Opinion
Docket No. 005518-2012 Docket No. 005520-2012
11-16-2012
Milric Plaza, LLC v. Wall Twp. Route 34 Corporate Park LLC v. Wall Twp.
GAIL L. MENYUK
JUDGE
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE TAX COURT COMMITTEE ON OPINIONS
William Sitar, Esq.
Sitar Law Offices, LLC
Parkway Centre
1481 Oak Tree Road
Iselin, NJ 08830
Lani M. Lombardi, Esq.
Cleary, Giacobbe, Alfieri and Jacobs, LLC
5 Ravine Drive
P.O. Box 533
Matawan, NJ 07747
Dear Counsel:
These matters come before the court on defendant's motions to dismiss the complaints because of the failure of both plaintiffs to respond to a request for income and expense information made pursuant to N.J.S.A. 54:4-34 ("Chapter 91"). This letter constitutes the court's decision in both motions. The facts are identical in these cases, as is basis of the opposition by the respective plaintiffs. For the following reasons, the motions are denied.
Each motion was supported by a certification of the defendant's deputy tax assessor and principal assessing clerk. On August 22, 2011, the deputy tax assessor prepared and the principal assessing clerk mailed by certified mail, requests for income and expense information to both plaintiffs at their respective addresses of record. Each request contained a covering letter signed by the assessor dated August 22, 2011. The block and lot numbers of the property for which the information was sought appeared on the mailing label above each plaintiff's address, and the text of the letter indicated that the income and expense information sought was for the property whose block and lot appeared on the mailing label. The covering letter directed the taxpayer to use the enclosed "Annual Statement of Income and Expense for Income Producing Properties" for the reporting of the information, which would be used for the 2011 assessment year. The enclosed Annual Statement form stated that the period to be reflected in the completion of the statement was the annual period beginning January 1, 2010 and ending on December 31, 2010. Finally, the text of the statute was set out in full in the letter, thereby meeting the requirement of N.J.S.A. 54:4-34, that a copy of the statute be included with the request. Both taxpayers received the respective request, as indicated by the signed and dated certified mail return receipt cards. The deputy assessor certified that neither plaintiff responded to the request.
Plaintiffs do not deny that they received the request and that they failed to respond to the request. Rather, they contend that the defendant's request was deficient because the covering letter stated that the information was to be used for the 2011 assessment year, while the January 10, 2011 assessment date for the 2011 assessment year had already passed at the time that the request was made. See N.J.S.A. 54:4-35, requiring the assessor to file the assessment list with the county board of taxation by January 10 of the tax year. Plaintiffs argue that the defect in the request requires denial of the motion.
Plaintiffs rely on Cassini v. City of Orange, 16 N.J. Tax 438 (Tax 1997), where the court found defective Chapter 91 requests dated September 22, 1995 that requested information for the period ending December 31, 1995, to be used in determining the assessment for the 1996 tax year. In that case, the plaintiffs argued that the information sought was not yet available at the time of the request and it was impossible for them to respond or that they were uncertain of exactly what was being sought.
In the present case, plaintiffs maintain that taxpayers have no obligation to respond to a Chapter 91 request where the information could not possibly be used in formulating the assessments. See, e.g., Westmark Partners v. West Deptford Twp., 12 N.J. Tax 591 (Tax 1992) (denying Chapter 91 motions where the requests for income and expense information were made after the taxpayer had already filed appeals of the assessments); Delran Holding Corp. v. Delran Twp., 8 N.J. Tax 80 (Tax 1985) (same).
The purpose of Chapter 91 is "'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 Ltd. v. Point Pleasant Bor., 112 N.J. 1, 7 (1988). If the assessment date has passed, there is no purpose for a Chapter 91 request.
The plaintiffs in these cases were entitled to rely on the assessor's own statement in the covering letter that the information was to be used for the 2011 assessment year. As has become clear with the filing of these motions, the assessor intended to use the information for the 2012 assessment. Most probably, the letter contained an inadvertent or typographical error. However, as explained in Cassini, supra, 16 N.J. Tax at 453, "[t]he taxpayer should not bear the burden of divining the assessor's intent or purpose in sending a Chapter 91 request."
For the foregoing reasons, the motions are denied. Orders are enclosed.
Very truly yours,
Gail L. Menyuk, J.T.C.