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J. L. Musestelle Inc. v. Township of Saddle Brook

New Jersey Tax Court


February 10, 1995

J. L. MUSESTELLE, INC., PLAINTIFF,
v.
TOWNSHIP OF SADDLE BROOK, DEFENDANT

The opinion of the court was delivered by: Pizzuto

Before Presiding Judge ANDREW, and Judges AXELRAD, CRABTREE, DOUGHERTY, HAMILL, LASSER, PIZZUTO, RIMM and SMALL, pursuant to R. 8:8-6.

Plaintiff contests a 1994 local property tax assessment by a complaint filed directly with the Tax Court pursuant to N.J.S.A. 54:3-21. Defendant has moved to dismiss the action on the ground that taxes and municipal charges due through the first quarter of 1994 have not been paid in full, as required by N.J.S.A. 54:3-27. It is undisputed that full payment of the required amount has not been made.

The motion was argued before the entire Tax Court pursuant to R. 8:8-6 on October 20, 1994. Since the date of argument, the Appellate Division has decided consolidated appeals from Tax Court decisions that reached inconsistent results in the Disposition of motions to dismiss under N.J.S.A. 54: 3-27. The consolidated matters include the appeal concerning the 1993 assessment on the property whose 1994 assessment is the subject of this action.

The decision of the Appellate Division, J.L. Muscarelle, Inc. v. Saddle Brook, -- N.J. Tax -- (App. Div.1994), authoritatively resolves the conflict within this court and requires dismissal of this action. Further Discussion, reflecting the reasoning of individual Judges, is not necessary to the Disposition of the matter and is appropriately found in the separate concurrences of those Judges.

Judgment shall be entered accordingly.

RIMM, J.T.C., Concurring.

I concur completely with the opinion of Judge Pizzuto for the court. In view of the strong pronouncement of the Appellate Division in J.L. Muscarelle, Inc. v. Saddle Brook Tp.,-- N.J. Tax -- (App.Div.1994), no purpose would normally be served by adding anything to his opinion which relies on that Appellate Division decision holding that "the tax payment prerequisite does not violate a taxpayer's due process rights." Id. at --. (Slip opinion at 4).

In its short opinion, the Appellate Division said it all; and, by its affirmance of Muscarelle Development Co., Inc. v. Manalapan Tp., 13 N.J. Tax. 330 (Tax 1993), and its reference to the opinion entering the one judgment which it reversed, the Appellate Division considered all the due process arguments which have been made in this case. I write in concurrence only to emphasize the insidious consequences which would follow from the determination urged by plaintiff in this matter.

In the context of this case, taxpayers may be divided into two groups: those who pay their taxes on time and those who do not. If we adopted plaintiff's position, those taxpayers who do not pay their taxes on time would be encouraged to file frivolous tax appeals. Those taxpayers who normally pay their taxes on time would be encouraged to delay making those payments while they prosecute appeals. The only loss they would face is the difference between the interest paid to the municipality and the cost of money. Both situations would force municipalities to settle to avoid the expense of otherwise unnecessary litigation and to avoid significant increases in tax rates in order to make up for unpaid taxes. And while the matters are in the Tax Court, municipalities will be deprived of the funds necessary to operate and to provide services to all taxpayers, except upon incurring additional expense for interest on money which they will have to borrow. The unavoidable result would be the imposition of an unnecessary financial burden on other taxpayers by increasing the tax rate in a subsequent year.

"A municipality's revenues depend on local property taxes, and the legislative history of L. of 1991, c. 75 [ N.J.S.A. 54:3-27] refers to the 'increasingly strained fiscal conditions' of local municipalities." Route 88 Office Assoc. v. Brick Tp., 13 N.J. Tax. 14, 20 (Tax 1992). Indeed, because of the problems faced by municipalities on account of the non-payment of taxes, they are forced to take various steps to collect real estate taxes. For example, Hamilton Township, Atlantic County, New Jersey has introduced two separate ordinances intended to pressure late taxpayers into paying delinquent taxes.

The governing body declared open season Monday on delinquent taxpayers. . . . 'Every municipality is going after people who are not paying their taxes,' [a Committeewoman said]. 'We have to protect the citizens who are'. . . . 'I think anything we can do to encourage people to pay their taxes will help all the people of Hamilton Township,' [a Committeeman said].

[Steven R. Levine, Hamilton Declares War on Delinquent Taxpayers, The Press of Atlantic City, November 23, 1994, at C7.]

The acceptance of the argument made by the taxpayer in this matter

could deprive a municipality of substantial tax revenues while an appeal is pending. N.J.S.A. 40A:4-40 emphasizes the legislative concern for fiscal responsibility in the face of unpaid taxes. This statutory provision requires a municipality to set aside a 'reserve for uncollected taxes' in its budget and to cover the anticipated shortfall in the collection of the subsequent year's taxes. Since municipalities must include this reserve in their yearly budgets, they must artificially inflate their fiscal needs and increase tax rates.

[ Route 88 Office Assoc. v. Brick Tp., supra, 13 N.J. Tax. at 20-21.]

The requirement that taxes be paid for the Tax Court to have jurisdiction over the contest of a local property tax assessment is to avoid putting the burden of an appealing taxpayer's unpaid property taxes on the other taxpayers in the taxing district, "a burden reflected in the reserve for uncollected taxes, and thus in the tax rate." Schneider v. City of East Orange, 196 N.J. Super. 587, 593, 483 A.2d 839 (App.Div.1984) (quoting Statement to Assembly, No. 2147, July 11, 1977) affd o.b., 103 N.J. 115, 510 A.2d 1118, cert. denied, 479 U.S. 824, 107 S. Ct. 97, 93 L. Ed. 2d 48 (1986). In the Schneider case, the Appellate Division said, "the interest of the municipality in receiving timely payment of taxes is clearly significant and outweighs any incidental burden imposed upon plaintiffs, and other taxpayers similarly situated, by this jurisdictional requirement." Id. at 595, 483 A.2d 839. "It is well settled that this interest of the municipality in receiving timely payment of taxes may be protected. Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 101 S. Ct. 1221, 67 L. Ed. 2d 464 (1981)." Route 88 Office Assoc. v. Brick Tp., supra, 13 N.J. Tax. at 23.

The argument of the taxpayer in this case has been effectively disposed of in Town of West Orange v. Block 107, 162 N.J. Super. 314, 392 A.2d 1213 (App.Div.1978):

The collection of admittedly due taxes cannot thus be permitted to rest with the unilateral business judgment of a taxpayer. To sustain defendants' contention as a general rule might well seriously frustrate the collection of tax revenues required for governmental operations. The condition imposed by the court below for the stay properly compels the taxpayer to make its commercial choice in advance of the ultimate determination of the tax appeals by the payment of taxes that are conceded to be due. That result, which is just to both the taxpayer and the municipality, merely requires good faith equitable conduct by the taxpayer before it may obtain relief from a pending tax foreclosure action.

[ Id. at 317, 392 A.2d 1213.]

In Town of West Orange, a tax lien foreclosure matter, the taxpayer sought a stay of the entry of a judgment of foreclosure until pending tax appeals could be heard. However, the taxpayer had failed to pay the amount of taxes then required by the statute to be paid in order to prosecute a tax appeal. To allow the taxpayer to pursue the tax appeals, the lower court conditioned a stay of the foreclosure action on the payment of the taxes required to be paid under the then applicable statute. When the taxpayer refused to pay the taxes, the court entered judgment in the tax lien foreclosure action. The Appellate Division affirmed.

The Town of West Orange case is a telescoped version of precisely what is before this court now and what was before the Appellate Division in J.L. Muscarelle, Inc. v. Saddle Brook Tp., supra. Contrary to the assertion that the present case is a case of first impression, the very issue raised by the taxpayer in this case was decided adversely to it in Town of West Orange. The court held that judgment in the tax foreclosure action could be entered without the taxpayer having a hearing on its assessment if taxes were not paid as required by the statute.

The critical claim of a denial of due process is vitiated by the complete failure of the taxpayer to prove, or even claim, that it is unable to pay its taxes. It is difficult to understand how a taxpayer is being deprived of due process of law by making a business decision not to pay his taxes.

The motion to dismiss plaintiff's complaint should be granted, and I concur.

I am authorized to state that Judges CRABTREE, SMALL, HAMILL and AXELRAD join in this opinion.

HAMILL, J.T.C., Concurring.

I concur in the opinion of Judge Pizzuto for the court. I add the following comments because they express the views of several members of the Tax Court.

In this local property tax matter plaintiff filed a direct appeal to the Tax Court of the 1994 assessment on Block 801, Lot 6 in Saddle Brook. The assessment totaled $10,000,000. Pursuant to N.J.S.A. 54:3-27 the taxing district moved to dismiss the complaint for nonpayment of taxes. The statute requires that a taxpayer who appeals an assessment must pay all taxes and municipal charges due, up to and including the first quarter of the current year. The tax collector of Saddle Brook certified that there were outstanding taxes on the property for all of 1993 and the first quarter of 1994 as well as unpaid water bills. As of the end of August 1994 when the collector's certification was filed, the total liability, including municipal charges, interest and penalty, amounted to $258,300.96, of which $43,225 was the payment due for the first quarter of 1994.

In support of its motion, defendant taxing district maintains that, under the decided cases, the Tax Court should not hear the matter due to plaintiff's failure to pay the taxes.

In response, plaintiff taxpayer maintains, first, that as a matter of statutory construction, dismissal of the complaint is not the appropriate sanction. The correct sanction, according to plaintiff, is the accrual of interest and penalties and eventually the sale of a tax certificate. Second, plaintiff maintains that dismissal of the complaint without a hearing may violate the Uniformity Clause of the state constitution because, without a hearing, there is no way of knowing whether the assessment is reasonable and nondiscriminatory. Third, according to plaintiff, dismissal of the complaint without a hearing would violate the due process guarantees of the federal and state constitutions unless plaintiff is accorded a reasonableness hearing of the type permitted under Ocean Pines, Ltd. v. Point Pleasant Bor., 112 N.J. 1, 547 A.2d 691 (1988). Unless a reasonableness hearing is provided, plaintiff asserts, the present statutory scheme denies it the opportunity to be heard at a meaningful time and in a meaningful manner because, once the complaint is dismissed, there is no opportunity to challenge the assessment.

I.

Much of plaintiff's argument that dismissal of the complaint is not the appropriate sanction under N.J.S.A. 54:3-27 was addressed previously by this court in Joseph L. Muscarelle Dev. Co., Inc. v. Manalapan Tp., 13 N.J. Tax. 330 (Tax 1993), aff'd sub nom J.L. Muscarelle, Inc. v. Saddle Brook Tp.,-- N.J. Super. -- (or -- N.J. Tax. --) (App.Div.1994). *fn1 As made clear in the Tax Court's prior published opinion, decisions of the Appellate Division have consistently confirmed that dismissal of the complaint is the appropriate sanction. Muscarelle, supra, 13 N.J. Tax. at 335-38. An additional pertinent case not discussed in the prior Muscarelle opinion is Jefferson-Halsey Roads Assocs., L.P. v. Parsippany-Troy Hills Tp., 13 N.J. Tax. 138 (App.Div.1993), appeal dismissed for failure to state a substantial constitutional issue, 135 N.J. 298, 639 A.2d 299 (1994). There, as in its earlier decisions, the Appellate Division affirmed the Tax Court's dismissal of a local property tax complaint under N.J.S.A. 54:3-27.

Plaintiff suggests that, because those cases do not deal specifically with the language in N.J.S.A. 54:3-27 requiring that taxes be paid "in the manner prescribed in R.S. 54:4-66," they do not support the Conclusion that dismissal is the appropriate sanction. Plaintiff's argument is no longer viable because in its recent Muscarelle decision the Appellate Division affirmed this court's opinion in Joseph L. Muscarelle Co., Inc. v. Manalapan Tp., supra. In that opinion this court dealt at length with plaintiff's argument that the Appellate Division had failed to address the particular statutory language on which plaintiff relies. It must thus be presumed that in reaching its recent decision, the Appellate Division considered plaintiff's argument and rejected it even though it did not address the argument in precise terms. See State v. Bianco, 103 N.J. 383, 393, 511 A.2d 600 (1986) ("There is no requirement of law or in the court rules that an appellate court must accompany its decision by a written opinion, except in the case of a Judge Dissenting in the Appellate Division.").

Plaintiff suggests that the omission of language in N.J.S.A. 54:3-27 mandating dismissal of the complaint for nonpayment of taxes indicates that the Legislature did not contemplate any such sanction. Plaintiff, however, concedes that dismissal is the appropriate sanction under N.J.S.A. 54:51A-1(b), the provision requiring payment of taxes on an appeal from the county board. That provision is equally devoid of language requiring dismissal of the complaint when the taxes are not paid, and both provisions are equally mandatory in tone, N.J.S.A. 54:3-27 specifying that the taxes "shall" be paid and N.J.S.A. 54:51A-1(b) specifying that the taxes "must" be paid. If dismissal is appropriate under N.J.S.A. 54:51A-1(b), dismissal is appropriate under N.J.S.A. 54:3-27. Schneider v. East Orange, 196 N.J. Super. 587, 483 A.2d 839 (App.Div.1984), aff'd o.b., 103 N.J. 115, 510 A.2d 1118, cert. denied, 479 U.S. 824, 107 S. Ct. 97, 93 L. Ed. 2d 48 (1986) (dismissal under N.J.S.A. 54:51A-1(b); Jefferson-Halsey Roads Assocs., L.P. v. Parsippany-Troy Hills Tp., supra (dismissal under N.J.S.A. 54:3-27).

During argument plaintiff suggested that the only purpose of N.J.S.A. 54:3-27 in its present form is to mandate payment of a specified portion of the taxes so as to permit a taxing district to sell a tax certificate if a taxpayer fails to pay the requisite taxes. This was not possible under the pre-1975 version of the statute, which permitted the taxpayer to pay only that portion of the taxes which were not in dispute. Under that scheme, "Upon payment the municipality was thereafter generally barred from pursuing tax foreclosure proceedings pending Disposition of the tax appeals." Lecross Assocs. v. City Partners, 168 N.J. Super. 96, 98, 401 A.2d 1099 (App.Div.) certif. denied, 81 N.J. 294, 405 A.2d 837 (1979); Rice v. Newark, 136 N.J. Eq. 53, 55, 40 A.2d 13 (Ch. 1944). To the contrary, the legislative history of the 1975 amendment makes clear that the Legislature intended to require payment of a specified portion of the taxes so as to alleviate the financial hardship on taxing districts during the pendency of tax appeals. The Legislature gave no indication that the purpose of the amendment was to permit the sale of a tax certificate. See Senate Revenue, Finance and Appropriations Committee Statement to A. 1276, quoted in Lecross Assocs. v. City Partners, supra, 168 N.J. Super. at 98-99, 401 A.2d 1099. Sale of a tax certificate does not replace the prompt payment of delinquent taxes. A municipality may not sell a tax certificate until April 1 of the year following the year in which the taxes become delinquent (or October 1 of that year for municipalities on the State's fiscal year). N.J.S.A. 54:5-19. Nor is it certain that a third party will buy a certificate, particularly when the taxes on the property are in dispute. As pointed out in this court's prior Muscarelle opinion, 13 N.J. Tax. at 337-38, had the Legislature merely intended to permit a municipality to sell a tax certificate and otherwise to leave a municipality to its existing remedies of interest and penalties, it would simply have repealed N.J.S.A. 54:3-27, leaving in place the statutory deadlines for paying taxes that are contained in N.J.S.A. 54:4-66, the provision for interest on delinquent taxes contained in N.J.S.A. 54:4-67, and the Tax Sale Law, N.J.S.A. 54:5-1 to -129.

II.

Plaintiff asserts that dismissal of its complaint without a hearing could lead to a violation of the Uniformity Clause of the state constitution because there would be no determination that the assessment was set by the "same standard of value" as other properties in the taxing district.

The Uniformity Clause provides:

Property shall be assessed for taxation under general laws and by uniform rules. All real property assessed and taxed locally or by the State for allotment and payment to taxing districts shall be assessed according to the same standard of value, except as otherwise permitted herein, and such real property shall be taxed at the general rate of the taxing district in which the property is situated, for the use of such taxing district.

[ N.J. Const. art. VIII, § 1, P 1(a).]

Without doubt the Uniformity Clause guarantees a substantive right to equality in real property taxation. Murnick v. Asbury Park, 95 N.J. 452, 458, 471 A.2d 1196 (1984). This substantive right, however, can be lost by procedural default. Examples include a failure to abide by the April 1 deadline for filing a local property tax appeal (N.J.S.A. 54:3-21); the 45 day requirement for appealing a decision of a county board of taxation to the Tax Court (N.J.S.A. 54:51A-9a); failure to pay taxes on an appeal from the county board to the Tax Court (N.J.S.A. 54:51A-1(b), and failure to prosecute a local property tax appeal at the county board (N.J.S.A. 54:51A-1c(2)). Since the appeal of a local property tax assessment is a statutory cause of action, an appealing party must comply with all statutory requirements for maintaining the appeal. F.M.C. Stores Co. v. Morris Plains Bor., 100 N.J. 418, 424, 495 A.2d 1313 (1985).

Under plaintiff's theory, any procedural default would trigger a violation of the Uniformity Clause. The theory is untenable. Unless plaintiff can establish that it is totally incapable of paying the taxes, due perhaps to indigency, its failure to pay the requisite taxes is no different conceptually than a failure to timely file. Counsel conceded during argument that plaintiff is not indigent, stated that he was not asserting that plaintiff could not pay the taxes, conceded that none of plaintiff's properties, to counsel's knowledge, had been lost through tax foreclosure, and conceded that, when another municipality had scheduled a tax sale of one of plaintiff's properties, plaintiff had paid the taxes to prevent the sale. Plaintiff does not suggest that the present assessment is egregious or arbitrary, maintaining that whether this is so cannot be determined until an appraisal report is obtained. Thus, plaintiff's constitutional right to uniformity is not at risk because plaintiff is helpless to protect that right. It appears that plaintiff has failed to pay the taxes as a result of a business decision not to do so. Under these circumstances there is no violation of the Uniformity Clause.

III.

Plaintiff maintains that the denial of any opportunity to be heard concerning the reasonableness of the assessment violates its rights to procedural due process.

The short answer is that in Jefferson-Halsey Roads, supra, the Appellate Division squarely rejected plaintiff's argument and that in the same case our Supreme Court dismissed the taxpayer's appeal on the ground that no substantial constitutional issue was presented. The taxpayer in Jefferson-Halsey Roads had filed a direct appeal, which the Tax Court dismissed on the township's motion under N.J.S.A. 54:3-27. The taxpayer argued that its inability to pay the taxes should lead to an exception to the requirements of N.J.S.A. 54:3-27 in order to preserve its due process rights. The Appellate Division stated that it was bound by the holding in New York, Susquehanna and W.R.R. Co. v. Vermeulen, 44 N.J. 491, 501-03, 210 A.2d 214 (1965). The Jefferson-Halsey Roads court added that the taxpayer's reliance on Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), was misplaced because there was no dispute in Boddie that the particular individual seeking access to the courts was indigent whereas the taxpayer before it plainly could not claim indigency since its property had an assessed value of $367,000. Jefferson-Halsey Roads, supra, 13 N.J. Tax. at 139-40.

As in Jefferson-Halsey Roads, the statute at issue is N.J.S.A. 54:3-27. This means that plaintiff, like the taxpayer in Jefferson-Halsey Roads, had no prior hearing before the county tax board. The assessment on plaintiff's property is $10 million, making any argument of inability to pay even less persuasive than in Jefferson-Halsey Roads. Being unable to establish its inability to pay, plaintiff cannot mount an "as applied" constitutional challenge to the tax payment requirement, and the tax payment requirement is clearly valid on its face. Compare Boddie v. Connecticut, supra, in which the Supreme Court invalidated a filing fee as applied to an indigent couple seeking a divorce, with Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), sustaining the constitutionality of a state statute that required certain shareholders in a shareholders' derivative suit to post security to cover the defense's costs in the event the plaintiffs did not prevail.

The Appellate Division's decision in Echelon Glen Coop., Inc. v. Voorhees Tp., 275 N.J. Super. 441, 646 A.2d 498 (App.Div.), certif. denied, 138 N.J. 272, 649 A.2d 1291 (1994), lends further support to the Conclusion that plaintiff's due process argument is foreclosed. There, the Appellate Division upheld the Tax Court's denial of the taxing district's motion to dismiss the complaint for nonpayment of taxes under N.J.S.A. 54:3-27. The Tax Court had denied the motion on two grounds. The first was the fact that the taxpayer was in receivership and concededly could not pay the taxes. The second was that the taxing district had sold a tax certificate on the property prior to the return date on the township's motion to dismiss. The Appellate Division first rejected the lower court's ruling based on the indigency of the taxpayer. Citing Jefferson-Halsey Roads, supra, it stated, "We recently rejected the notion that there is a constitutional right to pursue a tax appeal before payment of the taxes." Echelon Glen, supra, 275 N.J. Super. at 445, 646 A.2d 498. The court then went on to conclude that the sale of a tax certificate prior to the return date on a motion to dismiss for nonpayment of taxes defeats the motion. Relying on Freehold Office Park v. Freehold Tp., 12 N.J. Tax. 433 (Tax 1992), the Appellate Division reasoned that, since the sale of a tax certificate produced the tax revenues that would otherwise have been paid by the taxpayer, the purpose of N.J.S.A. 54:3-27 to ensure an uninterrupted flow of tax revenues during the pendency of a local property tax appeal was fulfilled and there was no need to dismiss the complaint for nonpayment of taxes. Echelon Glen, supra, 275 N.J. Super. at 450, 646 A.2d 498. Not only does the case involve the precise statute at issue in the present matter, but it appears to foreclose even the hypothetical situation posed by plaintiff of a taxpayer who cannot afford to pay the taxes necessary to maintain a local property tax appeal.

Two earlier decisions of the Appellate Division reach a similar Conclusion that requiring the payment of taxes as a condition for maintaining a local property tax appeal does not violate the Due Process Clause. Both cases involve the tax payment requirement of N.J.S.A. 54:51A-1b, which applies on an appeal from the county tax board to the Tax Court. Although it might be argued that the requirements of due process are met in that situation because a taxpayer has already had a hearing before the county board, that was not the basis for the decisions in the two cases. In Woodlake Heights Homeowners Ass'n v. Middletown Tp., 7 N.J. Tax. 364 (App.Div.1984), the taxpayer argued that the tax payment requirement was unconstitutional because it prevented access to the courts and an opportunity for a hearing on the merits. The taxpayer questioned the viability of the "pay now, litigate later" principle and the lower court's reliance on New York, Susquehanna and W.R.R. Co. v. Vermeulen, supra, and General Trading Co. Inc. v. Director, Div. of Taxation, 83 N.J. 122, 416 A2d 37 (1980). The court responded that, "The principle that taxes must be paid when due as a condition to litigating liability for the amount alleged due is firmly embedded in our law." Woodlake Heights, supra , 7 N.J. Tax. at 366. The court continued that the "critical components of due process" were met--"A taxpayer has an opportunity to be heard before his tax liability is finalized." Id. at 367. Finally, the court rejected the taxpayer's reliance on Boddie v. Connecticut, supra, on the ground, equally applicable here, that plaintiff does not plead poverty and that in any event "marriage was involved in the Boddie case and marriage involves a fundamental interest of basic importance to society." Ibid.

In Schneider v. East Orange, supra, the Appellate Division reached the same result as in Woodlake Heights, affirming against a due process challenge the tax payment requirement that applies on an appeal from a county board to the Tax Court. The court pointed out that the "critical components of due process are adequate notice, opportunity for a fair hearing and availability of appropriate review." Schneider v. East Orange, supra, 196 N.J. Super., at 595, 483 A.2d 839. The court continued:

Plaintiffs' opportunity for appropriate review of the county board determination is not impaired by the added procedural limitation that taxes then due be paid before the jurisdiction of the Tax Court can be invoked. The interest of the municipality in receiving timely payment of taxes is clearly significant and outweighs any incidental burden imposed upon plaintiffs, and other taxpayers similarly situated, by this jurisdictional requirement. See Mathews v. Eldridge 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). It is well settled that a taxpayer may be required to pay the taxes then due as a condition to litigating the amount due. General Trading Co. v. Director, Div. of Taxation, 83 N.J. 122, 129 [416A.2d 37] (1980); N.Y., Susquehanna & W.R.R. v. Vermeulen, 44 N.J. 491, 501, 502 [210A.2d 214] (1965).

[ Id. at 595-96, 483 A.2d 839.]

In her Concurring opinion, Judge Dougherty maintains that the Appellate Division cases discussed above are distinguishable because they do not address the complete preclusion of review that ensues when a local property taxpayer fails to pay the taxes requisite to maintaining an appeal. Thus, for instance, the Railroad Tax Law at issue in New York, Susquehanna and W.R.R. Co. v. Vermeulen, supra, provided that the State could file a certificate of debt to secure payment of the taxes but went on to provide that such filing was "without prejudice to the taxpayer's right of appeal." See N.J.S.A. 54:29A-57.

Admittedly that is not the case under the local property tax. A failure to pay the taxes pursuant to N.J.S.A. 54:3-27 forecloses the right to judicial review of the assessment provided the issue of nonpayment is properly raised by the municipality. Powder Mill I Assocs. v. Hamilton Tp., 190 N.J. Super. 63, 68, 461 A.2d 1199 (App.Div.1983); Lecross Assocs. v. City Partners, supra, 168 N.J. Super. at 99, 401 A.2d 1099.

The question thus becomes whether the complete preclusion of review that may occur under N.J.S.A. 54:3-27 goes beyond the "pay now, litigate later" principle and violates the Due Process Clause.

Judging from the decisions of the Appellate Division discussed above, the answer is "no." It may be helpful to illuminate the reasoning of the decisions on this point.

First, in Echelon Glen Coop., supra, the Appellate Division indicated that a taxpayer's indigency did not prevent dismissal of an appeal for nonpayment of taxes. Second, as intimated in Woodlake Heights, supra, and Jefferson-Halsey Roads, supra , there is substantial authority to the effect that costs may be imposed as a precondition for maintaining a lawsuit. The cases uphold the conditions except in extreme circumstances not present here, e.g., indigency, involvement of a fundamental right like marriage, and inability to resolve the particular controversy except by means of the very judicial proceeding that the cost requirement forecloses. Thus, in United States v. Kras, 409 U.S. 434, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973), the Court sustained under the Due Process and Equal Protection Clauses a requirement in the Bankruptcy Act that, in order to obtain a discharge in bankruptcy, filing fees of approximately $50 had to be paid when the petition in bankruptcy was filed. The fees were sustained as applied to an indigent bankrupt against I claim that the requirement would effectively foreclose a discharge in bankruptcy for impoverished individuals. Distinguishing Boddie v. Connecticut, supra, the Court reasoned that a discharge in bankruptcy is not as important a right as marriage. Id. at 444-45, 93 S. Ct. at 637-38. As distinct from the state's control over the marriage relationship, a debtor, according to the majority, is always free to negotiate his debts with, his creditors. Id. at 445, 93 S. Ct. at 637. *fn2 The Court concluded by pointing out that in Boddie v. Connecticut, supra, "The Court obviously stopped short of an unlimited rule that an indigent at all times and in all cases has the right to relief without the payment of fees." Id. at 450, 93 S. Ct. at 640. See also Cohen v. Beneficial Indus. Loan Corp., supra, 337 U.S. at 551-53, 69 S. Ct. at 1228-29 (sustaining payment of security to cover opponent's legal fees as condition for maintaining shareholders' derivative suit); Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973) (applying Kras to uphold imposition of court filing fee as applied to indigent seeking judicial review of welfare agency's decision reducing his old age assistance' benefits); Little v. Streater, 452 U.S. 1, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981) (invalidating requirement that party pay for blood grouping tests as applied to indigent party in paternity action). *fn3 As the Court stated in Boddie v. Connecticut, supra :

Due Process does not, of course, require that the defendant in every civil case actually have a hearing on the merits. A State, can, for example, enter a default judgment against a defendant who, after adequate notice, fails to make a timely appearance, or who, without justifiable excuse, violates a procedural rule requiring the production of evidence necessary for orderly adjudication. What the Constitution does require is an "' opportunity... granted at a meaningful time and in a meaningful manner' for [a] hearing appropriate to the nature of the case.'"

[401 U.S. at 378, 91 S. Ct. at 786 (internal citations omitted).]

While the tax payment requirement may close the courthouse doors to a person unable or, as in this case, unwilling to pay, there is no violation of the Due Process Clause. Under the reasoning of Boddie v. Connecticut, supra, the pecuniary interest involved in a local property tax appeal lacks the constitutional status of marriage or some other fundamental right. A taxpayer plainly has recourse other than the "judicial machinery" to resolve a local property tax dispute. Alternative avenues include a conference with the assessor before the assessment list is finalized, N.J.S.A. 54:4-38, and the opportunity for settlement after a complaint is filed since under N.J.S.A. 54:3-27 the taxes need not be paid until the return date of the taxing district's motion to dismiss. Powder Mill I Assocs. v. Hamilton Tp., supra, 190 N.J. Super., at 66, 461 A.2d 1199. In the case of a revaluation when assessments are likely to change, N.J.A.C. 18:12-4.9 requires that the revaluation firm give each taxpayer an opportunity to review the proposed assessment prior to November 1 of the year preceding the year in which the revaluation is put into effect.

Under Boddie v. Connecticut a weighing of the relevant governmental and private interests comes down on the side of local government. The point was made by the Senate Revenue, Finance and Appropriations Committee in connection with the 1975 amendment to N.J.S.A. 54:3-27. (The 1975 amendment made payment of a portion of the tax a prerequisite to maintaining a tax appeal.) The committee stated:

From the tax district viewpoint, collections are required to meet expenses, and when substantial shortfalls occur, a financial hardship is created, or in anticipation of appeals reserves are high, imposing a greater tax burden on the other taxpayers in the district.

[ Lecross Assocs. v. City Partners, supra, 168 N.J. Super. at 98-99, 401 A.2d 1099. (quoting Senate Revenue Finance and Appropriations Committee Statement to Assembly Bill No. 1276).]

The reference in the committee statement to a municipality's "reserves" is significant. As pointed out in Route 88 Office Assoc. v. Brick Tp., 13 N.J. Tax. 14 (Tax 1992), N.J.S.A. 40A:4-40

requires a municipality to set aside a "reserve for uncollected taxes" in its budget and to cover the anticipated shortfall in the collection of the subsequent year's taxes. Since municipalities must include this reserve in their yearly budget, they must artificially inflate their fiscal needs and increase tax rates.

[ Route 88 Office Assoc., supra, 13 N.J. Tax. at 20-21.]

In the absence of timely payment of an appealing taxpayer, it is the other taxpayers in the taxing district who must make up the shortfall through an increase in the tax rate. In the extreme case of a taxpayer supplying a large portion of a municipality's ratables, a failure to pay taxes pending appeal may bankrupt the town. See, e.g., Curtiss-Wright Corp. v. Borough of Wood-Ridge, 2 N.J. Tax. 143, 145-46 (Tax 1981).

Plaintiff's seeming answer is that if a municipality wants its revenues, all it need do is sell a tax certificate on the property. Plaintiff overlooks the fact that a municipality may not sell a tax certificate until April 1 or October 1 (depending on the municipality's fiscal year) of the year following the tax year, N.J.S.A. 54-5-19, and the fact that there may be no buyers for a property where the taxes are in dispute. If no third party buys the tax certificate, the municipality obviously receives no tax monies and must await an additional six months in order to foreclose the equity of redemption. N.J.S.A. 54:5-104.34. In the interim, the municipality must collect the shortfall in revenues from its remaining taxpayers.

Weighed against a municipality's interest in an uninterrupted flow of tax revenues during the pendency of a tax appeal and the implicit interest of the other taxpayers in the district, is an individual taxpayer's interest in obtaining judicial review of the assessment. As a general rule, that interest is purely economic--a reduction in the amount of local property taxes. A denial of due process or of the state constitutional right to uniformity in taxation is implicated only if a taxpayer truly cannot pay one quarter of the taxes and municipal charges, perhaps due to indigency. But see Echelon Glen Coop., supra, 275 N.J. Super. at 445, 646 A.2d 498. Absent such a showing, dismissal of the complaint results from a volitional act on the taxpayer's part--a business decision not to pay the taxes.

In the event plaintiff had paid the required charges and pursued its appeal to a successful Conclusion, it would have been entitled to a refund of the excess taxes plus interest at 5%. N.J.S.A. 54:3-27.2. Thus the only "property" that is irretrievably lost by paying the taxes in advance is the difference between the rate of interest that a taxpayer could earn on the amount of the refund and the 5% statutory rate of interest on the same amount.

Analyzed under Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S. Ct. at 903, the result is the same. A weighing of the private and governmental interests again comes down on the side of local government. The third Mathews factor, the risk of an erroneous deprivation of property, ibid, is acceptable where tax revenues are concerned. While due process generally requires that

'an individual be given an opportunity for a hearing before he is deprived of any significant property interest,' ... it is well established that a state need not provide predeprivation process for the exaction of taxes.

[ McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 37, 110 S. Ct. 2238, 2250, 110 L. Ed. 2d 17 (1990).]

If a state can exact taxes prior to a judicial determination of their validity, it is plain that, where taxes are concerned, an erroneous, temporary deprivation of property is acceptable for due process purposes. The deprivation caused by the prehearing exaction of taxes lasts only until the appeal is resolved and the taxpayer, if successful, obtains a refund of the erroneously enacted tax, plus interest. N.J.S.A. 54:3-27.2.

Judge Dougherty's second ground for distinguishing the Appellate Division decisions discussed earlier in this opinion appears to be that the court failed to consider the tax payment requirement in conjunction with the Tax Sale Law. According to the argument, if the court had considered that statute, it would have realized that, unlike the typical "pay now, litigate later" statutory scheme, under the tax payment provision of N.J.S.A. 54:3-27 and the Tax Sale Law, once the taxes are not paid, there is no further opportunity to challenge the merits of the assessment. The argument continues that, if a hearing were provided under the Tax Sale Law during which the validity and/or the amount of the assessment could be challenged, the situation would be analogous to that in New York, Susquehanna, and W.R.R. Co. v. Vermeulen, supra. If the local property taxpayer chose not to pay and suffer the consequences, a hearing would nevertheless be provided under the Tax Sale Law.

The argument does not serve to distinguish the Appellate Division's decisions. That court's citation of Boddie v. Connecticut, supra, and United States v. Kras, supra, in Jefferson-Halsey Roads, and its citation of these eases plus Ortwein v. Schdwab, supra, in Woodlake Heights demonstrate that the court viewed the tax payment requirements of N.J.S.A. 54:3-27 and N.J.S.A. 54:51A-1b as "door closing" provisions analogous to the filing fee requirements in the cited cases. Thus, the court did not rely exclusively on the "pay now, litigate later principle of New York, Susquehanna & W.R.R. Co., supra, General Trading Co., supra, and McKesson, supra. Having sustained the tax payment requirements, despite their effect of denying access to judicial review, the court had no reason to consider whether the Tax Sale Law provided a hearing.

It cannot plausibly be maintained that the consequences under the Tax Sale Law, N.J.S.A. 54:5-1 to -129, and the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 to -104.75, are so extreme that the usual balance in favor of a taxing authority under the "pay now, litigate later" principle has to be rethought. In West Orange v. Block 107, 162 N.J. Super., 314, 392 A.2d 1213 (App.Div. 1978), the Appellate Division upheld the tax payment requirement in the context of the ultimate sanction--loss of the property in a tax foreclosure proceeding. The court sustained the trial Judge's refusal to stay the tax foreclosure action unless the taxpayer paid the amount of tax that was concededly due, *fn4 stating, "The collection of admittedly due taxes cannot ... be permitted to rest with the unilateral business judgment of a taxpayer." Id. at 317, 392 A.2d 1213. The Appellate Division plainly did not view the loss of a taxpayer's property as too severe a sanction for the failure to pay taxes.

Here, there is absolutely no evidence that plaintiff has or will lose its property through tax foreclosure. The court should not rule on facts that are not before it, much less decide constitutional issues "unless absolutely imperative in the Disposition of the litigation." Donadio v. Cunningham, 58 N.J. 309, 325-26, 277 A.2d 375 (1971); Hanover Ins. Co. v. Franke, 75 N.J. Super. 68, 74, 182 A.2d 164 (App.Div.), certif. denied, 38 N.J. 308, 184 A.2d 421 (1962); Elizabethtown Water Co. Consol. v. Bontempo, 67 N.J. Super. 8, 13, 169 A.2d 719 (App.Div. 1961).

As there is no evidence that plaintiff will lose its property through tax foreclosure, it cannot successfully maintain that the tax payment requirement, as applied in its case, violates the Due Process Clause. This leaves only the possibility of a facial challenge based on a possible loss of the property through tax foreclosure. Merely to state the argument reveals its logical flaw. The "facial invalidity" of the tax payment requirement would depend upon an event that may or may not occur. A statute cannot be facially unconstitutional if it operates constitutionally in some instances.

In the last analysis, Judge Dougherty confuses the opportunity for a hearing on the merits of a tax assessment with an actual hearing. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, supra, 424 U.S. at 333, 96 S. Ct. at 901 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)). This does not mean that "every civil litigant [is entitled] to a hearing on the merits in every case." Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S. Ct. 1148, 1158, 71 L. Ed. 2d 265 (1982). The Due Process Clause does not prohibit a state from conditioning the opportunity for a hearing based on "reasonable procedural requirements" such as statutes of limitation, "or in an appropriate case, filing fees." Ibid. See also Boddie v. Connecticut, supra, 401 U.S. at 378, 91 S. Ct. at 786. Plaintiff has had an opportunity for a hearing and has chosen not to take it by refusing to pay the requisite taxes.

In a case such as this one where plaintiff has the wherewithal topay the taxes, the tax payment requirement operates no differently than a typical "financial sanction" imposed to "encourage" taxpayers to pay their taxes prior to a judicial determination of the validity of the tax. McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, supra, 496 U.S. at 37, 110 S. Ct. at 2250. Whether a different result might obtain in the case of a truly indigent taxpayer must abide those facts. See Donadio v. Cunningham, supra, 58 N.J. at 325-26, 277 A.2d 375.

IV.

Plaintiff maintains that, in order to avoid a constitutional violation, N.J.S.A. 54:3-27 must be interpreted to allow a reasonableness hearing of the kind permitted under N.J.S.A. 54:4-34 as a result of the decision in Ocean Pines, Ltd, v. Pt. Pleasant Bor., supra.

As the court has concluded that the tax payment requirement is constitutional despite its effect of denying access to judicial review of the assessment, there is no need to deal with plaintiff's final argument. But if plaintiff's predicate were correct, the answer would not be a reasonableness hearing.

N.J.S.A. 54:4-34 requires the owner of income producing property to supply the assessor with a statement of the property's income. If the information is not timely supplied, the statute (1) requires the assessor to "value [the] property at such amount as he may, from any information in his possession or available to him reasonably determine to be the full and fair value thereof' and (2) forecloses a taxpayer from appealing the assessment. (Emphasis added).

In Ocean Pines, Ltd. v. Pt. Pleasant Bor., 213 N.J. Super. 351, 517 A.2d 472 (App.Div.1986), aff'd, 112 N.J. 1, 547 A.2d 691 (1988), the Appellate Division held that N.J.S.A. 54:4-34 did not violate a taxpayer's due process rights because the statute contained "a relaxation provision," requiring that the assessor "reasonably determine" the value of the property based on information in his possession or available to him. Id. at 354-55, 517 A.2d 472. This provision ensured that the assessment would be in compliance with the New Jersey constitutional requirement of uniform assessments. In affirming the availability of a reasonableness hearing, our Supreme Court stated:

Because we agree with the court below that such an appeal is provided for in the statute itself, we do not reach the question of whether such a hearing may be constitutionally required, see, e.g., In re Baby M, 109 N.J. 396, 450-51, 537 A.2d 1227 (1988), and we express no view in respect of the Appellate Division's constitutional analysis.

[ Ocean Pines, Ltd. v. Pt. Pleasant Bor.,, 112 N.J. 1, 11, 547 A.2d 691 (1988), (emphasis added).]

Thus the basis for our Supreme Court's finding that the taxpayer was entitled to a reasonableness hearing under N.J.S.A. 54:4-34 was the statutory language contained in that section. The Supreme Court did not adopt the idea that a reasonableness hearing was required by the New Jersey Constitution.

N.J.S.A. 54:3-27 contains no requirement that an assessment be reasonable or that an assessor reasonably determine an assessment based upon information in his possession or available to him. In the complete absence of any statutory reasonableness standard, there is no basis for the judiciary to create the right to a reasonableness hearing under N.J.S.A. 54:3-27. If a court cancreate a reasonableness hearing under N.J.S.A. 54:3-27, it can just as easily create one under N.J.S.A. 54:3-21 for taxpayers who fail to file a tax appeal by April 1, or for taxpayers who fail to appeal an adverse determination of a county board of taxation within 45 days pursuant to N.J.S.A. 54:51A-9a, or for taxpayers who fail to pay the requisite taxes under N.J.S.A. 54:51A-1b on an appeal from a county board to the Tax Court, or for taxpayers whose complaints are subject to dismissal under N.J.S.A. 54:51A-1c for failure to prosecute their appeal at the county board.

To the extent that a reasonableness hearing under N.J.S.A. 54:4-34 may be constitutionally required to ensure compliance with the Uniformity Clause, any such imperative derives from the timing of the assessor's request for income and the preclusion of an appeal for failure to respond. The purpose of N.J.S.A. 54:4-34 is to aid the assessor in formulating an assessment. SKG Realty Corp. v. Wall Tp., 8 N.J. Tax., 209, 211 (App.Div.1985); Delran Holding Corp. v. Delran Tp.. 8 N.J. Tax. 80, 83 (Tax 1985). Thus, chapter 91 income requests must be sent before an assessment is finalized, in fact at least 45 days before that date because the statute allows a taxpayer 45 days to respond. Westmark Partners v. West Deptford Tp., 12 N.J. Tax. 591, 597 (Tax 1992). If a taxpayer fails to respond, the assessor knows that the statute precludes an appeal of the assessment. N.J.S.A. 54:4-34. Without the prophylaxis of a reasonableness hearing, there would be no check on a patently arbitrary assessment because the assessor would know when the assessment was made that no appeal was possible. The situation differs with respect to the tax payment requirement of N.J.S.A. 54:3-27. The nonpayment issue arises only when a taxing district raises it at the county tax board or on a direct appeal to the Tax Court. Lecross Assocs. v. City Partners, supra, 168 N.J. Super., at 99-100, 401 A.2d 1099. This is long after the assessor has fixed the assessment. There is thus no need to create a reasonableness hearing under N.J.S.A. 54:3-27 as a check on the assessor and to guarantee a taxpayer's right to uniformity in taxation.

V.

In summary, the Appellate Division has resolved the issues of statutory construction and constitutionality presented in this case. Failure to comply with the tax payment requirement of N.J.S.A. 54:3-27 justifies dismissal of the complaint. "Failure to exploit [the] opportunity [for a hearing] does not project a due process denial" regardless of the remedies contained in the Tax Sale Law. J.L. Muscarelle, Inc. v. Saddlebrook Tp., supra, -- N.J. Super. -- (or -- N.J. Tax. --) (App.Div.1994) (slip op. at 6).

CRABTREE, RIMM, SMALL, and AXELRAD, JJ., concuring this opinion.

LASSER, J.T.C., Concurring.

I concur with the opinion of Judge Pizzuto for the Court. I add that, although it is not the case here, in the event that the defense to a motion to dismiss for non-payment of property tax establishes that the property may be substantially overassessed so as to be virtually confiscatory, it is my opinion that due process may require a hearing on the validity of the assessment provided that tax is paid based on an assessed value deemed reasonable by the hearer of the motion.

DOUGHERTY, J.T.C. Concurring.

I am compelled to concur with the result in this matter as it appears to be mandated by the Appellate Division's recent decision in the consolidated Muscarelle matters discussed by Judge Pizzuto in his opinion for the court. I write this concurrence because I believe that the result is an unconstitutional denial of procedural due process. The pivotal issue in this case is whether the dismissal of taxpayer's complaint for failure to pay taxes will, when examined in light of the ex parte remedies set out in the Tax Sale Law (N.J.S.A. 54:5-1 to 129), result in a denial of its due process rights. In Schroeder Oil Co. v. Iowa State Department of Revenue and Finance, 458 N.W. 2d 602 (Iowa 1990), the Iowa Supreme Court decided this issue. There the Court held:

We reject Schroeder's due process challenge to Iowa's tax revenue scheme insofar as the challenge addressed to the absence of a hearing prior to deprivation. That absence is more than justified on the basis of practical necessity. A predeprivation hearing requirement would result in mass chaos, would paralyze the collection of tax revenue, and is not required under the authorities cited.

III. We do however find merit in Schroeder's due process challenge to the statute as applied to it because of the failure to allow a postdeprivation hearing. Under the procedure invoked, Schroeder, because of its financial plight, cannot contest the assessment at any stage. As noted above, we think the collection of taxes cannot be suspended to provide a hearing for each reluctant taxpayer. But, once government has proceeded with the assessment and has taken whatever appropriate steps it chooses for collection of the tax, due process entitles the protesting taxpayer to request and obtain a hearing. See T.M. Cobb Co. v. County of Los Angeles, 16 Cal.3d 606, 547 P.2d 431, 128 Cal. App. 3d 655 (1976) (assessee not denied due process if postdeprivation hearing is available). Such a right cannot be confined to affluent taxpayers or to those who can raise bonds in the amount in dispute. Postdeprivation bonds ordinarily should not exceed the estimated costs in the contested case.

[ Id. at 604.]

N.J.S.A. 54:3-27 cannot be read in a vacuum. When a taxpayer fails to pay taxes as assessed within the time required by N.J.S.A. 54:4-66, the Tax Sale Law requires that the municipality realize the taxes by selling its tax lien. That lien attaches by operation of law, retroactively on the first day of January of each tax year. Our law in New Jersey (See New York, Susquehanna and W.R.R. Co. v. Vermeulen, 44 N.J. 491, 210 A.2d 214 (1965) (" Susquehanna ")) would permit the "taking" by sale of a tax certificate with no opportunity for prior judicial review as to the validity of the underlying assessment if (and only if) a post-deprivation opportunity were provided. The Susquehanna analysis is in accord with the due process principles described in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S. Ct. 2238, 110 L. Ed. 2d 17 (1990) (" McKesson ") and its progeny. See Henry Harper v. Virginia Department of Taxation, U.S. , 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993):

Under the Due Process Clause, U.S. Const., Amdt. 14, s. 1, "a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination." If Virginia "offers a meaningful opportunity for taxpayers to withhold contested tax assessments and to challenge their validity in a predeprivation hearing," the "availability of a predeprivation hearing constitutes a procedural safeguard . . . sufficient by itself to satisfy the Due Process Clause." On the other hand, if no such predeprivation remedy exists, the "Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation." In providing such relief, a State may either award full refunds to those burdened by an unlawful tax or issue some other order that "create[s] in hindsight a nondiscriminatory scheme."

[ Id. at , 113 S. Ct. at 2519-20, 125 L. Ed. 2d at 88-89. (Citations omitted)]

It is consistent with Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). It includes the same analysis applied by the Iowa Supreme Court. It answers, however, only part of the issue in this case--that is, whether post-deprivation relief satisfies the requirements of due process.

No constitutionally "meaningful" opportunity for post-deprivation review is provided in our Tax Sale Law. For this reason, I conclude that judicial review must be permitted prior to the mandatory sale of a tax certificate. This Conclusion, I respectfully submit, is consistent with both the clear language of N.J.S.A. 54:3-27, and the manifest purpose of the Legislature in enacting the law as it presently exists. N.J.S.A 54:3-27 provides in pertinent part:

The payment of part or all of the taxes upon any property, due for the year for which an appeal from an assessment upon such property has been or shall hereafter be taken, or of taxes for subsequent years, shall in nowise prejudice the status of the appeal or the rights of the appellant to prosecute such appeal, before the county board of taxation, tax court, or in any court to which the judgment arising out of such appeal shall be taken, except as may be provided for in R.S. 54:2-39.

[ N.J.S.A. 54:3-27 (emphasis added).]

Senate Revenue, Finance and Appropriations Committee Statement to Assembly Bill, No. 2147, (July 11, 1977) amending N.J.S.A. 54:3-27, reflects the intent to require full payment of taxes for any year under review:

The purpose of this bill is to require the payment of the first three quarters of property tax by a taxpayer who files an appeal with the county board of taxation, to require full payment of the current year property taxes upon appeal to the Division of Tax Appeals and to provide for the payment of interest at a rate of 5% instead of 8% per annum on any refund of excess taxes paid as indicated in the final judgment. . . .

This bill represents a turnaround in State policy regarding payment of property taxes where an appeal is pending. The presumption in law, prior to P.L.1975, c. 361, was that an appellant was responsible for paying only that amount of tax which he felt was reasonable as reflected in his appeal. With P.L.1975, c. 361, a requirement that 90% of current taxes be paid was put in law. This gave rise to the disparity of amount of taxes due related to the point in time that the appeal is filed. The presumption in law in this bill is that a taxpayer is responsible for the taxes assessed against him and the filing of an appeal in no way reduces or forgives that liability.

[Senate Revenue, Finance and Appropriations Comm. Statement to Assembly Bill No. 2147, (July 11, 1977). (emphasis added).]

N.J.S.A. 54:3-27 clearly fixes a taxpayer's obligation and liability to pay the amount of tax as assessed, notwithstanding the pendency of its appeal of the assessment. The municipality's sale of its lien for a delinquent taxpayer's taxes to third parties and the subsequent right to foreclose the lien, required a liquidated sum--that is, a fixed and determinable amount. Without this fixing of liability what would the municipality sell and what would the certificate holder later foreclose? In this respect N.J.S.A. 54:3-27, in conjunction with applicable provisions of the Tax Sale Law, serve the same function as an acceleration clause in a standard form mortgage. Together they set the stage for the collection remedies.

I am troubled by the Appellate Division's Conclusion that the Legislature intended N.J.S.A. 54:3-27's ". . . shall pay . . . no less than the total of all taxes and municipal charges . . ." to mean something that it could have clearly said but did not-- i.e. that failure to pay requires dismissal--on the strength of dicta in Lecross Assoc. v. City Partners, 168 N.J. Super. 96, 401 A.2d 1099 (App.Div.), certif. denied, 81 N.J. 294, 405 A.2d 837 (1979). "The narrow question before [the Appellate Division in Lecross Assoc. was] . . . whether the judgment of the Bergen County Board of Taxation [was] void for lack of jurisdiction because of plaintiff's failure to pay the borough's tax collector 90% of the taxes originally assessed against it, as [then] required by N.J.S.A. 54:3-27." Lecross Assoc., supra, 168 N.J. Super. 96, 97, 401 A.2d 1099. The narrow holding of Lecross Assoc., that ". . . nowhere do we discern a purpose to condition the power of the reviewing body to adjudicate upon the making of payment by the taxpayer . . .", Id. at 99, 401 A.2d 1099, does not resolve the issue raised in the within matter.

N.J.S.A. 54:3-21, which applies to "April 1st appeals" (that is to direct appeals to the Tax Court as well as to appeals to the county boards of taxation), directs that "all appeals to the tax court hereunder shall be in accordance with the provisions of the State Tax Uniform Procedure Law. . . ." N.J.S.A. 54:51A-1, which forms a part of the Procedure Law and was formerly designated N.J.S.A. 54:2-39, deals with only three situations where "there shall be no review". A failure to pay taxes is not one of those situations.

The post-deprivation hearing afforded a taxpayer who "purchases" that right by affirmatively paying the municipality's assessment is not sufficient to satisfy due process requirements vis a vis the taking of the delinquent taxpayer's property under the provisions of the Tax Sale Law. It cannot be overlooked that the Tax Sale Law provides no refund remedy for the delinquent taxpayer. Under McKesson, (and, it would appear, under the Appellate Division's decision in the consolidated Muscarelle matters--"the United States Supreme Court has . . . ruled that a state may satisfy due process by requiring payment prior to a hearing so long as a refund or other monetary remedy process is afforded." Muscarelle, supra, N.J. Super. at (App.Div. 1994)) this deficiency would render the statute unconstitutional. The power of government to take under the Tax Sale Law can only be sanctioned by the Constitution if the taxpayer is provided access to the court either before or after the taking. While protection of the municipal fisc might be a sufficient interest to support the provision of only post-deprivation review, that interest cannot support the complete denial of review1a which occurs under the present reading of the statute. While my colleagues on the Tax Court express concern that taxpayers might attempt to gain an advantage in their litigation by withholding (or threatening to withhold) quarterly tax payments until resolution of their assessment appeals, the record is devoid of any evidence to support this fear. In addition, I have not discovered a single reported case where this issue has been raised.

A tax delinquency attracts interest at a rate as high as eighteen percent per annum and potential penalties at six percent per annum once the delinquency exceeds $10,000. As well, a tax delinquency has a negative impact on taxpayer's credit status and will almost universally constitute an event of default under any mortgage as may be outstanding on the taxpayer's property. The failure to pay real property taxes on time not only seriously impedes a taxpayer's ability to borrow in the commercial markets but also places the defaulting taxpayer at risk of acceleration of its entire mortgage debt and foreclosure by its mortgagee. Adding to these factors, the superiority accorded the municipality's lien for unpaid taxes can make it impossible for the taxpayer to extract itself from the whirlpool created by the initial delinquency. While the taxpayer who is willing to walk away from its property might make the municipality its lender under these circumstances, it is as reasonable to assume that the "borrower" will be an individual who, as a result of the loss of a job, the death of a spouse or the sudden vacancy of its leased property, simply cannot pay.

Due process must safeguard against the government's taking more than its due as might well occur if, as the taxpayer here asserted in its complaint, the assessment is discriminatory. See Carpenter v. Shaw, 280 U.S. 363, 369, 50 S. Ct. 121, 123, 74 L. Ed. 478 (1930) ("a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment."). If the taxpayer in this matter pays the delinquent taxes to avoid a sale of a certificate, or, a certificate having been sold, exercises its equity of redemption and thereby saves title, do we not, without the benefit of judicial review, leave unanswered the issue of discrimination in assessment? Assuming that the subject property is assessed at a discriminatory amount, has not the municipality a duty to refund the amount wrongfully taken? Can it be doubted that a taking occurs as much by a wrongful intrusion upon the equity of redemption (i.e. as occurs where the taxpayer must overpay to redeem title) as by the initial overpayment of taxes made on a timely basis to avoid dismissal?

Susquehanna Mandates Review

N.Y. Susquehanna & W.R.R. v. Vermeulen, supra, is the seminal New Jersey case for the "pay now, litigate later" principle. The Court in Susquehanna considered the remedies provided with respect to delinquencies in payment of taxes assessed under the Railroad Tax Law of 1948, N.J.S.A. 54:29A-1 to -129. During the pendency of an administrative appeal of the assessment of certain real property owned by Susquehanna, the State Comptroller issued to the Clerk of the Superior Court a certificate for the amount of the taxpayer's delinquent taxes. The Clerk entered the amount so certified among docketed judgments and the taxpayer appealed that action.

The statute in Susquehanna provided:

As an additional or alternative remedy, the State Comptroller may issue a certificate to the Clerk of the Superior Court that a taxpayer is indebted under this or any former act for the taxation of railroads in such amount as shall be named in such certificate, and thereupon the clerk to whom such certificate shall have been issued shall immediately enter upon his record of docketed judgments the name of such taxpayer, and of the State, the amount of the debt so certified, a short name of the tax, and the date of making such entries. The making of the entries shall have the same force and effect as the entry of a docketed judgment in the office of such clerk, and the State Comptroller shall have all of the remedies and may take all of the proceedings for the collection thereof which may be had or taken upon the recovery of a judgment in a civil action, but without prejudice to the taxpayer's right of appeal.

[ N.J.S.A. 54:29A-57, quoted in Susquehanna, supra, 44 N.J. at 494, 210 A.2d 214 (emphasis added).]

The Susquehanna taxpayer asserted that the " ex parte issuance of the certificate by the State Comptroller and the ex parte entry made among docketed judgments . . ." denied it due process of law. Susquehanna, supra, 44 N.J. at 500-01, 210 A.2d 214. Our Supreme Court held that such remedy did not result in a denial of due process because the taxpayer could thereafter continue to pursue its administrative and judicial remedies; that is, the taxpayer was afforded "post-deprivation" review. The Court reasoned:

The grievance claimed is the failure to provide for notice and hearing before judgment. But N.J.S.A. 54:29A-57 expressly provides that the entry of the tax indebtedness [ i.e. as a result of taxpayer's failure to pay ] among docketed judgments shall be 'without prejudice to the taxpayer's right of appeal'. Thus the taxpayer may continue to pursue its administrative and judicial remedies under N.J.S.A. 54:29A-31 and 36. There being that opportunity for hearing, the mere entry of a 'judgment' does not deny due process of law. 'Due process requires that there be an opportunity to present every available defense; but it need not be before the entry of judgment' American Surety Co. v. Baldwin, 287 U.S. 156, 53 S. Ct. 98, 77 L. Ed. 231 (1932).

Of course the entry of judgment is designed to effect collections and to remit the taxpayer, if successful, to a refund by way of a credit upon later taxes assessed as provided in N.J.S.A. 54:29A-49, unless the taxpayer obtains a stay [ i.e. of the enforcement remedies] upon paying the amount determined by the Superior Court not to be in substantial controversy pursuant to N.J.S.A. 54:29A-38. Still, [ i.e. in the event of the grant of such stay] due process does not forbid compulsion to pay taxes now [ i.e. by virtue of a cash payment by taxpayer to obtain the stay, or the statutory ex parte collection remedy] and litigate later. Referring to a federal statute which barred a suit to restrain assessment or collection of any tax, the United States Supreme Court said in Taylor v. Secor (State Railroad Tax Cases), 92 U.S. 575, 23 L. Ed. 663, 673 (1875):

". . . It is a wise policy. It is founded in the simple philosophy derived from experience of ages, that the payment of taxes has to be enforced by summary and stringent means against a reluctant and often adverse sentiment: and to do this successfully, other instrumentalities and other modes of procedure are necessary, than those which belong to our courts of Justice."

[ Id. at 501, 210 A.2d 214 (emphasis added).]

It is precisely because of the ex parte nature of the Tax Sale Law's remedies and the lack of any provisions in the Law for a hearing that dismissal of delinquent taxpayer's complaint results in a denial of due process.2a I cannot read Susquehanna to permit any other result. The "pay" in the "pay now, litigate later" principle discussed in that case was the payment accomplished by the collection remedy. Susquehanna wasn't concerned with the taxpayer's failure to pay the tax as assessed; it didn't hold that such failure could result in dismissal. Susquehanna is a remedies case--it resolves only part of our issue when it says that providing only post deprivation review satisfies due process. Susquehanna was concerned with whether the State could "take" before a court determined the validity of the very tax taken. Susquehanna permitted the taking in advance of review because a refund remedy was provided by law. Because the Tax Sale Law contains no such remedy, the issue simply and practically becomes "if not now, when?"

Procedural Due Process Analysis

In McKesson, supra, 496 U.S. at 36, 110 S. Ct. at 2250, 110 L. Ed. 2d at 35-36, the Court reiterated the applicability of due process safeguards to procedures for the assessment and collection of a tax as follows: "because exaction of a tax constitutes a deprivation of property, the State must provide procedural safeguards against unlawful exactions in order to satisfy the commands of the Due Process Clause * * *." (footnote omitted) (emphasis added). Exaction occurs not only when payment of tax is made by the taxpayer under protest, that is where taxpayer pays and proceeds to appeal, but also where a delinquent tax is collected by ex parte remedies such as the sale of a tax certificate.3a McKesson does not resolve our issue because that case involved the quality of the refund remedy provided by the State of Florida, not its very availability. McKesson would clearly have held that the lack of any refund remedy (i.e. the opportunity for post-deprivation review) constitutes a denial of procedural due process. See also Bob Jones University v. Simon, 416 U.S. 725, 746, 94 S. Ct. 2038, 2050, 40 L. Ed. 2d 496, 514 (1974) ("this is not a case where an aggrieved party has no access at all to judicial review. Were that true, our Conclusion might well be different."); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 595-97, 51 S. Ct. 608, 611, 75 L. Ed. 1289 (1931) ("where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained. . . . Where only property rights are involved, mere postponement of judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate.") (citations omitted).

Taxpayer's issue, primarily one of procedural due process, is resolved by applying the three factor balancing test fashioned by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). This test requires consideration of the following factors:

[ Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S. Ct. at 903; accord State v. Howard, 110 N.J. 113, 129, 539 A.2d 1203 (1988); see also Blackhawk Mining Co., Inc. v. Andrus, 711 F.2d 753, 757 (6th Cir.1983); Ocean Pines, Ltd. v. Borough of Pt. Pleasant, 112 N.J. 1, 9, 547 A.2d 691 (1988).]

Applying this test to the within matter, I would find the first and third factors as follows:

(1) Private Interest. The taxpayer's private interest is two-fold. First, as in Ocean Pines, supra, it is the tax assessment and the actual tax bills. The dismissal of the within complaint finalizes the assessment and the taxpayer's 1994 tax liability. If taxpayer were to hereafter pay the delinquencies, it must pay the full amount of tax as billed, together with all accrued interest and penalties thereon, in order to avoid the sale of a tax certificate. If the taxpayer does not pay the delinquencies, a second interest arises, which is the equity of redemption. *fn5

The sale of a certificate has the following effects: (a) the taxpayer's right to redeem the certificate is conditioned upon payment in full of the asserted liability together with accrued interest and penalties, costs, and (potentially) subsequent municipal liens N.J.S.A. 54:5-58; and (b) if taxpayer should fail to redeem, the certificate purchaser will have the right, within the time periods set out in N.J.S.A. 54:5-86 (which extend for a 20 year period), to acquire fee title to the subject property by foreclosing the equity of redemption of all outstanding interests, including taxpayer's. *fn6

(3) The Interest of the Municipality. The municipality's interest in compliance with quarterly tax payments is obvious and substantial. In Township of Montville v. Block 69, Lot 10, 74 N.J. 1, 376 A.2d 909 (1977) the Court refers to real property taxes as the "lifeblood of municipal government . . . [and asserts that] their ready collection and an effective and inexpensive means for enforcement of the public lien therefor are peculiarly vital to the public welfare. . . ." Id. at 23, 376 A.2d 909. The interest of government in securing the steady flow of tax revenues has traditionally served as justification for providing review of a tax's validity only post deprivation, as in Susquehanna. However, the weight accorded this interest cannot of course support an intrusion upon taxpayer's due process rights. See Bull v. United States, 295 U.S. 247, 55 S. Ct. 695, 79 L. Ed. 1421 (1935); Henry Harper v. Virginia Department of Taxation, supra; Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). *fn7

(2) Risk of erroneous deprivation of Taxpayer's Private Interests. Taxpayer argued here that dismissal of its complaint would violate procedural due process because it would permit the taking of property under the Tax Sale Law without any opportunity for administrative or judicial review. Such taking, it said, being measured by the quantum of unpaid taxes (together with accrued interest and penalties) requires some review of the assessment from which the tax liability is derived, both to insure compliance with due process, and with the mandate of N.J. Const. art. VIII, § 1, P 1(a), which provides:

Property shall be assessed for taxation under general laws and by uniform rules. All real property assessed and taxed locally or by the State for allotment and payment to taxing districts shall be assessed according to the same standard of value, except as otherwise permitted herein, and such real property shall be taxed at the general rate of the taxing district in which the property is situated; for the use of such district.

Citing F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 428, 495 A.2d 1313 (1985), taxpayer asserted that a claim of discrimination in assessment (as set out in its complaint) implicates equal protection rights. I agree.

Three procedures were available to taxpayer for review of the underlying assessment. First: Taxpayer's initial avenues for review were by (a) appeal to the county board of taxation or (b) direct appeal to this court N.J.S.A. 54:3-21. *fn8 There is no question that the provisions of N.J.S.A. 54:3-27 have been interpreted to apply with respect to both appeals. The remedy of dismissal fashioned by the courts under N.J.S.A. 54:3-27 would have been equally applicable had taxpayer brought its appeal to the county board instead of directly to this court.

Had taxpayer taken its initial appeal to the county board and been subject to dismissal there, it could, pursuant to N.J.S.A. 54:51A-1, have then appealed that determination to the Tax Court. However, N.J.S.A. 54:51A-1 has been held to require payment of all taxes due and owing as of the date a complaint is filed with the tax court, as a jurisdictional prerequisite. Powder Mill I, supra; Woodlake Heights Homeowners Ass'n v. Middletown Tp., 7 N.J. Tax. 364 (App.Div.1984).

Second: It appears that taxpayer might have an opportunity for review of the validity of the assessment upon the institution of a foreclosure action, where denial of review of the underlying assessment has been held to be an assertable defense. See Township of Montville, supra; The Town of West Orange v. Block 107, 162 N.J. Super. 314, 316, 392 A.2d 1213 (App.Div.1978); R. 4:64-7(a).

Third: And finally, as the municipality argued, taxpayer might have the opportunity to pursue its appeal if a tax certificate for tax year 1994 had been sold prior to the return date of this motion. Echelon Glen, supra. In this regard it is noted that a certificate sale could not occur until after April 1, 1995.

The Supreme Court in McKesson, supra, determined the State of Florida's constitutional duty to provide relief for a taxpayer's payment of an unlawful tax. There the Court said:

The State may choose to provide a form of "predeprivation process", for example, by authorizing taxpayers to bring suit to enjoin imposition of a tax prior to its payment, or by allowing taxpayers to withhold payment and then interpose their objections as defenses in a tax enforcement proceeding initiated by the State. *fn9 However, whereas "we have described the 'root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest'", Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1498 [84 L. Ed. 2d 494] (1985), it is well established that a State need not provide a predeprivation process for exaction of taxes. Allowing taxpayers to litigate their tax liabilities prior to payment might threaten a government's financial security, both by creating unpredictable interim revenue shortfalls against which the State cannot easily prepare, and by making the ultimate collection of validly imposed taxes more difficult. To protect government's exceedingly strong interest in financial stability in this context, we have long held that a State may employ various financial sanctions and summary remedies such as distress sales in order to encourage taxpayers to make timely payments prior to resolution of any dispute over the validity of the tax assessment.

[ McKesson, supra, 496 U.S. at 36-37, 110 S. Ct. at 2250-2251, 110 L. Ed. 2d at 36 (emphasis added)]

The statutory scheme in McKesson, supra, like that under consideration in this case, did not provide for a "predeprivation" determination of the tax assessment's validity. The McKesson taxpayer was, as our taxpayer is, required to "pay" the tax as assessed, whether by actual payment under protest, or by virtue of being subject to ex parte summary collection remedies. *fn10 In McKesson, however, as in Susquehanna, the statutory scheme provided in either event for judicial review by means of a "post deprivation" refund action. The McKesson Court went on to examine the meaningfulness of the "post deprivation" remedy provided by the State of Florida and said "to satisfy the requirements of the Due Process Clause, therefore, in this refund action the State must provide the taxpayers with, not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation, (footnote omitted) but also a "clear and certain remedy", [ Atchison v. ] O'Connor, 223 U.S., [280] at 285, 32 S. Ct. [216] at 217 [56 L. Ed. 436 (1912)], for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one." McKesson, supra, 496 U.S. at 39, 110 S. Ct. at 2251, 110 L. Ed. 2d at 37 (emphasis added). That the denial of any opportunity for judicial review in McKesson would have violated the requirements of procedural due process cannot be doubted. *fn11 See Charles J. Reich v. Marcus E. Collins, Revenue Commissioner of Georgia, et al., U.S. , 115 S. Ct. 547, 130 L. Ed. 2d 454 (1994). Nor can it be doubted that the same requirements apply whether the tax is paid under protest or extracted by an ex parte procedure. *fn12

Each of the Second and Third procedures for review of taxpayer's 1994 assessments clearly fail to meet due process requirements. Mathews v. Eldridge, supra, 424 U.S. at 333, 96 S. Ct. at 902, 47 L. Ed. 2d at 32 ("The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'"). Due process cannot turn on happenstance and conjecture.

The marginal viability of a hearing as part of the tax certificate foreclosure action is clear in light of the following provisions of the Tax Sale Law:

The certificate of sale shall be presumptive evidence in all courts in all proceedings by and against the purchaser, his representatives, heirs, and assigns, of the truth of the statements therein, of the title of the purchaser to the land therein described, and the regularity and validity of all proceedings had in reference to the sale. After two years from the record of the certificate of sale, no evidence shall be admitted in any court to rebut the presumption, unless the holder thereof shall have procured it by fraud, or had previous knowledge that it was fraudulently made or procured.

[ N.J.S.A. 54:5-52.]

If the assessment itself is valid and the tax, assessment or other municipal charge, or any part thereof, is justly due, no sale shall be set aside, except on the condition that the amount due shall be paid to the municipality for the use of the holder of the certificate of sale by the person applying to set it aside. . . .

[ N.J.S.A. 54:5-43.]

See also South Carolina v. Regan, 465 U.S. 367, 104 S. Ct. 1107, 79 L. Ed. 2d 372 (1984). Beyond these procedural impediments is the 20 year limitations period on the foreclosure action. Can taxpayer's due process entitlements be satisfied by a foreclosure hearing occurring 5, 10 or 15 years after the tax year in issue? I think not.

The meaninglessness of the right the taxpayer herein might have had under Echelon Glen, (supra) , to proceed had a tax certificate for the 1994 delinquency been sold prior to the return date of this motion (October 20, 1994) is obvious when one considers that a certificate could not under the law be sold until sometime after April 1, 1995. Additionally, it is unclear what effect, if any, the recent amendment to N.J.S.A. 54:4-67 will have upon the future application of the holding in Echelon Glen, supra. L. 1994, c. 32, § 4 (May 12, 1994), added the following paragraph to N.J.S.A. 54:4-67:

"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 therein 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. 54:5-46. The governing body may also fix a penalty to be charged to a taxpayer with a delinquency in excess of $10,000 who fails to pay that delinquency prior to the end of the fiscal year. If such taxes are fully paid and satisfied by the holder of an outstanding tax sale certificate, the holder shall be entitled to receive the amount of the penalty as part of the amount required to redeem such certificate of sale. The penalty so fixed shall not exceed 6% of the amount of the delinquency.

As to the First procedure, I would hold that dismissal of taxpayer's complaints, where no further opportunity for review is provided under the Tax Sale Law, would deny taxpayer due process. The complete preclusion of review serves primarily to relieve the municipality of defending the validity of its assessment and adds little to the collection of the delinquent taxes. Without an opportunity for review, the risk to taxpayer of an erroneous deprivation of its private interests is compelling. This risk is more particularly compelling because the Tax Sale Law's collection remedies are intended to bring third parties into the matter--complete with their own due process rights.

An expedited hearing before the taking affords taxpayer due process "If Not Now, When?"

I do not interpret N.J.S.A. 54:3-27 as precluding a similar expedited review procedure as found in Ocean Pines, supra, and accordingly conclude that, because that review is available, the assessment and collection scheme satisfies due process requirements.

Among the issues on appeal in Ocean Pines, supra, was whether the dismissal of a complaint for failure to respond to the municipality's request for financial data, under N.J.S.A. 54:4-34, violated taxpayer's procedural due process rights. *fn13 In reversing the trial court's blanket dismissal, the Appellate Division said:

Had the assessor valued plaintiff's property at 10 times its purchase price, there is no question that the assessor could be said to have violated the separately-stated standard of the statute itself, and unreasonably determined the full and fair value of the property. Violations of the statute's standard of reasonableness must be judicially reviewable. Otherwise, there would be no check upon the assessor's compliance with the express standard of the statute. . . . Were the rule otherwise, the statute, contrary to its terms would authorize assessments in violation of the N.J. Const. art. VIII, § 1, par. 1(a) and N.J.S.A. 54:4-23.

[ Ocean Pines v. Borough of Pt. Pleasant, 213 N.J. Super. 351, 355, 517 A.2d 472 (App.Div.1986), aff'd, 112 N.J. 1. 547 A.2d 691 (1988).]

In affirming the Appellate Division's Conclusion that the statute was not violative of procedural due process the Supreme Court said:

[Assuming that the taxpayer complies with the request for information, an appeal may be taken to the county board, with further appeals to the Tax Court and the Appellate Division. Even where the taxpayer fails to comply, the statute still provides for a "reasonableness" appeal from the assessor's valuation of the property. . . . In light of those protections, the risk of an erroneous deprivation of the taxpayer's money is minimal. . . .

[ Ocean Pines, supra, 112 N.J. at 9-10, 547 A.2d 691.]

Because the Supreme Court agreed with the Appellate Division's interpretation of N.J.S.A. 54:4-34 as requiring a reasonableness appeal, it did not decide whether the same was constitutionally required.

A municipality must act within the confines of N.J. Const. Art. VIII, § 1, P 1(a) in making assessments of real property. N.J.S.A. 54:4-34's direction to the assessor to "reasonably" determine the full and fair value does not create that responsibility. *fn14 I would hold that the same constitutional underpinning as found by the Appellate Division with regard to the N.J.S.A. 54:4-34 "reasonableness appeal", inheres (and must be recognized) in N.J.S.A. 54:3-27 and mandates that taxpayer be afforded the opportunity to be heard with respect to its claims of discrimination in assessment. See N.J.S.A. 54:4-23. The fundamental requirement of due process, being the opportunity to be heard "at a meaningful time and in a meaningful manner", Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62, 66 91965), is met where taxpayer is afforded the opportunity to be heard in an expedited procedure akin to that set out in the Ocean Pines matter, and before the taking by the government accomplished under the self executing remedies of the Tax Sale Law.

The opportunity to be heard before the government's taking satisfies taxpayer's entitlement to due process, its rights to equality and uniformity under N.J. Const. Art. VIII, § 1, P 1(a), and its entitlement under equal protection principles; preserves the efficiency and insures the integrity of the collection remedies set out in the Tax Sale Law; and avoids post sale challenges of the tax certificate purchasers' interests and rights. This procedure imposes no more of a burden upon the municipality than it already bears under the constraints of the constitutional requirement of equality and uniformity in assessment and is consistent with the spirit of the courts' decisions in the cases relied upon by the municipality. F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 495 A.2d 1313 (1985). *fn15 While some may fear a strain upon the court in conducting these expedited hearings, I, for one, have not seen a multitude of such dismissal motions.

For the reasons stated above, had I been free to do so, I would have denied the municipality's motion.


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