1145 Towbin Avenue, LLC v. Township of Lakewood

NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Patrick DeAlmeida R.J. Hughes Justice Complex

Presiding Judge P.O. Box 975

Trenton, New Jersey 08625-0975

(609) 292-8108 Fax: (609) 984-0805

April 3, 2012

Michael J. Caccavelli, Esq.

Zipp & Tannenbaum, LLC

166 Gatzmer Avenue

Jamesburg, New Jersey 08831

Lani M. Lombardi, Esq.

Cleary, Giacobbe, Alfieri, Jacobs, LLC

Lakeview Professional Building

5 Ravine Drive

P.O. Box 533

Matawan, New Jersey 07747

Re: 1145 Towbin Avenue, LLC v. Township of Lakewood

Docket No. 003799-2011

Dear Counsel:

This letter constitutes the court s opinion with respect to defendant s motion to dismiss the Complaint due to plaintiff s failure to respond to a request for income and expense information from the municipal tax assessor pursuant to N.J.S.A. 54:4-34, commonly known as Chapter 91 (L. 1979, c. 91). For the reasons explained more fully below, defendant s motion is denied.

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I. Findings of Fact and Procedural History

The following findings of fact are based on the credible evidence submitted by the parties on defendant s motion. R. 1:6-2(f).

Plaintiff 1145 Towbin Avenue, LLC owns a parcel of land in defendant Lakewood Township. The property is designated by the township as Block 1160.04, Lot 53 and is commonly known as 1145 Towbin Avenue.

On or about July 1, 2010, the municipal tax assessor mailed to plaintiff, via certified mail, return receipt requested, a request for income and expense information relating the subject property. For purposes of this motion, the court will proceed on the assumption that the request complied with Chapter 91 in all respects and was intended to assist the tax assessor in determining an assessment for the property for tax year 2011.

On July 23, 2010, Steven C. Spinweber, plaintiff s Executive Vice President, responded to the tax assessor s request. According to Mr. Spinweber, he included in a single envelope to the assessor Chapter 91 responses relating to twenty-two properties, including the subject property, owned by plaintiff or related companies. Mr. Spinweber s July 23, 2010, cover letter to the assessor states [p]ursuant to NJSA 54:4-34, please find enclosed the following completed Standard Income & Expense Statements. That statement is followed by a list of the street addresses and block and lot designations of the twenty-two properties, including the subject property, for which, Mr. Spinweber contends, responses were enclosed. Mr. Spinweber s letter concluded [i]f you have any questions or comments, or require any additional information, please do not hesitate to contact me at your earliest convenience. In opposition to defendant s motion, Mr. Spinweber submitted a copy of the completed income and expense statement for the subject property and the return receipt card establishing delivery Mr. Spinweber s July 23, 2010 letter to the tax assessor s office.

The tax assessor admits receipt of the July 23, 2010 letter with enclosed responses. He credibly certified that his staff carefully logged in each of the responses enclosed with the July 23, 2010 cover letter. Only twenty-one responses were enclosed. According to the tax assessor, despite the fact that the subject property was named by address and block and lot designation on Mr. Spinweber s cover letter, no Chapter 91 for the subject property was enclosed. The assessor s staff did not reach out to Mr. Spinweber with respect to this discrepancy.

On March 18, 2011, plaintiff filed a Complaint challenging the tax year 2011 assessment on the subject property.

On September 13, 2011, defendant moved to dismiss the Complaint because plaintiff failed to respond to the assessor s Chapter 91 request. Plaintiff opposed the motion.

II. Conclusions of Law

N.J.S.A. 54:4-34 provides

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 . . . . 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 purpose of Chapter 91 is to assist the municipal tax assessors, who are charged with the responsibility for property valuations, by affording them access to fiscal information that can aid the valuation of property. Lucent Techs, Inc. v. Township of Berkeley Heights, 405 N.J. Super. 257, 263 (App. Div. 2009), rev d in part, aff d in part, 201 N.J. 237 (2010). The correct and timely availability of this information to the tax assessor avoid[s] unnecessary expense, time and effort in litigation. Ibid. (quoting Ocean Pines, supra, 112 N.J. at 7)(internal quotations omitted). The assessor must send the request by certified mail to the owner of the property and must enclose the full text of the statute. N.J.S.A. 54:4-34. The government must speak in clear and unequivocal language where the consequence of non-compliance [with a Chapter 91 request] is the loss of the right to appeal assessments. Cassini v. City of Orange, 16 N.J. Tax 438, 453 (Tax 1997). In addition, [t]o advance the purpose of N.J.S.A. 54:4-34, the assessor s request must be timely, so that upon its receipt, the assessor can utilize the information by January 10 in setting an assessment for the upcoming tax year. John Hancock Mut. Life Ins. Co. v. Township of Wayne, 13 N.J. Tax 417, 422 (Tax 1993).

The taxpayer does not dispute that the municipal tax assessor s request for income and expense information satisfied the requirements of Chapter 91 and was timely made by the assessor. Plaintiff s only defense to the motion is that it responded to the request through Mr. Spinweber s July 23, 2010 correspondence to the tax assessor.

The plain language of Chapter 91 states that the appeal-preclusion provision of the statute applies only where the owner has failed or refused to respond to an assessor s request for income and expense information. N.J.S.A. 54:4-34. Thus, absent a dispute as to the validity and clarity of the Chapter 91 request, a taxpayer will be subject to the significant sanction in the statute only where the taxpayer has failed or refused to respond to the request. J&J Realty Co. v. Township of Wayne, 22 N.J. Tax 157, 165 (Tax 2005).

The court has no cause to doubt the credibility of either Mr. Spinweber or the tax assessor. Mr. Spinweber credibly believes that he enclosed with his July 23, 2010 correspondence a response to the assessor s request for income and expense information relating to the subject property. The tax assessor credibly believes that the envelope containing the July 23, 2010 correspondence contained no such response. Both witnesses kept detailed records with respect to the question at issue. Neither suggests the other is prevaricating.

As a result, the record suggests two equally plausible scenarios: (1) through an oversight Mr. Spinweber enclosed only twenty-one Chapter 91 responses with his July 23, 2010 correspondence, leaving out the response relating to the subject property; or (2) when logging the contents of Mr. Spinweber s July 23, 2010 correspondence the tax assessor s staff overlooked the Chapter 91 response relating to the subject property, misidentified that response in the tax assessor s records or misplaced the response. The evidence is at equipoise. The court cannot, therefore, make a finding based on the motion record that plaintiff failed or refused to respond to the assessor s request for income and expense information.

Because of the severe sanction permitted by Chapter 91, this court has been reluctant to award relief in the absence of sufficient evidence of non-compliance by the taxpayer. See e.g. Great Adventure, Inc. v. Township of Jackson, 10 N.J. Tax 230, 233 (App. Div. 1988)(noting 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. ); J&J Realty, supra 22 N.J. Tax at 165 (holding that when a taxpayer, in good faith, responds by regular mail to a Chapter 91 request, and, through no fault or negligence of the taxpayer, the assessor does not receive the response, the severe limitation on appeal rights contained in Chapter 91 should not be imposed. )(footnote omitted). The court is not convinced that plaintiff failed to include in the July 23, 2010 correspondence income and expense information relating to the subject property. Defendant s request to dismiss the Complaint, therefore, is denied.

An Order effectuating the court s decision is enclosed.

Very truly yours,

Patrick DeAlmeida, P.J.T.C.