On appeal from a final judgment of the Tax Court of New Jersey and from a final judgment of the Superior Court of New Jersey, Law Division, Middlesex County, 5 N.J. Tax 216 (1983).
Bischoff, Petrella and Brody. The opinion of the court was delivered by Bischoff, P.J.A.D.
This is a consolidated appeal from the dismissal of plaintiff's actions pending in the Superior Court and in the Tax Court. The appeal raises basic procedural issues.
Plaintiff Exxon Corporation, as part of its business, owns 394 gasoline service stations in 218 municipalities in all 21 counties of the State of New Jersey. It also leases land in 102 municipalities on which 138 service stations are built. In addition, it furnishes equipment including fuel storage tanks to operators at an additional 348 service stations in 216 municipalities. Plaintiff alleges it is liable for all property taxes on the service stations it owns and is liable, either directly or by contractual agreement, for all real and personal property taxes on the stations it leases.
Pursuant to a special ruling issued in 1966 by defendant Director of the Division of Taxation (Director), underground fuel storage tanks have been treated as tangible personal property used in a business, and as such, are taxable under the New Jersey Business Personal Property Tax Act. N.J.S.A. 54:11A-1 et seq.
On Oct. 20, 1981 the Director issued a letter addressed to "all assessors, county boards of taxation . . . also all gasoline companies
involved" that as of Jan. 1, 1982 all "underground fuel storage tanks are to be assessed locally as real property" and "not as personal property for State Business Personal Property Tax purposes." The reason for the change in position was stated to be "to clarify the taxing authority for such tanks and eliminate the possibility of their duel [ sic ] or double taxation."
On Nov. 12, 1981 the Middlesex County Board of Taxation issued a bulletin addressed to all assessors providing "This is to advise you that the Board hereby orders that all underground fuel storage tanks are to be assessed for the 1982 tax year."
In Nov. 1981 plaintiff was notified by the township assessor for the defendant East Brunswick Township that real property assessments had been increased for the year 1982 to include the value of the fuel storage tanks on the property. Plaintiff also alleges it received notice of similar increases from 24 taxing districts.
The mandate contained in the Director's letter of Oct. 20, 1981 became effective as an amendment to N.J.A.C. 18:24-24.2 on April 5, 1982. It provided that underground fuel storage tanks and the concrete poured to prevent them from floating were no longer to be deemed personal property for the purposes of the sales tax act.
On June 9, 1982 plaintiff filed a four-count complaint in the Tax Court against three townships, the Middlesex County Board of Taxation and the Director. In the first count plaintiff sought an order a) certifying the suit as a class action and designating the named municipalities as representatives of all taxing jurisdictions within the State in which plaintiff owns or leases service stations having underground fuel storage tanks; b) declaring the storage tanks not subject to local property taxes but taxable by the State as business personal property, and c) directing that all municipal assessments on its fuel storage tanks be vacated and that all class ...