Opinion
Docket No. 004206-2012
12-19-2012
Re: 685 LLC v. Borough of Paramus
JUDGE
Eileen W. Toll
301 South Livingston Ave.
Livingston, New Jersey 07039
Marc A. Raso, Esq.
609 Franklin Avenue
Nutley, New Jersey 07632
Dear Counsel:
This matter was opened to the court on motion by Borough of Paramus ("defendant" or "Borough") to dismiss the complaint of 685 LLC, ("plaintiff' or "taxpayer") for failure to respond to the tax assessor's request for financial information pursuant to N.J.S.A. 54:4-34.
The request, commonly known as a "Chapter 91 request," was sent by the assessor to the taxpayer in this matter at the address on file in the assessor's office, simultaneously via certified mail and regular mail. The certified mail was returned to the assessor marked "RETURN TO SENDER, ATTEMPTED - NOT KNOWN, UNABLE TO FORWARD" on the envelope.
According to the assessor, the request mailed via regular mail was never returned to his office as undelivered. However, plaintiff contends that the request mailed via regular mail was never received. The court finds that the taxpayer did not received adequate notice of the assessor's request. For the reasons that follow, defendant's motion is denied.
FINDINGS OF FACT AND PROCEDURAL HISTORY
On March 7, 2012, plaintiff filed a complaint, which was a direct appeal to the Tax Court, regarding the assessment for the 2012 tax year for the property located at Route 17, Paramus, New Jersey, designated on the Borough's tax map as Block 6017, Lot 16 (the "subject property"). Defendant filed the within motion to dismiss the appeal for failure to respond to the assessor's Chapter 91 request.
In support of the motion to dismiss, the Borough's tax assessor, James Anzevino, certifies that on or about October 1, 2011, he sent a request for income and expense information to the owner of the subject property by certified mail and included a copy of N.J.S.A. 54:4-34. Appended to Mr. Anzevino's certification is a copy of a certified mail receipt, as well as an Income and Expense Statement for the subject property. The certified mail receipt contains the notation "RETURN TO SENDER - ATTEMPTED NOT KNOWN - UNABLE TO FORWARD."
In the United States postal Service Manual, of which the court takes judicial notice, the non-delivery designation of "Attempted-Not Known" is defined as "delivery attempted, addressee not known at place of address."
The borough also submitted a supplemental certification of Mr. Anzevino in which he details the procedure that he follows when sending out Chapter 91 requests. He states that:
[T]he mailing address that is used for mailing the Chapter 91 request letters is generated from a list that produces the tax bills and appears in the annual tax book. The addresses on that list are the addresses that are recorded and on file with Bergen County Registrar's office. Unless my office receives notice that there has been a change as to the property owner's address, the letter containing the Chapter 91 request (the "letter"), is prepared and is sent to the address that my office gets from that list.Mr. Anzevino further certifies that he personally brought the letters (both certified and regular) addressed to 685, LLC, 200 Robbins Lane, Jericho, NY 11753 to the post office in Paramus. According to the tax assessor, the letter that was mailed via certified mail was returned to his office as undelivered. The Chapter 91 letter mailed contemporaneously via regular mail was never returned as not being delivered.
In opposition to the motion to dismiss, plaintiff submitted the certification of Robert Villency, the president of plaintiff, 685, LLC. Mr. Villency certifies that he did not receive the Chapter 91 request sent via regular or via certified mail. As evidence he submits a copy of the USPS.com print-out of the certified mail number shown on Exhibit A attached to the certification, which indicates that the certified mail was returned to the sender. He also claims that, on October 1, 2011, at the time defendant sent the Chapter 91 request, addressee 685, LLC, 200 Robbins Lane, Jericho 11753, received all mail properly addressed to plaintiff. To support this claim, he submits copies of three (3) documents, dated and received both before and after the chapter 91 request was sent. Mr. Villency also certifies that his employees are all acquainted with his mailman and have never refused to sign for any mail, certified, or registered, received in his office. Mr. Villency attributes the non-delivery of the Chapter 91 request to an improperly addressed envelope or error on the part of the USPS. The plaintiff claims as well that the address window on the returned certified mail envelope is obscured and therefore fails to provide proof of proper mailing.
The documents include a mailing by the State of New Jersey and one from New York State. The third is a copy of the estimated tax bill dated August 1, 2011.
During oral argument, counsel for defendant explained that the Chapter 91 letter request is folded and placed in what is known as a window envelope. For that reason, the assessor is unable to provide a copy of the envelope as addressed.
CONCLUSIONS OF LAW
The purpose of the Chapter 91 request is to assist the assessor's collection of information for use in establishing value for an income producing property, which value is generally determined by the capitalization approach. Delran Holding Corp. v. Delran Township, 8 N.J. Tax 80, 83 (Tax 1985). The governing statute, N.J.S.A. 54:4-34, reads as follows:
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 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.
The financial information which the assessor seeks by way of a Chapter 91 request is designed "to assist the assessor in the first instance, to make the assessment and thereby . . . to avoid unnecessary expense, time and effort in litigation." Ocean Pines, supra, 112 N.J. at 7, quoting Terrace View Gardens v. Township of Dover, 5 N.J. Tax 469, 474-75 (Tax 1982), aff'd, 5 N.J. Tax 475 (App. Div.), certif. denied, 94 N.J. 559 (1983).
As established by statute, no tax appeal shall be heard in the case of a taxpayer who fails to respond to a Chapter 91 request. Given the severity of the sanction, the courts require that the municipality strictly adhere to the statutory requirements. The property owner must be adequately notified of its statutory obligations. In Great Adventure, Inc. v. Township of Jackson, 10 N.J. Tax 230, 233 (App. Div. 1988), the court stated that "the severity of the penalty for noncompliance provided by N.J.S.A. 54:4-34, namely, the taxpayer's loss of his right to appeal the assessment, requires a strict construction of the statute." As part of the assessor's obligation, the Chapter 91 request must be framed in language that is both clear and unequivocal so that the taxpayer may understand its obligation to respond. Cassini v. Orange City, 16 N.J. Tax 438 (Tax 1997).
The only issue in this case is whether the assessor strictly complied with the statute's mailing requirement, specifically, whether the Borough of Paramus properly mailed its Chapter 91 request to 685, LLC. Plaintiff argues that the controlling law is found in Hammond v. Paterson, 145 N.J. Super. 452 (App. Div. 1976). In Hammond, plaintiff was injured when he tripped over a manhole negligently maintained by defendant and sent a notice of claim to the city pursuant to the Tort Claims Act. Plaintiff sent the notice solely by ordinary mail despite the language of the statute which authorized that notice be sent by certified mail. N.J.S.A. 59:8-10. The lower court granted defendant's motion for summary judgment since plaintiff had failed to give the notice required by certified mail delivery. The court also cited to N.J.S.A. 59:8-11 of the Act which expressly provides that "proof of mailing may be made in the manner prescribed by the Rules of Court," of which R.1:5-4 permits service by ordinary mail only where the addressee "refuses to claim or to accept delivery."
Finding that the plaintiff had failed to deliver the notice to defendant, the Appellate Division held that "when a statute . . . or a contract requires notice by certified mail, no presumption of receipt arises from mailing by ordinary mail. The very reason for providing for certified mail or actual receipt is to avoid such a presumption." Hammond v. City of Paterson, supra, 145 N.J. Super at 455. Plaintiff relies on this holding to support the proposition that fair notice of their obligations under N.J.S.A. 54:4-34 was not adequately received.
Defendant relies on Towne Oaks v. South Bound Brook Borough, 326 N.J. Super. 99 (App. Div. 1999). certif. denied, 164 N.J. 188 (2000) for relief. In Towne Oaks, the assessor sent a chapter 91 request by regular and certified mail to the same address. The certified mail was returned as "unclaimed" after the three attempts at delivery by the post office and the regular mail was not returned. Unlike the case at hand, the taxpayer in Towne Oaks did not deny the delivery of the request sent by regular mail. The Appellate Division held that the taxpayer received adequate notice of the tax assessor's Chapter 91 request for information, since the request was sent by both certified and regular mail to the same address, even though the certified mail was returned as "unclaimed." Specifically, the Court agreed with defendant's argument that "[e]lsewise, . . . property owners could avoid the requirements of N.J.S.A. 54:4-34 and its consequences by simply refusing the certified mail." Id. at 104.
There, it was undisputed that the "mail was properly addressed, contained sufficient postage, showed the proper return address, and was properly deposited with the post office" therefore it was "presumed that the plaintiff received the notice sent by regular mail." Id. at 101, citing to SSI Medical Service v. State Department of Human Services, 146 N.J. 614 (1996) (holding that "a presumption arises that mail properly addressed, stamped, and posted was received by the party to whom it was addressed"). See also Hackensack v. Rubinstein, 37 N.J. 39, 47 (1962) (holding that "[w]hen interpreting . . . statutes authorizing service of notice by mail, courts have generally held service complete upon mailing if the envelope is properly addressed and contains sufficient postage. This is true whether the question involved service by registered mail or ordinary mail.")
In the instant matter, the Borough did not fulfill its statutory obligation of sending the Chapter 91 request by certified mail. The non-delivery designation "RETURN TO SENDER, ATTEMPTED - NOT KNOWN, UNABLE TO FORWARD" runs afoul the requirements of proper mailing under our established case law and the requirements of N.J.S.A. 54:4-34. Its definition, "delivery attempted, addressee not known at place of address," is not akin to the delivery designation "unclaimed," where the "addressee abandoned or failed to call for mail."Under the facts presented, it is not clear whether the Borough properly mailed the Chapter 91 to the Taxpayer; specifically, whether the mail was properly addressed. Therefore, unlike Towne Oaks, we are unable to find a presumption that the plaintiff received the notice sent by regular mail.
USPS Manual, updated November 5, 2012.
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The court finds no credibility issue from the Plaintiff given that it was the USPS office that provided the designation, "RETURN TO SENDER, ATTEMPTED - NOT KNOWN, UNABLE TO FORWARD." The concerns with taxpayers avoiding the requirements of N.J.S.A. 54:4-34 and its consequences by simply refusing the certified mail, like in cases where mail is "unclaimed," are not relevant to the instant case.
For the foregoing reasons, the motion is denied.
Very truly yours,
______________________
Christine Nugent, J.T.C.