On appeal from judgments of the Tax Court, whose opinion in Powder Mill I Assoc. v. Hamilton Tp. is reported at 3 N.J. Tax 439 (Tax Ct. 1981).
Bischoff, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
These consolidated appeals raise common questions concerning the statutory obligation to make payment of real estate taxes pending an appeal of municipal assessments filed directly with the Tax Court.
Each of the plaintiffs filed a complaint in the Tax Court seeking reduction in the assessed valuation of its property for the year 1980. The complaints were filed directly with the Tax Court rather than the county tax board, pursuant to N.J.S.A. 54:3-21 which permits direct appeal to the Tax Court "if the assessed valuation of the property subject to the appeal exceeds $750,000.00. . ." Each plaintiff concedes that at the time of filing of its complaint certain taxes then due and payable for 1980 had not yet been paid. Each of the plaintiffs, however, paid the balance of 1980 taxes, together with accrued interest, while its complaint was pending before the Tax Court. In each of the cases the taxing district moved, after all 1980 taxes were fully paid, to dismiss the complaint for noncompliance with the following provision of N.J.S.A. 54:2-39:
At the time that a complaint has been filed with the Tax Court, 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 of the complaint.
The Tax Court granted each motion and dismissed each complaint because each had been filed when all taxes then due and payable for 1980 had not been paid; its opinion in the first of the captioned matters is reported as Powder Mill I Assoc. v. Hamilton Tp., 3 N.J. Tax. 439 (Tax Ct.1981). Plaintiffs now appeal.
Plaintiffs urge here, as they did below, that N.J.S.A. 54:2-39 applies only if the complaint in the Tax Court seeks review of a judgment of the county tax board. Where the Tax Court action is a direct appeal from an assessment, plaintiffs argue that N.J.S.A. 54:3-27 should apply. That statute provides in relevant part:
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. . . .
Since every initial appeal from a municipal real estate tax assessment, whether to the county tax board or to the Tax Court, must be filed by August 15 of the tax year (N.J.S.A. 54:3-21) and the first three quarters of taxes are due and payable by August 1 (N.J.S.A. 54:4-66), the separate statutory provisions for payment pending appeal do not necessarily impose disparate obligations. The significance of the dispute in these proceedings as to which statute governs is that the Tax Court imposed a sanction for noncompliance with N.J.S.A. 54:2-39 which would not be available for noncompliance with N.J.S.A. 54:3-27.
In Lecross Assoc. v. City Partners, 168 N.J. Super. 96 (App.Div.), certif. den. 81 N.J. 294 (1979), this court considered the effect of a taxpayer's failure to pay taxes pending appeal to the county tax board, as required by N.J.S.A. 54:3-27.*fn1 We concluded that noncompliance with the statute did not deprive the county board of jurisdiction to decide the appeal on its merits because the statute did not disclose any purpose "to condition the power of the reviewing body to adjudicate upon the making of payment by the taxpayer." 168 N.J. Super. at 99. Rather, the taxpayer's obligation must be "crystallized by the municipality through the filing of an appropriate defensive pleading, a motion to dismiss, or even by the institution of tax foreclosure proceedings." Id. at 100. Implicit in that holding is that payment of the taxes after filing of the appeal but before hearing of a motion to dismiss may defeat the motion.
In each of the proceedings here under review, however, the Tax Court found that N.J.S.A. 54:2-39 applied and that noncompliance with that statute deprived the court of ...