NOT FOR PUBLICATION WITHOUT APPROVAL OF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
March 9, 2012
Mr. Raymond R. Bruce, Jr.
40 Helen Avenue
Maple Shade, New Jersey 08052
Eileen K. Fahey, Esq.
7A North Main Street, Suite 1
Medford, New Jersey 08055
Re: Raymond R. Bruce, Jr. v. Township of Maple Shade
Docket No. 010561-2011
Dear Mr. Bruce and Ms. Fahey:
This letter constitutes the court’s opinion with respect to defendant’s motion to dismiss the complaint in the above-referenced matter for want of jurisdiction. For the reasons explained more fully below, defendant’s motion is granted.
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I. Findings of Fact and Procedural History
This letter sets forth the court’s findings of fact and conclusions of law on defendant’s motion to dismiss the Complaint. R. 1:6-2(f).
Plaintiff Raymond R. Bruce, Jr. is the owner of real property located in defendant Township of Maple Shade. The property is designated by the Township as Block 128, Lot 2.02 and is known as 40 Helen Avenue.
In 2005, the Maple Shade tax assessor determined plaintiff’s property to be exempt from local property taxes pursuant to N.J.S.A. 54:4-3.30(a). That statute provides an exemption for the “dwelling house and the lot or curtilage whereon the same is erected, of any citizen and resident of this State, now or hereafter honorably discharged . . . from active service, in time of war, in any branch of the Armed Forces of the United States” who has been or shall be declared by the United States Veterans Administration to have a 100% permanent, service-connected disability. N.J.S.A. 54:4-3.30 (a).
In February 2008, a resident complained to the Maple Shade tax assessor that plaintiff did not reside at 40 Helen Avenue and that the property, therefore, should not be exempt. The assessor’s investigation, conducted pursuant to N.J.S.A. 54:4-4.4, revealed that on September 1, 2004 plaintiff filed a change of address form with the township tax collector requesting that all tax bills for the subject property be sent to plaintiff at an address in Nags Head, North Carolina. In addition, the tax collector received a request to send municipal utilities bills for 40 Helen Avenue to Ray and Samantha Schuman at the 40 Helen Avenue address. Ms. Schuman is plaintiff’s daughter. Municipal utilities bills for the subject property were subsequently paid by Mr. and Mrs. Schuman.
Additionally, the tax collector uncovered proof that plaintiff registered to vote at the Nags Head, North Carolina address on September 25, 2004 and voted in North Carolina on November 2, 2004, February 7, 2006, and April 17, 2007. A further investigation revealed that Mr. Bruce was registered to vote in New Jersey at the same time that he was registered to vote in North Carolina and that he last voted in New Jersey on April 18, 2006, two months after he voted in North Carolina on February 7, 2006 and a year before he voted in North Carolina on April 17, 2007. Mr. Bruce appears to still be registered to vote in both States. The legality of Mr. Bruce’s voting record is not before the court.
Plaintiff also filed federal and North Carolina income tax returns bearing the Nag Head, North Carolina address.
On or about March 3, 2008, the Maple Shade tax assessor received a telephone call from an employee of the New Jersey Division of Taxation. The Division had received an application for a tenant homestead rebate from Mrs. Schuman for 40 Helen Avenue. Mrs. Schuman listed the residence as her address. Because the residence at 40 Helen Avenue was exempt from local property tax, Mrs. Schuman did not qualify for a tenant homestead rebate. No portion of her rent was used to pay local property taxes on the residence. There were, therefore, no taxes to rebate to Mrs. Schuman. As a result, Mrs. Schuman was directed to repay to the Director, Division of Taxation two tenant homestead rebates previously paid to her in error.
As a result of having compiled a significant amount of information suggesting that plaintiff had abandoned 40 Helen Avenue as his dwelling and relocated to North Carolina, the tax assessor, in a letter dated March 19, 2008, requested proof from plaintiff that he was a resident of New Jersey and that 40 Helen Avenue was his dwelling.
Mr. Bruce’s March 21, 2008 response did not provide any information confirming the fact that he continued to reside at 40 Helen Avenue. He did, however, state that “I am considering a relocation action out of the state and would like to arrive at a fair and balanced decision in this matter.” The meaning of that statement is unclear, although it suggests that Mr. Bruce was considering moving out of New Jersey.
On June 2, 2008, the tax assessor mailed to plaintiff a notice of disallowance of claim for the veteran’s property tax deduction. The notice informed plaintiff that the assessor denied the exemption because plaintiff failed to establish that he was resident of New Jersey and dwelled at 40 Helen Street. The June 2, 2008 notice informed plaintiff of his right to file an appeal of the assessor’s decision with the county board of taxation pursuant to N.J.S.A. 54:3-21. Plaintiff received the assessor’s notice on June 3, 2008. He did not file an appeal of the assessor’s decision.
Instead, on June 9, 2008, plaintiff spoke with the tax assessor regarding her decision and delivered to her a copy of his vehicle registration, vehicle insurance card, and homeowner’s insurance policy as proof of his residency. The assessor informed plaintiff that she would consider those submissions.
On September 30, 2008, the assessor informed plaintiff in writing that an added assessment was being placed on his property for tax year 2007 through the omitted assessment process because the exemption for that year had been rescinded. The notice plainly states that “[t]his is a courtesy notice from the Assessor’s office to inform you of the additional value placed on the above-mentioned property.” In addition, the notice states “[i]f you do not agree with the Added Assessment (sic), you have the right to appeal to Burlington County Board of Taxation on or before December 1st.” See N.J.S.A. 54:4-63.39. The notice explained the omitted assessment as “EXEMPT/RATABLE,” listed the omitted assessment amount as $218,400 and stated the estimated taxes on the parcel for 2007 as $4,673.76.
A similar notice was enclosed for tax year 2008. That notice also listed the omitted assessment amount as $218,400 and stated the estimated taxes on the parcel for 2008 at $4,859.40. The notice for tax year 2008 also informed plaintiff of his right to file an appeal from the added assessment on or before December 1, 2008.
On October 20, 2008, the Maple Shade tax collector issued tax bills to plaintiff for the taxes due as a result of the omitted assessments for tax years 2007 and 2008. The tax bills informed plaintiff of his right to file an appeal with the Burlington County Board of Taxation challenging the newly added assessments. Plaintiff did not file an appeal with the county board.
On January 26, 2009, the tax assessor mailed to plaintiff the statutorily required notice of assessment card with respect to the subject property for tax year 2009. The notice indicates that the property would not be exempt for tax year 2009 and informed plaintiff of his right to file an appeal with the county board of taxation to challenge the assessment on the property. See N.J.S.A. 54:3-21. Plaintiff did not file an appeal with the county board of taxation regarding tax year 2009.
On June 12, 2009, the Maple Shade tax collector published a notice of tax sale certificates, which listed the subject property as the subject of a tax sale certificate for unpaid taxes. The notice listed the amount of taxes due and owing on plaintiff’s property and indicated that remittance of the outstanding taxes would result in cancellation of the sale.
On July 17, 2009, the tax collector held the sale and a tax sale certificate for plaintiff’s property was sold to a third party.
On or about September 22, 2009, the tax collector sent to plaintiff a delinquency notice regarding outstanding taxes on the subject property. The notice stated that since the sale of the tax certificate additional outstanding taxes of $2,566.74 had accumulated.
On November 2, 2009, plaintiff wrote to the tax assessor in response to the September 22, 2009 delinquency notice. In his letter, plaintiff acknowledged that he “was mistaken in believing the aforementioned matter was satisfactorily resolved.” Plaintiff also reported that he had communicated with an unnamed representative of the county board of taxation was “was told by the County representative that the action taken was a ‘local’ matter.” Plaintiff requested that the assessor explain the basis for the revocation of the exemption on the subject property.
On November 16, 2009, defendant’s counsel wrote to plaintiff explaining the basis for the assessor’s revocation of the exemption and noting the numerous opportunities offered to plaintiff to appeal the revocation for the multiple tax years at issue.
On November 27, 2009, plaintiff filed an application to reinstate the disabled veteran’s exemption for the subject property for tax year 2010.
On December 30, 2009, the assessor sent plaintiff a notice disallowing the exemption and listing the documents necessary to establish the exemption that were missing from plaintiff’s application. The notice of disallowance explained that plaintiff could challenge the decision through the filing of an appeal with the county board of taxation within the time permitted by N.J.S.A. 54:3-21. Plaintiff did not file an appeal of the assessor’s decision.
On January 25, 2010, the assessor issued a notice of assessment card to plaintiff indicating the assessment on the property for tax year 2010. The notice of assessment card contained an explanation that an appeal could be taken from the assessment to the county board of taxation within the time prescribed by N.J.S.A. 54:3-21. No such appeal was filed.
During 2010, the tax collector issued three delinquency notices to plaintiff stating outstanding taxes on the subject property.
On September 28, 2010, plaintiff wrote to the tax assessor requesting copies “of any and all past and current tax file(s) documentation as applicable (sic).”
On October 12, 2010, the tax assessor forwarded to plaintiff copies of his exemption applications, the assessor’s notice of disallowance of plaintiff’s exemption claim, and the assessor’s omitted assessment letters.
On or about November 1, 2010, the assessor received an application from plaintiff for reinstatement of the exemption for the subject property. Based on the documentation provided by plaintiff the assessor determined that plaintiff was no longer renting the property to tenants or identifying North Carolina as his State of residence. The assessor approved the application as of November 1, 2010.
During 2011, plaintiff continued to receive tax delinquency notices with respect to overdue taxes not addressed in the tax sale certificate. An April 14, 2011 letter from the tax collector explained to plaintiff that the exemption on his property had been denied for tax years 2007, 2008 and 2009 and had been restored as of November 1, 2010.
On May 19, 2011, plaintiff wrote to the county board of taxation seeking review of the tax assessor’s decision to remove the exemption on the subject property beginning in tax year 2008.
On May 23, 2011, the Administrator of the county board of taxation rejected plaintiff’s appeal as untimely.
On June 16, 2011, plaintiff filed a Complaint in this court challenging the assessor’s denial of an exemption for the subject property for tax years 2008, 2009 and 2010 (up to November 1, 2010).
On August 22, 2011, the municipality moved to dismiss the Complaint for want of jurisdiction due to late filing. Plaintiff opposed the motion. After oral argument, the court permitted the parties to submit additional evidence in support of their positions.
II. Conclusions of Law
As our Supreme Court recently reiterated, the “Tax Court is vested with limited jurisdiction” defined by statute. McMahon v. City of Newark, 195 N.J. 526, 546 (2008)(citing N.J.S.A. 2B:13-2 and Union City Assocs. v. City of Union City, 115 N.J. 12, 23 (1989)). “’The right to appeal a real property assessment is statutory, and the appellant is required to comply with all applicable statutory requirements.’” Macleod v. City of Hoboken, 330 N.J. Super. 502, 505 (App. Div. 2000)(quoting F.M.C. Stores Co. v. Borough of Morris Plains, 195 N.J. Super. 373, 381 (App. Div. 1984), aff’d, 100 N.J. 418 (1985)). The statutory scheme establishing this court’s jurisdiction is “one with which continuing strict and unerring compliance must be observed . . . .” McMahon, supra, 195 N.J. at 543.
“[F]ailure to file a timely appeal is a fatal jurisdictional defect.” F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 425 (1985). Adherence to statutory filing deadlines is of particular concern in tax matters, given “the exigencies of taxation and the administration of local government.” Id. at 424 (citing Princeton Univ. Press v. Borough of Princeton, 35 N.J. 209, 214 (1961)). A failure to file a timely Complaint divests this court of jurisdiction even in the absence of harm to the defendant municipality. Lawrenceville Garden Apartments v. Township of Lawrence, 14 N.J. Tax 285 (App. Div. 1994).
A. Tax Year 2008
With respect to tax year 2008, the Maple Shade assessor used the omitted assessment procedure to remove the exemption on the subject property and place an assessment on the parcel. Notice of the placement of an assessment on the property through the omitted assessment process was provided to plaintiff on September 30, 2008. That notice informed plaintiff of his right to appeal the assessor’s decision before the county board of taxation “on or before December 1st” of that year.
N.J.S.A. 54:4-63.39 provides that
[a]ppeals from assessor’s omitted assessments may be made to the county board of taxation on or before December 1 of the year of levy or 30 days from the date the collector of the taxing district completes the bulk mailing of tax bills for omitted assessments, whichever is later . . . provided, however, that appeals from assessor’s omitted assessments may be made directly to the Tax Court on or before December 1 of the year of levy, or 30 days from the date the collector of the taxing district completes the bulk mailing of tax bills for omitted assessments, whichever is later, if the aggregate assessed valuation of the property exceeds $750,000.
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Appeals to the Tax Court from the judgment of the county board of taxation shall be made within 45 days from the date fixed for final decision by the county board of taxation on appeals from assessor’s omitted assessments. In all other respects such appeals shall be governed by the laws concerning appeals from real and personal property.
Plaintiff did not comply with the statutory requirements to establish jurisdiction to review the assessor’s decision to rescind the exemption on the subject property for tax year 2008. Mr. Bruce did not file an appeal with the county board of taxation of the assessment placed on the property on or before December 1, 2008, as is required by the N.J.S.A. 54:4-63.39. The first attempt that plaintiff made to seek review of the assessor’s decision at the county board of taxation was on May 19, 2011, nearly three years after he received notice that the assessor had removed the exemption for the subject property for tax year 2008. The board correctly rejected plaintiff’s application as untimely on May 23, 2011.1
Plaintiff filed a Complaint with this court on June 16, 2011. Because the assessment on the subject property does not exceed $1,000,000 plaintiff must timely prosecute an appeal at the county board prior before jurisdiction can be established in this court. Having failed to file a timely appeal with the county board with respect to tax year 2008, plaintiff cannot establish jurisdiction in this court to review the assessor’s decision for that tax year, regardless of the merits of plaintiff’s claims.
B. Tax Years 2009 and 2010
This court’s jurisdiction to review assessments on real property is established by N.J.S.A. 54:3-21, which provides for review of assessments as follows:
[A] taxpayer feeling aggrieved by the assessed valuation of the taxpayer’s property . . . may on or before April 1, or 45 days from the date the bulk mailing of notification of assessment is completed in the taxing district, whichever is later, appeal to the county board of taxation by filing with it a petition of appeal; provided, however, that any such taxpayer . . . may on or before April 1, or 45 days from the date the bulk mailing of notification is completed in the taxing district, whichever is later, file a complaint directly with the Tax Court, if the assessed valuation of the property subject to the appeal exceeds $1,000,000. In a taxing district where a municipal-wide revaluation or municipal-wide reassessment has been implemented, a taxpayer . . . may appeal before or on May 1 to the county board of taxation by filing with it a petition of appeal or, if the assessed valuation of the property subject to the appeal exceeds $1,000,000, by filing a complaint directly with the State Tax Court.
The filing deadline established in N.J.S.A. 54:3-21 applies both to the assessment set on plaintiff’s property in each tax year in question and to the assessor’s decision to reject plaintiff’s exemption application for those years. “The courts of this state have . . . long recognized that actions seeking to contest tax exemptions are tax appeals that must be brought pursuant to N.J.S.A. 54:3-21.” Stoddard v. Rutgers, 24 N.J. Tax 187, 193 (Tax 2008)(citing Brunson v. Rutherford Lodge No. 547, 128 N.J. Super. 66, 72 (Law Div. 1974)).
The assessment on plaintiff’s property does not exceed $1,000,000. Plaintiff must, therefore, file an appeal with the county board of taxation before he can establish jurisdiction in this court to review his assessment. Additionally, Maple Shade did not have a municipal-wide reassessment or revaluation for either tax year 2009 or 2010. As a result, the May 1 filing deadline does not apply. The assessor mailed to plaintiff notice of assessment cards on January 26, 2009 for tax year 2009 and January 25, 2010 for tax year 2010. April 1st, therefore is the later relevant date and, according to N.J.S.A. 54:3-21, the filing deadline for each tax year.
Pursuant to the plain language of N.J.S.A. 54:3-21, in order to establish jurisdiction to review the assessments on his property (and the denial of his exemption request), plaintiff had to file a petition of appeal with the county board of taxation on or before April 1, 2009 for tax year 2009 and April 1, 2010 for tax year 2010. He failed to meet either of the statutory deadlines. Plaintiff’s first attempt to file an appeal with the county board of taxation was in May 2011. As a result of plaintiff’s failure to file appeals with the county board of taxation challenging the assessments this court lacks jurisdiction to review his claims with respect to tax years 2009 and 2010.
Plaintiff offers no cogent explanation for his untimely filing. Although he suggests that the tax assessor intentionally delayed resolution of the question of whether plaintiff was entitled to an exemption, the record does not support that assertion. The record quite plainly establishes the tax assessor’s prompt investigation and resolution of whether plaintiff dwelled in the subject property. Additionally, plaintiff suggests that he was under the impression that an exemption had been granted for the years in question. The record, however, is replete with written notices to plaintiff plainly indicating that the exemption had been denied and that assessments had been placed on the property for the years in question. Plaintiff also received notice of the sale of a tax certificate for unpaid taxes on the subject property. Finally, at oral argument plaintiff suggested that his daughter, who lived at the subject property during the tax years in question, was an unreliable custodian of mail and may have intercepted notices from the tax assessor. It is plaintiff’s responsibility, however, to ensure that important notices from government officials are received by a responsible party at his home. Moreover, plaintiff’s argument suggests that he may well not have been residing at the subject property while his daughter lived there. In addition, it is plain from the record that plaintiff was aware of the assessor’s determination to remove the exemption years before he filed an appeal with either the county board of taxation or this court.
An Order granting defendant’s motion is enclosed. The Clerk of the Tax Court will enter Judgment dismissing the Complaint for want of jurisdiction.
Very truly yours,
Patrick DeAlmeida, P.J.T.C.
1 Although plaintiff stated that he spoke with an unnamed employee of the county board of taxation and was told that his exemption application was a “local” matter sometime prior to November 2, 2009, the record contains no evidence suggesting that plaintiff filed or attempted to file with the county board of taxation a petition of appeal with respect to the assessment on his property at that time.