247 Route 22, Inc./Walgreens v. Township of Green Brook

Annotate this Case


NOT FOR PUBLICATION WITHOUT APPROVAL OF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


July 31, 2013

 

John C. Hyon, Esq.

Stavitsky & Associates, LLC

350 Passaic Avenue

Fairfield, New Jersey 07004


William J. Willard, Esq.

DiFrancesco, Bateman, Coley, Yospin,

Davis, Lehrer & Flaum, P.C.

15 Mountain Boulevard

Warren, New Jersey 07059


Re: 247 Route 22, Inc./Walgreens v. Township of Green Brook

Docket No. 009437-2013



Dear Counsel:

This letter constitutes the court s opinion with respect to defendant s motion to dismiss the Complaint because plaintiff failed 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 granted, subject to plaintiff s right to a reasonableness hearing pursuant to Ocean Pines, Ltd v. Borough of Point Pleasant, 112 N.J. 1 (1988).

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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 247 Route 22, Inc. owns real property in defendant Green Brook Township. The property is designated by the township as Block 24, Lot 9 and is commonly known as 247 Route 22 East.

On September 5, 2012, the municipal tax assessor mailed to plaintiff, via certified mail, return receipt requested, a request for income and expense information relating to the subject property. The request, which was dated August 23, 2012, was intended to assist the tax assessor in determining an assessment for the property for tax year 2013.

The request was addressed to 247 Route 22 Inc. c/o Walgreens. In the re: line the letter stated Block 24 Lot 9 Qual and PROPERTY LOCATION 24, GREEN BROOK, NJ. It is clear that the property location listed on the request is incomplete. The same re: line appeared on each page of the request and the enclosed forms for reporting income and expenses associated with the property.

The assessor s request was delivered to the taxpayer on September 10, 2012. No response was submitted by the taxpayer to the assessor.

On April 1, 2013, plaintiff filed a Complaint challenging the tax year 2013 assessment on the subject property.

On May 1, 2013, defendant moved to dismiss the Complaint because plaintiff failed to respond to the assessor s Chapter 91 request.

Plaintiff opposes the motion, relying on two arguments. First, plaintiff argues that the property is not sufficiently identified in the request because the address is listed as 24, GREEN BROOK NJ. In addition, plaintiff argues that the request is ambiguous because it seeks information from plaintiff s most recent accounting period without a specific range of dates. Plaintiff raises no other objections with respect to the request s conformity with Chapter 91.

The parties waived oral argument. As a result, this motion is decided on the papers.

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 . . . and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request . . . or shall render a false or fraudulent account, 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 . . . or shall have rendered a false or fraudulent account.

 

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 in 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).

In light of the severity of the appeal-preclusion provision of N.J.S.A. 54:4-34, this court has consistently held assessors to a standard of strict compliance with the statute. The government must speak in clear and unequivocal language where the consequence of non-compliance is the loss of the right to appeal assessments. Cassini v. City of Orange, 16 N.J. Tax 438, 453 (Tax 1997). The appeal-preclusion provision is triggered only if the assessor s request would be understood by the average owner of an income producing property to require disclosure of the information which the taxpayer has allegedly withheld. ML Plainsboro, Ltd v. Township of Plainsboro, 16 N.J. Tax 250, 257 (App. Div.), certif. denied, 149 N.J. 408 (1997). A request that does not clearly identify the information sought may not form the basis of dismissal of a Compliant. As the Appellate Division explained, if there is room for reasonable doubt as to whether an average owner of an income producing property would understand an assessor s request to include a particular kind of information, the benefit of that doubt should be given to the taxpayer. Ibid.

With respect to the identity of the property, the court concludes that the assessor s request was sufficient to put plaintiff on notice of the information sought. The property is identified in the request by block and lot. The commonly known address of the property, however, is incomplete. The address is reported as 24, GREEN BROOK, NJ. The complicating factor for plaintiff s argument is that plaintiff s name is 247 Route 22, Inc., the very address of the property. Plaintiff s name appears on the letter, just below the property identification information. Plaintiff provided no evidence in opposition to the motion that it owns property in Green Brook Township other than the property for which it is named, 247 Route 22, the subject of the information request. In addition, the information request is addressed to plaintiff c/o Walgreens. It appears that a Walgreens pharmacy is located on the property. Again, plaintiff produced no evidence in opposition to the motion that it owns property in Green Brook Township other than the subject property on which a Walgreens is located.

Given these factors, the court concludes that the record contains no evidence suggesting that plaintiff could reasonably have been confused with respect to which property was the subject of the information request. The information request identified the block, lot, name of plaintiff, which was the same name as the property s address, and the name of the business located on the property. No reasonable taxpayer would be confused with respect to which property was the subject of the request.

Plaintiff s argument with respect to the clarity of the information requested is also unpersuasive. An ambiguous request for information was examined by this court in Cassini, supra, 16 N.J. Tax at 449-50. In that case, September 22, 1995, letters from the tax assessor requested income and expense information for the tax year ending December 31, 1995 for the relevant properties. Judge Small found the requests to be insufficiently clear to justify dismissal of the Complaints. As he explained,

it is not clear from a reading of the letters and the attached income and expense forms that the property owner is to provide whatever data is available, by estimation or otherwise, on the date the letters are received. Requesting information for the tax year ending December 31, 1995 is not the same as requesting current information for that tax year, or information for a calendar year already ended.

 

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The obligations of the property owners in these matters are far from clear cut. Given the severity of the penalty for failure to comply with the Chapter 91 requests, a tremendous inequity would be created by dismissing these complaints.

 

[Ibid.]

 

Similarly, in Town of Phillipsburg v. ME Realty, LLC, 26 N.J. Tax 57 (Tax 2011), the court examined a request from a tax assessor under Chapter 91 for income and expense data for tax year ending December 2008/2009. Because the request was subject to multiple interpretations and was at best ambiguous the court concluded that the municipality was not entitled to relief under Chapter 91. Id. at 68. The court made this decision despite the fact that the taxpayer had received similar requests from the municipality in previous years and responded without issue. Ibid.

The assessor s request here is for information from your most recent accounting period. This request is not subject to multiple interpretations. Information from whatever accounting period the taxpayer most recently used will suffice to satisfy the assessor s request. Nor is the request ambiguous. Again, the request will be satisfied by the production of information from the property owner s most recent accounting period, whatever that accounting period may be. The assessor demonstrated a measure of flexibility in her request by indicating that she would accept information from the property owner s accounting period, rather than from a set span of dates, which may or may not correspond with a particular property owner s books.

Defendant s motion is granted. An Order effectuating the court s decision and establishing a date for a reasonableness hearing is enclosed.

Very truly yours,

Patrick DeAlmeida, P.J.T.C.