On appeal from the Tax Court of New Jersey.
Pressler, Trautwein and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
These consolidated appeals arise out of three separate direct actions instituted in the Tax Court pursuant to N.J.S.A. 54:3-21 by three separate taxpayers whose respective real property assessments exceeded $750,000 and who challenged their respective assessments as excessive. The common issue raised is whether the defendant-taxing district, if it elects to challenge its own assessment as being too low, must take its appeal by the August 15 deadline date prescribed by statute or whether it may do so beyond that date by filing a counterclaim subject to the relaxable time requirements prescribed by the rules governing the trial divisions of the Superior Court.
In each of these cases, the defendant municipality moved in the Tax Court for leave to file such a counterclaim after August 15. Each of the motions was granted and each of the taxpayer-plaintiffs sought leave to appeal. Leave was granted in all three cases, which we then consolidated for argument and disposition.*fn1 We now reverse all three orders. It is our holding that compliance with the August 15 date is a jurisdictional prerequisite for the prosecution by a defendant municipality of an appeal from its own assessment whether or not the taxpayer first appeals.
The relevant facts are simple and undisputed. Each of the plaintiffs is the owner of commercial property in its respective municipality, each of which underwent a complete reevaluation effective in 1983. F.M.C. Stores Co., whose property was assessed for that year at a total of $5,230,600, filed its appeal in the Tax Court on August 5, 1983. Edison Mall, whose property
was assessed at a total of $1,296,000, and 115 Acres Venture/First National Bank, whose property was assessed at a total of $6,352,500, each filed an appeal in the Tax Court on August 8, 1983. Morris Plains, the defendant in the F.M.C. Stores Co. action, filed a timely answer supporting its assessment.*fn2 On August 29, 1983, it filed a motion seeking leave to amend its answer in order to add a counterclaim challenging its assessment on the ground that it was below the true value of the property and also below the common level in the taxing district. The motion was granted over plaintiff's objection.
In the Edison cases, no responsive pleading was filed by the defendant until March 1984 when, after retaining special counsel, defendant filed a motion in each of the cases seeking leave to file a late answer and counterclaim in order to challenge the assessments as being both below true value and below the common level. Those motions were also granted over plaintiffs' objections.
The conceptual basis of the Tax Court's action in granting the defendants' motions was grounded on R. 8:3-7, which provides as follows:
A counterclaim shall accord, as to form, with R. 8:3-3; as to contents, with R. 8:3-4 and R. 8:3-5 and as to service, with R. 8:5-2 through 5 inclusive.
That rule is, however, silent with respect to the time period in which service of a counterclaim must be made. R. 4:1, however, provides that the rules in Part IV, insofar as applicable, govern the practice and procedure in the Tax Court except as otherwise provided in Part VIII. It was the court's perception in view of R. 4:1 that R. 8:3-7 is therefore subject to the time prescriptions governing the filing of counterclaims in the Superior Court, namely, R. 4:6-1, requiring a counterclaim to be served within 20 days after service of the summons and complaint. It was also the court's view that a Tax Court counterclaim
is subject to R. 4:7-4, which permits a pleader to add an omitted counterclaim by amendment to his pleadings "when justice requires," and to R. 4:9-3, which permits amended pleadings to relate back to the date of the original pleading. This rationale for permitting the filing of a late appeal by way of a counterclaim was adopted by the Tax Court in Curtiss-Wright Corp. v. Wood-Ridge, 2 N.J. Tax. 143 (Tax Ct.1981), relied upon here in the granting of the challenged motions.
We are, however, constrained to disagree with this view because we are persuaded that in respect of a municipal appeal from its own assessment, the Curtiss-Wright holding is contrary to the countervailing statutory dictates of N.J.S.A. 54:3-21. That statute provides in part that
A taxpayer feeling aggrieved by the assessed valuation of his property, or feeling that he is discriminated against by the assessed valuation of other property in the county, or a taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county, may on or before August 15 appeal to the county board of taxation by filing with it a petition of appeal; provided, however, that any such taxpayer or taxing district may on or before ...