's requirement to include a copy of the statute. It held that nothing in the character or context of Chapter 91 derogates the mandatory nature of the direction that the assessor furnish the taxpayer with a copy of the statute; nor does strict interpretation of such direction lead to inconvenience, absurdity or subversion of any legislative object. Because the assessor had failed to include the 1979 amendments to the statute, the court held he did not properly include a copy of the statute and denied the motion to dismiss.

Totowa cites ADP of New Jersey Inc. v. Parsippany-Troy Hills Twp., 14 N.J. Tax 372, 376 (Tax 1994), which found that the omission of a 14-word phrase in the statute was not a deathblow to the town's motion to dismiss because the taxpayer was told that a failure to respond would result in the loss of the right to contest the assessment despite the omission.

The Tax Court says that while the changes to the statute in these cases were minor, the assessor failed to follow the clear and simple requirement in 54:4-34. The statute's directive does not permit the assessor to modify its language, even when such modification may serve to clarify the statute's meaning or increase its readability. Moreover, the court should not have to evaluate the intent and effect of modified statutory language when 54:4-34 clearly requires that a copy be enclosed with a Chapter 91 request. The court therefore disagrees with ADP. It says 54:4-34 requires that the assessor enclose a copy of 54:4-34. Strict interpretation of such direction does not lead to inconvenience, absurdity or subversion of any legislative object. Totowa's motions to dismiss are denied.

For Fairfield Dev. and Anton & Simon Schweighardt — Kevin S. Englert (The Irwin Law Firm). For Totowa — Raymond B. Reddin (Piro Zinna Cifelli Paris & Genitempo).

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