Kolovsky, Bischoff and Botter.
[141 NJSuper Page 302] These two consolidated appeals require us to determine whether four radio broadcasting towers erected on land owned by petitioner Westinghouse Broadcasting Co., Inc., constitute real property so as to be subject to taxation by the municipality, N.J.S.A. 54:4-1 et seq. , or whether
they constitute "personal property used in business" so as to be taxable by the State under the Business Personal Property Tax Act, N.J.S.A. 54:11A-1 et seq. The appeals reach this court by diverse routes.
Petitioner owns land in the Township of Lyndhurst on which are located the four transmitting towers in question and a small building which is connected to the towers by a cable and houses equipment used to broadcast over the towers in conjunction with petitioner's operation of radio station WINS. The municipality assessed the land for the year 1968 a total of $247,100, allocated as follows: land -- $128,700; improvements -- $118,400.
Petitioner appealed the assessment to the Bergen County Board of Taxation, which affirmed. A further appeal was taken to the Division of Tax Appeals, where petitioner did not challenge the land assessment but argued that the transmitting towers were personal property so that the assessment for improvements should be limited to $18,400, which it contended was the value of the small building located on the land. The Division of Tax Appeals agreed the towers should be treated as real estate but lowered the assessment of the transmitting towers from $100,000 to $60,000. Petitioner's appeal to this court followed.
The second appeal had its inception when the State assessed the towers as personal property for the year 1968. Petitioner paid the taxes thus assessed and filed a formal claim for refund to preserve its right to a refund should it be determined, contrary to its basic contention, that the towers were subject to taxation as real property. That claim for a refund was denied when the Director of the State Division of Taxation concluded that the towers were properly classified as personal property used in a business, pursuant to N.J.S.A. 54:11A-2. Petitioner appealed to the Division of Taxation which ruled, as it had in the prior appeal, that the towers were real property and directed a refund of the tax paid.
Even though it had been successful in the Division of Tax Appeals in that proceeding, petitioner filed a notice of appeal to this court. A cross-appeal was filed by the State of New Jersey, which sought to retain the personal property tax paid.
The radio transmitting towers in question (four in number) are approximately 200 feet high. They are made of steel angle irons which are fastened together with nuts and bolts and each tower, in turn, is bolted to four concrete pier foundations, each topped by a steel plate. The four foundations are each eight feet high and set on pilings estimated to be ten feet deep in the ground. The life of the towers is indefinite if properly maintained. They may be readily dismantled by removing the bolts which hold them together, transported to another location and reassembled. There exists a limited market for resale of such towers in that they are advertised in trade publications and are occasionally bought and sold, but whether it is economically feasible to do so was the subject of disputed testimony and involved considerations of the costs of labor and transportation. The towers in question have been in place and used since the late 1920s or early 1930s.
The Business Personal Property Tax Act provides that "[a]ll personal property used in business in this State not expressly exempted from taxation or expressly excluded from the operation of this act shall be subject to taxation annually under this act." N.J.S.A. 54:11A-3.*fn1
N.J.S.A. 54:11A-2 provides:
For the purposes of this act, unless the context otherwise requires:
(b) "Personal property used in business" shall mean tangible goods and chattels used or held for use in any business, transaction, activity or occupation ...