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City of Newark v. Division of Tax Appeals

April 9, 1951

THE CITY OF NEWARK, RESPONDENT-APPELLANT,
v.
DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY, AND R. H. MACY & CO., TRADING AS L. BAMBERGER & CO., PETITIONERS-RESPONDENTS



On appeal from an order of the Division of Tax Appeals in the Department of the Treasury of the State of New Jersey.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Case, J.

Case

The taxing district of the City of Newark placed a flat assessment of $6,000,000 for the tax year 1949 upon the tangible personal property of the respondent R. H. Macy & Co., trading as L. Bamberger & Co. The taxpayer appealed to the Essex County Board of Taxation where the appeal was dismissed without prejudice. It thereupon appealed to the Division of Tax Appeals and, before hearing, obtained from the Division an order directing the city to answer two interrogatories, namely:

"1. State what portion of the assessment of $6,000,000, under review herein, levied for the year 1949 comprised stock in trade.

"2. State what portion of the assessment of $6,000,000, under review herein, levied for the year 1949 comprised office furniture and other tangible personal property."

The city forthwith took the present appeal to the Superior Court, Appellate Division. We have certified the appeal on our own motion.

There are two questions: first, whether the order was the proper subject of an appeal at that stage of the proceedings; second, whether the order under appeal is effective to compel an answer.

The first question presents little difficulty. The appeal is from an interlocutory order. Rule 4:2-2 specifies that appeals may be taken from certain orders or judgments, whether or not interlocutory, but the order under review is not one of such. Clearly, the order does not relate to an injunction, has no concern with a receivership, does not go to jurisdiction over the subject matter or the persons, and is not necessary in the preservation and maintenance of the res or status quo or in the prevention of irreparable injury; and the appeal, if sustained, would not terminate the litigation. The subject matter of the litigation before the Division of Tax Appeals was an appeal from an action of the Essex County Board of Taxation (R.S. 54:2-35). The jurisdiction of the Division over that subject matter and over the parties is not questioned. A part of appellant's argument is that the burden of proof is upon a taxpayer on an appeal from an assessment to prove overassessment, that this constitutes a status quo and that compelling the city to give the desired information would disturb that status quo. We do not follow the reasoning. The burden is and will remain upon the taxpayer regardless of the information demanded by the interrogatories. The allowing of the interrogatories was procedural and tended to elicit information which, while leaving the taxpayer still with the burden of proof, would provide matter pertinent to the issue. Intermediate processes incident to litigation should not be converted into impediments to speedy trials by innumerable appeals with consequent vexatious delays and miscarriages of justice. Hopper v. Gillet, 105 N.J.L. 150 (E. & A. 1928).

Therefore, the appeal might well be dismissed; but as the litigated issue is one of public importance and is here on our own certification we have concluded to dispose of it upon the merits.

R.S. 54:2-14 provides that the Division of Tax Appeals may make rules, orders and directions as it may deem necessary to carry into effect the objects of the statutory chapter and may make reasonable rules regulating the manner, form, time, terms and conditions of appeals made to it, and R.S. 54:2-16 provides that hearings shall be open to the public and the proceedings shall be conducted in accordance with such rules of evidence and procedure as the board from time to time may prescribe. The granting of that authority appears to be entirely reasonable and to be directed toward the desired end of having litigation there, as elsewhere, conducted in an orderly manner, avoiding unnecessary expense, excessive time and confusion. Division rule XIII, adopted pursuant to that statutory authority, provides:

"Interrogatories, or bills of particulars, may be demanded upon order of the Division, sitting in its entirety, or as a panel, after four days' notice ...


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