TEICHER AMERICAN COMMUNITIES AT THE MAJESTIC, LLC v. CITY OF ASBURY PARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5283-05T15283-05T1

TEICHER AMERICAN COMMUNITIES

AT THE MAJESTIC, LLC,

Plaintiff-Appellant,

v.

CITY OF ASBURY PARK,

Defendant-Respondent.

________________________________________________________________

 

Submitted February 28, 2007 - Decided April 2, 2007

Before Judges Parker and C.S. Fisher.

On appeal from the Tax Court of New Jersey, Docket No. 7485-2005.

Lomurro, Davison, Eastman & Munoz, attorneys for appellant (Michael D. Schottland, of counsel; Peter V. Koenig, on the brief).

Harry Haushalter, attorney for respondent.

PER CURIAM

In this tax court case, plaintiff Teicher American Communities at the Majestic appeals from an order entered on May 3, 2006 dismissing the complaint as untimely. We affirm.

Plaintiff purchased the property at issue from the Salvation Army on December 28, 2004. Since the Salvation Army is a nonprofit entity and the property was used as a residence and nursing home for retired officers of the Salvation Army, the property was tax exempt. When plaintiff purchased it, however, the property lost its tax exempt status.

Although plaintiff purchased the property on December 28, 2004, the deed was not recorded until April 9, 2005, at which time the Monmouth County Clerk's Office received notice of the transfer. The tax assessor then determined that since the property was no longer exempt, it was subject to property taxes for the 2005 tax year. The tax assessor placed an added assessment on the property from January 1, 2005, even though the deed was not recorded until April 2005. The added assessment was forwarded to the Asbury Park Tax Collector's Office so the tax bills could be mailed to plaintiff. The tax bills for the 2005 tax year were mailed on October 17, 2005.

The statutory deadline for filing an appeal of an added tax assessment is December 1st of the year in which the tax assessment is made. N.J.S.A. 54:4-63.11. Plaintiff did not file the appeal until December 16, 2005. Defendant moved to dismiss the complaint and that motion was granted in a decision rendered on the record on May 3, 2006.

In this appeal, plaintiffs argue that (1) the tax court complaint was not untimely; and (2) the City is equitably estopped from invoking the statute of limitation.

Plaintiff argues that the complaint is not "untimely" because the City has not yet zoned the property. Plaintiff contends that "[t]his dispute is not about taxes. It is about the City's intransigence in failing to prescribe zoning for the plaintiff's property." Plaintiff maintains that because the tax court is a court of limited jurisdiction, it does not have the authority to order the City to adopt zoning for the property and, since the accuracy of the tax assessment cannot be determined until a zone is established, plaintiff's appeal is not "untimely."

Plaintiff invokes no statutory or case law to support its position that the City's failure to zone the property tolls the time within which the tax appeal must be filed. The statutory scheme for filing tax appeals is clear and unequivocal. N.J.S.A. 54:4-63.26 provides that when any tax exempt property changes ownership, the property "shall be assessable as omitted property." N.J.S.A. 54:4-63.27 provides:

The valuation of any such property for the purpose of the assessment shall be based upon the assessor's valuation of the property previously made and listed separately as exempt property, subject to equalization and revision by the county board of taxation.

The Asbury Park Tax Assessor assessed the property based upon the valuation on the 2005 exempt list.

N.J.S.A. 54:4-63.28 provides that all previously exempt property "shall be assessed and taxed as of the first date of the month following the date when the right to exemption ceased." Moreover,

[t]he amount of tax shall be determined by multiplying the amount which the tax would be if such tax were for the entire year by the number of whole months remaining in the calendar year after the date when the right to exemption ceased and dividing the result by [twelve].

[N.J.S.A. 54:4-63.28.]

Here, ownership of the property was transferred to plaintiff on December 28, 2004. In accordance with N.J.S.A. 54:4-63.28, the exemption ceased as of January 1, 2005 and the property was properly assessable under the added assessment law for the entire 2005 tax year. A property owner bears the burden of determining the amount of taxes or assessments against the property even if a tax bill is not received. N.J.S.A. 54:4-63.7.

Finally, N.J.S.A. 54:4-63.11 specifically provides that

Appeals from added assessments may be made to the county board of taxation on or before December 1 of the year of levy, or [thirty] days from the date the collector of the taxing district completes the bulk mailing of tax bills for added assessments, whichever is later, and the county board of taxation shall hear and determine all such appeals within [one] month after the last day for filing such appeals; provided, however, that appeals from added assessments may be made directly to the Tax Court on or before December 1 of the year of the levy, or [thirty] days from the date the collector of the taxing district completes the bulk mailing of tax bills for added assessments, whichever is later, if the aggregate assessed valuation of the property exceeds $750,000.00. Within ten days of the completion of the bulk mailing of tax bills for added assessments, the collector of the taxing district shall file with the county board of taxation a certification setting forth the date on which the bulk mailing was completed. Appeals to the Tax Court from the judgment of the county board of taxation shall be made within [forty-five] days from the date fixed for final decisions by the county board of taxation on appeals from added assessments. In all other respects such appeals shall be governed by the laws concerning appeals from real property assessments.

Here, the tax bills were mailed on October 17, 2005 thereby establishing December 1, 2005 as the deadline for challenging the added assessments for the 2005 tax year. Plaintiff did not file its complaint with the Tax Court until December 16, 2005. Nothing in the Added Assessment of Real Estate Law, N.J.S.A. 54:4-63.1 to -63.11a, or the statutes governing the filing of tax appeals makes any provision for tolling the time by which a tax appeal shall be filed when the property owner is engaged in a zoning dispute with the taxing entity.

Timely filing of a tax appeal goes to the jurisdiction of the reviewing court. 18 Washington Place Assocs. v. City of Newark, 8 N.J. Tax 608, 613 (Tax 1986). "[T]he right of appeal in tax cases is purely statutory and . . . all statutory requirements must be strictly complied with to invest the reviewing tribunal with subject matter jurisdiction." Id. at 614. "Compliance with statutory filing requirements is an unqualified jurisdictional imperative, long sanctioned by our courts." Mayfair Holding Corp. v. Twp. of N. Bergen, 4 N.J. Tax 38, 40 (Tax 1982). See also State v. Eatontown Borough, 366 N.J. Super. 626, 633-34 (App. Div. 2004) (holding that tax appeals must be dismissed when untimely, even if the tax assessments were allegedly ultra vires); Royal Bradley v. Bradley Beach Bor., 252 N.J. Super. 401, 404 (App. Div. 1991) (holding that a tax appeal must be dismissed when filed after the statutory deadline). "Strict adherence to statutory time limitations is essential in tax matters, borne of the exigencies of taxation and the administration of local government." F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 424 (1985).

The policy of applying strict time limitations to tax matters is based upon the very nature of our administrative tax structure. Municipal budgets must be finalized [no] later than the 90th day after the beginning of the budget year. N.J.S.A. 54:4-42. Real estate assessments, which constitute the bulk of a municipality's income, are established as of October 1 of the pretax year. N.J.S.A. 54:4-23. Throughout our tax legislation, it is clear that our Legislature has attempted to set out a well organized time-table for the purpose of enabling a municipality to ascertain the amount of taxable ratables within its jurisdiction in order that it might adopt a responsible and fairly accurate budget.

[Galloway Twp. v. Petkevis, 2 N.J. Tax 85, 92 (Tax 1980).]

Plaintiff further maintains that the City is estopped from invoking the statute of limitation because it failed to zone the property thereby precluding consideration of the "assessed value" of the property. Plaintiff has challenged the City's zoning of the property in the Law Division and that matter is still pending. The pendency of the zoning matter, however, does not excuse the late filing of the tax appeal. As we have indicated previously, nothing in the statutory scheme for filing tax appeals provides for tolling of an appeal pending disposition of a zoning dispute.

 
Affirmed.

(continued)

(continued)

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A-5283-05T1

April 2, 2007