Opinion
Docket No. 013548-2013
02-14-2014
Re: Mikhail v. Township of Howell
Wafaa Mikhail, Pro Se Lani M. Lombardi, Esq. Cleary, Giacobbe, Alfieri, Jacobs, L.L.C.
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
Mala Sundar
JUDGE
BY ELECTRONIC AND FIRST-CLASS MAIL
Wafaa Mikhail, Pro Se
Lani M. Lombardi, Esq.
Cleary, Giacobbe, Alfieri, Jacobs, L.L.C.
Block 138.09, Lot 34
Dear Ms. Mikhail and Ms. Lombardi:
This is the court's opinion with respect to defendant's motion to dismiss the above-captioned complaint as being untimely filed. Plaintiff opposed the motion on grounds she filed the complaint within 45 days from the date she received the County Board judgment.
Law is settled that the 45-day time limit to file a complaint to the Tax Court begins from the date of mailing of the County Board judgment, not from the date the judgment is received by the taxpayer. Therefore, plaintiff's complaint which is late by one day is untimely. * FACTS AND PROCEDURAL HISTORY
Plaintiff owns the above captioned property ("Subject") located in defendant ("Township"). For tax year 2013, the Subject was assessed at $425,400.
Plaintiff filed a timely complaint with the Monmouth County Board of Taxation ("County Board") challenging the 2013 assessment. By judgment dated June 28, 2013, the County Board affirmed the assessment. The judgment noted that it was "entered and mailed" on July 18, 2013.
Plaintiff certified that she received the judgment on July 24, 2013 by regular mail. She then filed an appeal from the County Board judgment to the Tax Court September 6, 2013. According to plaintiff, she had until September 7, 2013, and thus, her complaint was timely.
Plaintiff notes that the Township's counsel proceeded to deal with the complaint by propounding interrogatories (which plaintiff responded to), inspecting the Subject, and proposing settlement. ANALYSIS
N.J.S.A. 54:51A-9(a) provides that complaints seeking review of an adjudication or judgment of the county board of taxation shall be filed with the Tax Court within 45 days of the service of the judgment.
Pursuant to R. 8:4-1(a)(4), service of the judgment of the County Board, when by mail, is complete on the date the judgment is mailed. However, this is "subject to the provisions of R. 1:3-3." R. 1:3-3 states that "when service of a notice or paper is made by ordinary mail, and a rule or court order allows the party served a period of time after the service thereof within which to take some action, 3 days shall be added to the period."
Here, the County Board judgment was mailed July 18, 2013. Forty-five days from this date is September 1, 2013. That day being a Sunday, the deadline would be September 2, 2013. Adding three days to this date provides September 5, 2013 as the deadline for filing the complaint in Tax Court. Here, the complaint was filed one day late.
The Township claims that the complaint was filed "approximately fifty (50) days" after the County Board judgment was mailed, thus, violated the time limits. This claim lends to a belief that the complaint was five days late. The assertion is incorrect since it fails to account for the weekend and the three days for mailing.
Plaintiff contends that the deadline to file was September 7, 2013. This date is 45-days from the date she received the County Board judgment. Thus, it appears that plaintiff's argument is that the 45-day time limit begins to run from the date of receipt of the County Board judgment. However, the plain language of the statute indicates that the controlling date is the "service" of the judgment, not its receipt. This is contrast with the term "filing" of the complaint with the Tax Court. A filing requires actual receipt by the court of the paper to be filed. R. 1:5-6(b)(7); R. 8:3-1(a). See also Pressler, Current New Jersey Court Rules, comment 2 on R. 1:5-6 ("It is clear that unlike service, which is complete upon mailing, filing can only be effected by the receipt of the filed paper by the designated office.").
Plaintiff's computation of September 7, 2013 as the filing deadline does not appear to include the three days for mailing.
--------
Filing deadlines are considered statutes of limitation in the Tax Court and are strictly enforced. Strict adherence to statutory time limitations is essential in tax matters, borne of the exigencies of taxation and the administration of local government. Courts have consistently enforced the strict statutory limitations for the timely filing of appeals by both taxpayers and taxing districts even if the complaint was late by one day. See Mayfair Holding Corp. v. Township of North Bergen, 4 N.J. Tax 38, 41 (Tax 1982) (dismissing plaintiff's appeal for lack of jurisdiction because it was filed one day after the last day prescribed by statute for filing the appeal); Sun Life Assurance Co. of Canada v. City of Orange, 2 N.J. Tax 25, 28 (Tax 1980) (denying plaintiff's motion to relax the statutory filing deadlines even with the adversary's consent).
Plaintiff notes that it is unfair to deny her day in court at this late hour. She states that the Township required her to expend time and money to respond to interrogatories, schedule inspection of the Subject, proffer her comparables, provide an appraisal, and discuss settlement, and thus, its instant motion for dismissal of her complaint due to untimely filing is improper.
While it may have been judicious for the Township to have determined the timeliness issue prior to expending time and resources of developing the merits of the case, a claim of lack of a court's subject matter jurisdiction (due to an untimely filing of a complaint) can be raised at any time even in at the appellate stage. Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000). Indeed, even if the Township did not raise the issue, the court could, on its own, "properly" raise the issue of the untimely filing of the plaintiff's complaint, and thus of the court's lack of subject matter jurisdiction to decide the merits of the case. See Prime Accounting Dep't v. Township of Carney's Point, 421 N.J. Super. 199, 212 (App. Div. 2011), rev'd in part on other grounds, 212 N.J. 493 (2013). CONCLUSION
For the aforementioned reasons, the Township's motion to dismiss is granted. Plaintiff's 2013 complaint is dismissed with prejudice. An Order and Judgment in accordance with this opinion will be issued.
Very truly yours,
Mala Sundar, J.T.C.