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Burstyn v. City of Jersey City

January 30, 1995

CAVEN POINT ASSOC. C/O J. BURSTYN, PLAINTIFF,
v.
CITY OF JERSEY CITY, (HUDSON COUNTY) DEFENDANT



The opinion of the court was delivered by: Crabtree

Plaintiff's complaints in these cases seek direct review of the 1992, 1993 and 1994 assessments on plaintiff's property located at 75 Caven Point Road, Jersey City, New Jersey (Block 1494, Lot PL.B.). Defendant moves to dismiss those complaints for failure to pay taxes for 1992, 1993 and 1994, pursuant to N.J.S.A. 54:3-27, which provides, pertinently:

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 total of all taxes and municipal charges due, up to and including the first quarter of the taxes and municipal charges assessed against him for the current tax year in the manner prescribed in R.S. 54:4-66. . . .

Cases have consistently held that dismissal is the appropriate sanction for a taxpayer's failure to comply with the mandate of N.J.S.A. 54:3-27, that taxes be paid as a condition precedent to judicial review of property tax assessments. Muscarelle Dev. Co. v. Manalapan Tp., 13 L. Ed. 2d 330 (Tax 1993), aff'd per curiam N.J. Tax (App. Div. 1994); Rt. 88 Office Assoc. v. Brick Tp., 13 L. Ed. 2d 14 (Tax 1992). Cf. Jefferson-Halsey Roads Associates v. Parsippany-Troy Hills Tp., 13 L. Ed. 2d 138 (App. Div. 1993) (tax payment requirement of N.J.S.A. 54:3-27 as condition precedent to judicial review not violative of Constitutional due process).

The facts are not in dispute.

Plaintiff failed to pay taxes for 1991, 1992, 1993 and the first two quarters of 1994. The property was put up for tax sale and a lien was issued on February 4, 1993; as there was no third party purchaser at that time, defendant became the owner of the lien. On June 30, 1994, the lien was assigned to Bankers Trust Company, to whom a tax sale certificate was issued. Bankers Trust paid $180,908.48 for the certificate, which included taxes for 1991, 1992 and 1993, as well as the first two quarters of 1994, plus interest.

Defendant's motion to dismiss the complaints for 1992, 1993 and 1994 was filed September 28, 1994.

It is now well settled that the purchase of a tax sale certificate by a third party, prior to a taxing district's motion to dismiss, satisfies the tax payment requirement of N.J.S.A. 54: 3-27. Echelon Glen Cooperative, Inc. v. Voorhees Tp., 275 N.J. Super. 441 (App. Div. 1994), certif. denied N.J. (Oct. 26, 1994); Freehold Office Park v. Freehold Tp., 12 L. Ed. 2d 433 (Tax 1992). In the cases before the court, the tax sale certificate was sold before defendant filed its motion to dismiss for nonpayment of taxes.

Defendant argues, however, that the principle declared in Echelon Glen and Freehold Office Park, that the purchase of a tax sale certificate constitutes payment of the tax and thus satisfies the requirement of N.J.S.A. 54:3-27 has been overruled by c. 32, L. 1994, approved May 12, 1994, which amends N.J.S.A. 54:4-66(a) and -67. Section 3 of c. 32, L. 1994 amends N.J.S.A. 54:4-66(a) to read as follows:

Taxes shall be payable the first installment as hereinafter provided on February first, the second installment on May first, the third installment on August first, and the fourth installment on November first, after which dates if unpaid, they shall become delinquent and remain delinquent until such time as all unpaid taxes, including taxes and other liens subsequently due and unpaid, together with interest have been fully paid and satisfied. . . . (Amended portion underscored)

Section 4 of c. 32, L. 1994, amends N.J.S.A. 54:4-67 in part to read as follows:

'Delinquency' means the sum of all taxes and municipal charges due on a given parcel of property covering any number of quarters or years. The property shall remain delinquent, as defined herein, until such time as all unpaid taxes, including subsequent taxes and liens, together with interest thereon shall have been fully paid and satisfied. The delinquency shall remain notwithstanding the issuance of a certificate of sale pursuant to R.S. 54:5-32 and R.S. 54:5-6. . . . (Amended portion underscored)

Section 18 of c. 32, L. 1994, provides: "This act shall take effect immediately."

According to the certification of defendant's tax collector, a lien was created on the subject property for the unpaid 1991 taxes; Lien No. 152860 was issued on February 4, 1993. When there was no purchaser, defendant acquired the tax sale certificate which was sold at private sale, pursuant to N.J.S.A. 54:5-113, to Bankers Trust Company on June 30, 1994. The certificate covered taxes for the years 1991, 1992, 1993 and the first two quarters of 1994. The complaints were filed March 13, 1992 for tax year 1992, February 22, 1993 for tax year 1993 and February 24, 1994 for tax year 1994. As the taxes were not paid for any of the years covered by the complaints, defendant had ample opportunity, before the property was listed for tax sale, to file a motion to dismiss each complaint for failure to comply with N.J.S.A. 54:3-27.

Defendant argues that the provision in N.J.S.A. 54:4-67, as amended by c. 32, L. 1994, declaring that delinquency in payment of taxes continues notwithstanding the issuance of a tax sale certificate must necessarily be incorporated by reference in N.J.S.A. 54:3-27, which requires payment of all taxes for prior ...


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