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American Hydro Power Partners v. Clifton City

Decided: January 23, 1989.

AMERICAN HYDRO POWER PARTNERS, L.P., A DELAWARE LIMITED PARTNERSHIP, PLAINTIFF-RESPONDENT,
v.
CLIFTON CITY (PASSAIC COUNTY), DEFENDANT-APPELLANT, AND ATTORNEY GENERAL OF NEW JERSEY, INTERVENOR-APPELLANT



On appeal from Tax Court of New Jersey.

J. H. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

City of Clifton (Clifton) appeals a Tax Court decision which ruled that the failure to timely file an added assessment list precludes an added assessment for the year in question, except through the omitted assessment procedure. 9 N.J. Tax. 259 (Tax Ct.1987).

American Hydro Power Partners, L.P. (American) operates a dam and hydro electric plant on the Passaic River in Clifton on lands leased from the Dundee Water Power and Land Co. (Dundee). Beginning in 1985, American made certain improvements to its dam and plant which were completed in April 1986. American's representatives and Clifton's tax assessor discussed the taxability of these improvements at least as early as April 1986. American contended, and continues to contend, that the improvements are not subject to the real property tax because they constitute personal property or are exempt as a dam owned by a public utility. N.J.S.A. 54:30A-49 et seq.

On November 13, 1986, the assessor filed an added assessment list with the Passaic County Board of Taxation. The list

covered various properties in Clifton. It included an added assessment of $1,185,600 for American's improvements, thereby generating an additional tax liability of $39,045.76. The County Tax Board certified Clifton's added assessment list on November 14, 1986. Dundee received a bill for the additional tax on December 11, 1986.

Clifton's attempt to assess American's improvements violated three statutory time frames. Improvements to real property effected after October 1 of a given year and completed between January 1 and October 1 of the following year (the tax year) are assessed as added assessments for the tax year. N.J.S.A. 54:4-63.3.*fn1 The assessor's added assessment list is to be filed in duplicate with the county board of taxation on October 1 of the tax year. N.J.S.A. 54:4-63.5. The statute requires the county board to examine the added assessment list and make any necessary revisions or corrections and deliver a certified copy of the "corrected, revised and completed" duplicate to the municipality's tax collector on or before October 10 of the tax year. Ibid. The tax collector is required to prepare, complete and deliver tax bills to the taxpayer based on the added assessment to the taxpayer "at least one week before

November first." N.J.S.A. 54:4-63.7. The tax is payable on November 1 of the tax year. N.J.S.A. 54:4-63.8. Thus, the statute creates a 30-day window of opportunity to begin and to perfect the added assessment process.

As previously indicated, the assessor filed the added assessment list on November 13, 1986. Therefore, no part of the statutory assessment process was commenced within the 30-day window of opportunity. Indeed, Dundee received the tax bill eleven days after the December 1 deadline for filing an appeal from the added assessment. N.J.S.A. 54:4-63.11. Anticipating this anomaly, the county board had asked the Treasury Department, Division of Taxation, for an extension of the time for appeal. By its letter addressed to the tax board dated December 16, 1986, the Division granted the extension to December 31, 1986.*fn2 The record is devoid of any indication that Dundee or American had been informed of the extension of the time limit for appeal.*fn3

American received the tax bill from Dundee on December 22, 1986 and forwarded the bill to its attorneys who received it on January 2, 1987. American's request for additional time to file an appeal was denied by the county board in its letter of February 10, 1987. On February 17, 1987, American filed a two-count complaint with the Tax Court seeking an order extending the time to appeal ...


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