On appeal from Division of Tax Appeals.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D.
Denied a rebate on property taxes paid on a summer home in Long Beach Township, Ocean County, New Jersey, appellants Harry and Margaret Rubin, Pennsylvania residents, filed this appeal contending that the Homestead Rebate Act, N.J.S.A. 54:4-3.80 et seq. , is unconstitutional in that by discriminating against nonresidents of New Jersey, it violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, § 2, cl. 1 and denies them equal protection of the law, in violation of the Fourteenth Amendment of the Federal Constitution. They also contend that the act, by failing to conform to the authority conferred by Art. VIII, § 1, par. 5, violates that provision of the New Jersey Constitution. The issues raised come before us for an original determination, the Division of Tax Appeals properly holding that matters of constitutional adjudication fall outside the scope of its allotted jurisdiction.
The few facts pertinent to the issues raised are undisputed. Appellants concededly live in York, Pennsylvania, where the husband, an attorney, maintains his law practice and where the wife works for a governmental agency. The home in New Jersey, on which they paid taxes from which they sought a rebate, is a vacation home used by the couple for a few weeks during the summer and for occasional weekends throughout the year. They candidly admit that this home cannot be regarded as their principal place of residence. Their claim for a homestead rebate for the year was denied on grounds of their nonresidency and on the admitted fact that the home on which property taxes were paid did not constitute their principal place of residence.
The constitutional basis for the Homestead Rebate Act (hereinafter the "act") is an amendment to the New Jersey Constitution adopted in its final form at a general election on November 2, 1976. It reads as follows:
The Legislature may adopt a homestead statute which entitles homeowners, residential tenants and net lease residential tenants to a rebate or a credit of a sum of money related to property taxes paid by or allocable to them at such rates and subject to such limits as may be provided by law. Such rebates or credits may include a differential rate or credit to citizens and residents who are of the age of 65 or more years, or less than 65 years of age who are permanently and totally disabled according to the provisions of the Federal Social Security Act, or are 55 years of age or more and the surviving spouse of a deceased citizen or resident of this State who during his lifetime received, or who, upon the adoption of this amendment and the enactment of implementing legislation, would have been entitled to receive a rebate or credit related to property taxes.
The act, adopted pursuant to the foregoing amendment, reads in pertinent part as follows:
a. Every citizen and resident of this State shall be entitled, annually, to a homestead rebate on a dwelling house and the land upon which such dwelling house is situated, or on a dwelling house assessed as real estate situated on land owned by another or others which constitutes the place of his domicile and which is owned and used by him as his principal residence. If such citizen and resident of this State is of the age of 65 or more years, or is less than 65 years of age yet permanently and totally disabled, as "disabled" is defined in the "New Jersey Gross Income Tax Act" (54A:1-2f), or is the surviving spouse of a deceased citizen and resident of this State who during his lifetime received a real property tax deduction pursuant to this act or P.L. 1963, c. 172 (C. 54:4-8.40 et seq.), upon the same conditions, with respect to real property, notwithstanding that said surviving spouse is under the age of 65 and is not permanently and totally disabled, provided that said surviving spouse was 55 years of age or older at the time of death of said citizen and resident and remains unmarried, said taxpayer shall annually, upon proper claim being made therefor, be entitled to an additional rebate as set forth in section 2 of this act. The said requirement of ownership shall be satisfied by the holding of the beneficial interest where the legal title thereto is held by another for the benefit of the said citizen and resident, or for a resident shareholder in a cooperative or mutual housing corporation as defined herein.
A person who is a tenant for life or a tenant under a lease for 99 years or more or a person who is entitled to and actually takes possession of the land and dwelling house under an executory contract for the sale thereof or under an agreement with a lending
institution which holds title as security for a loan, shall be deemed to be an owner for the purpose of this act.
b. As used in this act "dwelling house" includes any residential property assessed as real property consisting of not more than four units of which not more than one may ...