Tri-Martin Associates II, LLC v. City of Newark, No. 001150-2003 (N.J. Tax 2/17/2004)
| Decision Date | 17 February 2004 |
| Docket Number | No. 001150-2003,001150-2003 |
| Parties | TRI-MARTIN ASSOCIATES II, LLC, Plaintiff, v. CITY OF NEWARK, Defendant. |
| Court | New Jersey Tax Court |
This is the court's determination with respect to the City of Newark's (City) motion to dismiss plaintiff's (taxpayer) complaint by reason of the taxpayer's failure to respond to the City's request for income and expense information pursuant to N.J.S.A. 54: 4-34, commonly referred to as Chapter 91 (L. 1973, c. 91).
In support of its motion to dismiss, the City submits the certification of its tax assessor, indicating that she mailed a request for income and expense information pursuant to Chapter 91. Attached to the certification are copies of the mailing to the taxpayer, along with a copy of a certified return receipt card exhibiting the signature of a representative of the taxpayer. The certification further indicates that the assessor's office never received any response to its request.
The taxpayer, in opposition to the motion, submits several certifications with attached exhibits, and a brief. The taxpayer's arguments are as follows:
The request for income and expense information is illegal, in that it does not conform to the requirements of N.J.S.A. 54:4-34, which requires that only the assessor is permitted to send to taxpayers requests for income and expense information; and
The motion to dismiss is improper, in that it was filed more than 180 days after filing of the complaint in violation of R. 8:7(e);1 and
Taxpayer timely responded to the request for information;2 and
The notice requesting income and expense information was improper, in that it was undated, and therefore, the 45-day period for taxpayer to respond could not be accurately calculated.
By reason of this court's determination with respect to arguments No. 1 and No. 2, as hereinafter set forth, this court finds it unnecessary to consider the taxpayer's remaining arguments.
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 produce his title papers, and he may be examined on oath by the assessor, and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request, or to testify on oath when required, 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 ro refused to respond to such written request for information within 45 days of such request or testify on oath when required, or shall have rendered a false or fraudulent account. The county board of taxation may impose such terms and conditions for furnishing the requested information where it appears that the owner, for good cause shown, could not furnish the information within the required period of time. In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section. [Emphasis added].
Taxpayer acknowledges receipt of the request for income and expense information.3 Despite the City's contention that the "assessor" sent the request for income and expense information to the taxpayer, the facts indicate clearly that the request was made by Certified Valuations, Inc., the company performing the revaluation of the City's properties for 2003. Documents submitted by the taxpayer, undisputed by the City, indicate the letter requesting income and expense information was on Certified Valuations' letterhead, with requested information to be forwarded to the same company. The specific letter to the taxpayer, entitled "Final Notice," states, among other things:
In the event that you do not furnish this office with the requested information and expense data within the 45-day period, the law provides that you will be precluded from filing a tax appeal challenging the assessed value of the property.
Additionally, the certified return receipt green card, which is to be signed by the receiving party, indicates the sender to be Certified Valuations, Inc., 50 Park Place, Newark, New Jersey. None of the information forwarded to this taxpayer contains the name of the assessor of the City of Newark. The correspondence authored by the revaluation company neither mentions the name of the assessor nor represents that the request is being made on behalf of the assessor.
The City argues that this contention by taxpayer is merely nitpicking, in that all taxpayers would know that a revaluation is taking place, and the request must be on behalf of the assessor's office. The City further argues that N.J.A.C. 18:12-4.8(a) indicates that a revaluation company essentially is an agent of the assessor. A certification submitted by a representative of Certified Valuations, Inc. indicates, contrary to the City's argument before the court, that Certified Valuations, Inc. was hired by the State of New Jersey to perform the revaluation.4 The City also cites TMC Properties v. Wharton Bor., 15 N.J. Tax 455 (Tax 1996), to support its contention that the revaluation company may act as an agent of the assessor, and therefore, the request for chapter 91 information is attributable to the assessor.
This court finds these arguments to be without merit.
There is no dispute that the assessor has a legitimate interest in the timely receipt of income and expense information necessary to value property. Ocean Pines, Ltd. v. Pt. Pleasant Bor., 112 N.J. 1, 10 (Tax 1988). Ocean Pines determined that failure to timely submit income and expense information requires dismissal of the complaint subject only to an opportunity for a limited hearing as to the reasonableness of the assessment.
The controlling statute, N.J.S.A. 54:4-34, clearly indicates that no one other than the assessor may send a request for income and expense information. There is no need for an interpretation of the statute.
Where the words of a statute are clear and their meaning and application plain and unambiguous, there is no reason for judicial construction, White v. State Bd. of Tax App., 123 N.J.L. 350, 353, 8 A.2d 819 (Sup. Ct. 1939), and courts cannot arbitrarily expand their scope. It is beyond the power of a court to construe or implement a law beyond the clear, unambiguous language of the statute. Alling Street Urban Renewal Co. v. Newark, 204 N.J. Super. 185, 189, 497 A.2d 1287 (App.Div. 1988); MacMillan v. Taxation Div. Director, 180 N.J. Super. 175, 177, 434 2d 397 (1982); Galloway Tp. v. Petkevis, 2 N.J. Tax 85, 92-93 (Tax Ct. 1980).
[Cumberland Holding Corp. v. Vineland, 11 N.J. Tax 457, 462 (Tax 1991)].
The court further indicated that:
Fundamental principles of statutory construction require that "[if] the [statutory] language is plain, unambiguous and uncontrolled by other parts of the act or other acts upon the same subject the court cannot give it a different meaning." [Citation omitted]. . . .
Our duty is to construe and apply the statute as enacted. We are not at liberty to presume the Legislature intended something other than what it expressed by its plain language. This Court will not engage in conjecture or surmise which will circumvent the plain meaning of the act.
[Cumberland Holding Corp. v. Vineland, supra, 11 N.J. Tax at 462-63, quoting In re Jamesburg High School Closing, 83 N.J. 540, 547-48 (1980)].
The provision of N.J.A.C. 18:12-4.8(a), indicating that a revaluation company may act as an agent of the assessor, refers only to the conduct of the ongoing revaluation process. There is nothing in that section of the regulation that can be read to supersede N.J.S.A. 54:4-34. That statute does not specify the revaluation company as a party with the right to make an independent request for income and expense information.
The City also looks to TCM Properties v. Wharton Bor., 15 N.J. Tax 455 (Tax 1996). In that case, the Tax Court made certain determinations with respect to whether or not a taxpayer's response to a chapter 91 request for income and expense information was sufficient. Before proceeding to that determination, the Tax Court made the following findings:
Based upon the Certifications submitted by the parties and the testimony presented at an evidentiary hearing, I find the following facts:
The assessor's August 5, 1994 mailing to plaintiff contained three documents. One was a letter of transmittal which advised the tax-payer that it was "requested to submit the appropriate income and expense data requested on the attached forms for the year ended December 31, 1993. . . ." and stated that the information would be considered "in determining the assessment for the property for the 1995 tax year." The letter further stated: "If you have any questions with respect to completing the enclosed form, please call [the revaluation company] at [the revaluation company's telephone number]."
Clearly, the Tax Court's finding in that case, that the assessor's letter, directed to the taxpayer, introduced and conferred upon the revaluation company the authority to deal with the Chapter 91 information, distinguishes TCM Properties, supra, from this case. The certifications submitted by the City, by its assessor and a representative of the revaluation company, clearly indicate that the assessor played no part in the Chapter 91...
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