On appeal from the final judgment of the Tax Court of New Jersey.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.
This appeal from a dismissal of the complaint by the Tax Court involves the construction and constitutionality of N.J.S.A. 54:2-39, now 54:51A-1(b), with respect to the tax payment requirement on an appeal from the Essex County Board of Taxation to the Tax Court. Plaintiffs contend that the court's strict construction of this provision of the statute was inconsistent with the judicial interpretation given to N.J.S.A. 54:3-27 and violated their constitutional rights of due process and equal protection. We disagree and affirm.
Plaintiffs appealed the assessment on their office building for the 1979 tax year to the Essex County Board of Taxation, which on October 24, 1979 affirmed the assessment. On November 13, 1979 an appeal to the Tax Court was filed, at which time all of the taxes then due for that year had not been paid. Payment of the balance of taxes due was made on December 16, 1979. On defendant's motion, the complaint before the Tax Court was dismissed because of plaintiffs' failure to have paid all of the 1979 property taxes at the time of the filing of the complaint in accord with N.J.S.A. 54:2-39. The court reasoned that the statute clearly required the payment and that such
provision was a jurisdictional requirement for appeal proceedings before the Tax Court.
Plaintiffs argue that the plain language of N.J.S.A. 54:2-39 does not evince a clear and unequivocal intent that taxes for the year involved must be paid as of the date of the appeal from the county tax board to the Tax Court. They contend that the statute must be read consistently with N.J.S.A. 54:3-27, assertedly containing payment language virtually identical to that of the challenged statute, which has been judicially interpreted as not constituting a jurisdictional requirement to a proceeding before a county board or a direct appeal to the Tax Court. It is further suggested that different jurisdictional construction of these two statutes is not supported by legislative intent, inasmuch as the purpose of the tax payment requirement in both statutes was to prevent financial hardship to the municipality resulting from an interruption in the flow of tax revenues. Plaintiffs further assert that the challenged construction violates their equal protection and due process rights.
The defendant municipality contends that the language of N.J.S.A. 54:2-39 evidences an intent to condition the power of the Tax Court to act upon a complaint filed from a county board judgment on the timely payment of taxes, whereas no such intention is evident from the language of N.J.S.A. 54:3-27. Also, it asserts that plaintiffs' equal protection challenge must be rejected because of their lack of standing and the inadequate presentation of this issue to the Tax Court, and because of the waiver resulting from their voluntary election to proceed in accordance with N.J.S.A. 54:2-39 rather than appealing to the Tax Court directly from the assessment. Additionally, the municipality disputes that the tax payment requirement of the subject statute invidiously discriminates against taxpayers or is violative of plaintiffs' constitutional rights.
The Attorney General joins the municipality in asserting the constitutional validity of the statute and argues that its payment requirement is consistent with equal protection and due
process standards and is not within the scope of the tax clause of the New Jersey Constitution.
At the time of the filing of the tax court complaint, N.J.S.A. 54:2-39 provided in pertinent part:
Any party who is dissatisfied with the judgment of the county board of taxation upon his appeal may seek review of that judgment in the Tax Court by filing a complaint with the Tax Court, pursuant to rules of court within 45 days of the service of the judgment of the county board, and the Tax ...