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NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE TAX COURT COMMITTEE ON OPINIONS
: TAX COURT OF NEW JERSEY
JOSEPH AND REMY FRISINA, : DOCKET NOS. 002506-92
: 000064-94
Plaintiffs, : 011900-94
:
v. :
:
CITY OF NEWARK, :
:
Defendant. :
___________________________________
Decided: July 24, 1995
Howard B. Goldberg for plaintiff.
Salvatore Perillo for defendant
(Perillo & Rosenberger, attorneys).
SMALL, J.T.C.
Once again this court is called on to examine the payment
requirements to perfect an appeal to this court or the county board
of taxation added by the amendments to N.J.S.A. 54:3-27 in Chapter
75 of the Laws of 1991. In Milltown Industrial Sites v. Milltown
Borough,
12 N.J. Tax 581 (Tax 1992) we held that the failure of the
appealing taxpayer to pay water, sewer, and electric charges to the
municipality would deprive this court of the power to hear a direct
appeal of a local property tax assessment. In Route 88 Office
Assoc. v. Brick Tp.,
13 N.J. Tax 14 (Tax 1992) we held that the
failure of the appealing taxpayer to pay taxes for prior years as
well as the taxes for the current year would deprive this court of
the power to hear a direct appeal of a local property tax
assessment. In the matter now before me I find that the failure of
the appealing taxpayer to pay water and sewer charges imposed by
the municipality in an appeal to this court from a judgment of the
county board of taxation will not deprive this court of the power
to hear the matter if the municipality has failed to raise the
defense of non-payment of municipal charges at the initial county
board appeal of the assessment.
Defendant, City of Newark, moves to dismiss plaintiffs',
JosephSee footnote 1 and Remy Frisina's, appeals of the Essex County Board of
Taxation's judgments affirming the tax assessments on Block 510,
Lot 47 in the City of Newark for the years 1991, 1993, and 1994.
The grounds for the motions are that plaintiffs had not paid water
and sewer charges on the subject property at the time that the
three appeals were filed and accordingly, pursuant to N.J.S.A.
54:3-27, as amended by Chapter 75 of the Laws of 1991, the
complaints must be dismissed. Plaintiffs argue that N.J.S.A. 54:3-27 does not apply to the three captioned appeals and therefore the
motions to dismiss should be denied.
For each of the three years in question, 1991, 1993, and 1994,
plaintiffs filed a petition of appeal with the Essex County Board
of Taxation challenging the tax assessment on their property at 215
Clifton Avenue, in the City of Newark. In each year the Essex
County Board of Taxation affirmed the assessment. It is undisputed
that at all times the taxpayer was and is delinquent in the payment
of water and sewer charges for the subject property for the years
in question.
The requirement that taxes be paid at the time that appeals
from tax assessments are taken is governed by two statutes:
N.J.S.A. 54:3-27 with regard to initial appeals to the county board
of taxation and to direct appeals to the Tax Court of New Jersey,
and N.J.S.A. 54:51A-1b (formerly N.J.S.A. 54:2-39) with regard to
appeals to the Tax Court of New Jersey from county board judgments.
See Powder Mill I Associates v. Hamilton Tp.
190 N.J. Super. 63, 69
(App. Div. 1983); Lecross Associates v. City Partners,
168 N.J.
Super. 96 (App. Div.), certif. denied
81 N.J. 294 (1979). It is
clear in this state that the payment requirements of the two cited
statutes are different. Schneider v. City of East Orange,
196 N.J.
Super. 587, 594-95 (App. Div. 1984), aff'd
103 N.J. 115, cert.
denied
479 U.S. 824,
107 S. Ct. 97,
93 L.Ed.2d 48 (1986), recently
restated at Milltown Industrial Sites v. Milltown Borough,
12 N.J.
Tax 581, 583 n.1 (Tax 1992). See the recent comprehensive
historical treatment of the tax payment requirements in Muscarelle
Dev. Co. v. Manalapan Tp.,
13 N.J. Tax 330 (Tax 1993), aff'd ______
N.J. Tax ______ (App. Div. 1994); Echelon Glen Co-op v. Voorhees,
275 N.J. Super. 441, 449-50 (App. Div. 1994). Thus, although
failure to comply with N.J.S.A. 54:3-27's requirement that taxes be
paid upon the filing of a petition of appeal with the county board
of taxation or a direct complaint with this court may be cured by
the subsequent payment of taxes before the return date of a motion
to dismiss for failure to pay taxes, the failure to have paid the
requisite amount of taxes at the time that an appeal to this court
is taken from a county board judgment cannot be cured. Powder Mill
I Assoc., supra, 190 N.J. Super. at 66.
Prior to the enactment of Chapter 75 of the Laws of 1991,
N.J.S.A. 54:3-27 read as follows:
A taxpayer who shall file an appeal from an assessment
against him shall pay to the collector of the taxing
district no less than the first three quarters of the
taxes assessed against him for the current tax year in
the manner prescribed in R.S. 54:4-66 even though his
petition to the county board of taxation might request
a reduction in excess of one quarter of the taxes
assessed for the full year. . . .
The payment of part or all of the taxes upon any
property, due for the year for which an appeal from an
assessment upon such property has been or shall hereafter
be taken, or of taxes for subsequent years, shall in
nowise prejudice the status of the appeal or the rights
of the appellant to prosecute such appeal, before the
county board of taxation, the State Board of Tax Appeals,
or in any court to which the judgment arising out of such
appeal shall be taken, except as may be provided for in
section 2 of this act [i.e. N.J.S.A. 54:2-39, since
repealed and enacted as N.J.S.A. 54:51A-1b].
[N.J.S.A. 54:3-27 (emphasis added).]
and N.J.S.A. 54:51A-1b read as follows:
At the time that a complaint has been filed with the tax
court seeking review of judgment of county tax boards,
all taxes or any installments thereof then due and
payable for the year for which review is sought must have
been paid. No interest shall be due and payable by the
appellant for the period from November 1 of the current
tax year to the date of filing the complaint.
[N.J.S.A. 54:51A-1b (emphasis added).]
Chapter 75 of the Laws of 1991 amended N.J.S.A. 54:3-27 to
read as follows:
A taxpayer who shall file an appeal from an assessment
against him shall pay to the collector of the taxing
district no less than the total of all taxes and
municipal charges due, up to and including the first
quarter of the taxes and municipal charges assessed
against him for the current tax year in the manner
prescribed in R.S. 54:4-66See footnote 2. . .
The payment of part or all of the taxes upon any
property, due for the year for which an appeal from an
assessment upon such property has been or shall hereafter
be taken, or of taxes for subsequent years, shall in
nowise prejudice the status of the appeal or the rights
of the appellant to prosecute such appeal, before the
county board of taxation, the tax court, or in any court
to which the judgment arising out of such appeal shall be
taken, except as may be provided for in R.S. 54:2-39
[since repealed and enacted as N.J.S.A. 54:51A-1b].
[N.J.S.A. 54:3-27 (emphasis added).]
Thus, after the effective date of this amendment, taxpayers
were required to pay municipal charges as well as taxes, see
Milltown Industrial Sites, supra, and were required to pay taxes
for prior years as well as for the current year in order to
maintain a direct appeal to the Tax Court or an initial appeal to
the county board of taxation. See Route 88 Office Assoc., supra,
13 N.J. Tax at 18.
Defendant, City of Newark, in its brief clearly presents the
issue to be decided in this case: does N.J.S.A. 54:3-27's
requirement that municipal charges be paid prior to the filing of
a complaint with the Tax Court or a petition to the county board of
taxation also apply to cases in which an appeal is taken to this
court from a judgment of the county board of taxation?
Defendant's fundamental argument is that it simply does not
make sense to have different tax and other payment requirements for
appeals filed directly with the Tax Court and for appeals filed
with the Tax Court from county board judgments. However, both this
court and the Appellate Division have disposed of that argument and
indicated that there is a rational basis for having different
payment requirements. Schneider, supra and Powder Mill I Assoc.,
supra. Although plaintiffs' claim may not have survived a motion to
dismiss for failure to pay water and sewer charges if that motion
had been made at the Essex County Board of Taxation, by failing to
make that motion at the county board, defendant municipality has
waived its rights to challenge the jurisdiction of this court on
those grounds at this time. Lecross Associates, supra, 168 N.J.
Super. at 99-100. But see Lamantia v. Howell Tp.,
12 N.J. Tax 347,
353 (Tax 1992) (In general, if a county board does not have
jurisdiction to hear a matter neither does the Tax Court).
However, Lecross, supra, and subsequent cases make clear that if a
party fails to raise the non-payment issue at the county board, the
issue of the county board's jurisdiction to hear the matter has
been waived and its judgment is valid.
Since the statutory language in the two jurisdictional
standards (N.J.S.A. 54:3-27 and N.J.S.A. 54:51A-1b) is different
and since it is permissible to have different standards, there is
simply no reason for this court to read the water and sewer charge
payment requirement of N.J.S.A. 54:3-27 into the tax payment
requirement of N.J.S.A. 54:51A-1b. If the legislature had intended
to do that they clearly could have done so. Schneider, supra, 196
N.J. Super. at 594-95. Having before them the several clear
interpretations of this court and the Appellate Division, that the
standards were different (Powder Mill, supra, Schneider, supra,
Milltown Industrial Sites, supra), it would be presumptuous of this
court to read the explicit amendment of N.J.S.A. 54:3-27 into the
distinctly different language of N.J.S.A. 54:51A-1b. If the
legislature intended that the municipal charges payment requirement
be made a part of N.J.S.A. 54:51A-1b as well as N.J.S.A. 54:3-27
they could have done so explicitly.
Defendant also argues that the plain meaning of N.J.S.A. 54:3-27 is that it applies to all tax appeals. The courts of this state
have consistently interpreted that statute as applying only to
direct appeals to this court and initial appeals to the county
board of taxation and not applying to appeals from the county
boards to this court which are governed by N.J.S.A. 54:51A-1b.
Schneider, supra, 196 N.J. Super. at 595. Given the Appellate
Division's clear reading of the statute, I am not free to read
N.J.S.A. 54:3-27 as applying to all appeals. N.J.S.A. 54:3-27
applies only to direct appeals to this court and to the filing of
petitions of appeal with the county board of taxation. It does not
apply in this case to an appeal from the county board of taxation
to this court.
Accordingly, since the payment requirement of N.J.S.A. 54:51A-1b which governs the appeals from the county board in this case was
not amended by Chapter 75 of the Laws of 1991, the requirement now
found in N.J.S.A. 54:3-27 will not be read into the former statute
and the defendant's motion must be denied.
Plaintiff has argued that even if N.J.S.A. 54:3-27's
requirement for the payment of water and sewer charges were
applicable in this case it would not be applicable to the 1991 tax
appeal because the amendment of N.J.S.A. 54:3-27 by Chapter 75 of
the Laws of 1991 was not effective until January 1, 1992. See L.
1991, c. 75 §§30 and 50. Even though the complaint in this matter
was filed after that date, plaintiffs argue it is not applicable to
1991 tax appeals. Having found that N.J.S.A. 54:3-27's
requirements do not apply in this case, I do not address the issue
of whether N.J.S.A. 54:3-27's requirements, as amended by L. 1991
c. 75, would apply to appeals of the 1991 tax year which are taken
after January 1, 1992. Since direct appeals covered by N.J.S.A.
54:3-27 had to be taken by August 15, 1991, (April 1 for all
subsequent years, N.J.S.A. 54:3-21 as amended by §§28 and 50 of L.
1991, c. 75.) it is unlikely that any direct or initial appeal of
a 1991 tax assessment would have been filed after January 1, 1992.See footnote 3
Defendant's motions are denied.
Footnote: 1 The plaintiff, Joseph Frisina, was the tax assessor of the
City of Newark during the years in question. Because of the close
working relationship between the assessor and the municipal
attorney, Newark appointed special counsel to represent its
interests in this case. Although the municipal tax assessor is not
the defendant in a municipal tax appeal, he does play an important
role in the defense of municipal tax appeals. Clinton Tp. Citizens
Committee v. Clinton Tp.,
185 N.J. Super. 343 (Law Div. 1982).
Municipalities should have in place a system for appointing acting
tax assessors to assist in the defense of appeals by their tax
assessor brought in his or her capacity as a taxpayer.
Footnote: 2 The amendment of N.J.S.A. 54:3-27 to add the requirement
that municipal charges and prior year's taxes be paid, coincided
with the change in the appeal date from August 15 to April 1, thus
changing the current year's tax payment requirement from three to
one quarterly payment. See N.J.S.A. 54:3-21, as amended by L. 1991,
c. 75, §§ 28, 30, and 50.
Footnote: 3 See N.J.S.A. 54:3-21.4 permitting extensions of time for
filing appeals to county boards of taxation (no similar provision
provides for extensions of time to file direct appeals with this
court). I am not aware of any case in which an extension has been
granted to a date after the end of the current calendar year. No
extensions to file tax appeals were granted past October 16, 1991,
for the 1991 tax year.
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