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Township of Delaware v. Neeld

Decided: September 24, 1958.

TOWNSHIP OF DELAWARE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
AARON K. NEELD, DIRECTOR, DIVISION OF TAXATION IN THE DEPARTMENT OF THE TREASURY OF THE STATE OF NEW JERSEY, AND THE DIVISION OF TAX APPEALS IN THE DEPARTMENT OF THE TREASURY OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[52 NJSuper Page 64] Plaintiff township appeals from the refusal of the Division of Tax Appeals, Department of the Treasury, to accept and hear its appeal contesting the correctness of the 1957 table of equalized valuations promulgated by the Director of the Division of Taxation under the provisions of N.J.S.A. 54:1-35.1, to be used in the calculation and apportionment of state school aid for the school year 1958-59 under the State School Aid Act of 1954 (c. 85, N.J.S.A. 18:10-29.30 et seq.). The refusal was based

on lack of jurisdiction to consider the appeal because of its untimeliness.

N.J.S.A. 54:1-35.1 provides that the Director of the Division of Taxation, Department of the Treasury, shall promulgate a table of equalized valuations on or before October 1 in each year. The table is "deemed to have been promulgated on the day when the director shall have completed the delivery of a certified copy thereof to the Commissioner of Education and the mailing of a certified copy thereof to the municipal clerk of each municipality, and to the secretary of each county board of taxation." N.J.S.A. 54:1-35.4 authorizes the Division of Tax Appeals to review the table "on complaint of any taxing district made within 10 days after its promulgation, or on its own motion, * * *." Rule VII(G) of the Division of Tax Appeals directs that appeals taken pursuant to N.J.S.A. 54:1-35.4 "shall be instituted by complaint filed by a taxing district within ten days after the promulgation of such table. * * *" (Italics ours.)

The undisputed proof is that the 1957 table of equalized valuations was promulgated on September 30, 1957, to be effective October 1, 1957, by serving a certified copy on the Commissioner of Education, mailing one to the municipal clerk of each municipality, and delivering a copy to the secretary of each county board of taxation. In the case of plaintiff township, a certified copy was mailed to Mrs. Margaret Wermuth, Municipal Clerk of Delaware Township, at Erlton, New Jersey, the official post office address for the township. Just what happened to the copy mailed her does not appear. The municipality does not deny that she received it. Although other township officials filed affidavits, Mrs. Wermuth did not, so that we have no record of what she may have done with it.

The affidavit of Edward F. Borden, a member of the township board of assessors, recites that a copy of the equalization table was mailed to him at his home address and came to his attention for the first time on October 9, 1957. He does not indicate who mailed it to him. He

alleges that he was not familiar with the procedure to be taken but assumed that a copy had been delivered to Harry F. Cameron, secretary of the board of assessors, who would take any necessary action. Borden did not communicate the fact that he had received the table until 4:30 P.M. Friday, October 11, when he phoned Township Attorney Yeomans. Yeomans' affidavit confirms the phone call and recites that he immediately prepared a petition of appeal and instructed his secretary to mail it by certified mail to the Division of Tax Appeals in Trenton. Her affidavit, in turn, states that she deposited the petition in the Camden Post Office that same afternoon at 5:15. We also have before us the affidavit of Cameron, the secretary of the local board of assessors, alleging that he never received a copy of the 1957 table and that this was "contrary to what has always been done in the past. In past years all communications have always been sent to me as Secretary of the Board of Tax Assessors." This statement, of course, lacks clarity; we do not know whether Cameron meant that the State normally sent him a copy of the table direct or that the municipal clerk forwarded a copy to him.

Concurrently with the mailing and delivery of the table of equalized valuations to each municipal clerk and county tax board secretary, the Division of Taxation mailed to the assessors' office in each municipality, under separate cover, copies of the lists of usable and non-usable sales transactions it had employed in determining the assessment ratio and equalized valuation of that district. The transmittal letter which accompanied the mailing of the table to each municipal clerk and county tax board secretary, and the mailing of the lists to each assessors' office, particularly noted in three separate places the importance of a timely appeal. It stated:

"* * * Any taxing district desiring to appeal from the Table is required by statute to file its petition with the Division of Tax Appeals on or before October 11, 1957 (N.J.S.A. 54:1-35.4). Failure to file a petition of appeal within the specified time is fatal to the jurisdiction of the Division. * * *

* * * The Division of Tax Appeals acquires jurisdiction only by an appeal timely filed with it. If you feel that the assessment ratio or equalized valuation set forth in the Table for your district was incorrectly determined, it is of utmost importance that a petition of appeal be filed with the Division of Tax Appeals on or before October 11, 1957 so that the interests of your district may be adequately protected.

The Division of Tax Appeals received plaintiff township's appeal through the mail at Trenton on Monday, October 14, 1957. It was returned because filed out of time, the township attorney being informed that the Division was ...


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