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Frisina v. City of Newark

July 24, 1995

JOSEPH AND REMY FRISINA, PLAINTIFFS,
v.
CITY OF NEWARK, DEFENDANT.



The opinion of the court was delivered by: Small

Once again this court is called on to examine the payment requirements to perfect an appeal to this court or the county board of taxation added by the amendments to N.J.S.A. 54:3-27 in Chapter 75 of the Laws of 1991. In Milltown Industrial Sites v. Milltown Borough, 12 L. Ed. 2d 581 (Tax 1992) we held that the failure of the appealing taxpayer to pay water, sewer, and electric charges to the municipality would deprive this court of the power to hear a direct appeal of a local property tax assessment. In Route 88 Office Assoc. v. Brick Tp., 13 L. Ed. 2d 14 (Tax 1992) we held that the failure of the appealing taxpayer to pay taxes for prior years as well as the taxes for the current year would deprive this court of the power to hear a direct appeal of a local property tax assessment. In the matter now before me I find that the failure of the appealing taxpayer to pay water and sewer charges imposed by the municipality in an appeal to this court from a judgment of the county board of taxation will not deprive this court of the power to hear the matter if the municipality has failed to raise the defense of non-payment of municipal charges at the initial county board appeal of the assessment.

Defendant, City of Newark, moves to dismiss plaintiffs', Joseph *fn1 and Remy Frisina's, appeals of the Essex County Board of Taxation's judgments affirming the tax assessments on Block 510, Lot 47 in the City of Newark for the years 1991, 1993, and 1994. The grounds for the motions are that plaintiffs had not paid water and sewer charges on the subject property at the time that the three appeals were filed and accordingly, pursuant to N.J.S.A. 54:3-27, as amended by Chapter 75 of the Laws of 1991, the complaints must be dismissed. Plaintiffs argue that N.J.S.A. 54:3-27 does not apply to the three captioned appeals and therefore the motions to dismiss should be denied.

For each of the three years in question, 1991, 1993, and 1994, plaintiffs filed a petition of appeal with the Essex County Board of Taxation challenging the tax assessment on their property at 215 Clifton Avenue, in the City of Newark. In each year the Essex County Board of Taxation affirmed the assessment. It is undisputed that at all times the taxpayer was and is delinquent in the payment of water and sewer charges for the subject property for the years in question.

The requirement that taxes be paid at the time that appeals from tax assessments are taken is governed by two statutes; N.J.S.A. 54:3-27 with regard to initial appeals to the county board of taxation and to direct appeals to the Tax Court of New Jersey, and N.J.S.A. 54:51A-1b (formerly N.J.S.A. 54:2-39) with regard to appeals to the Tax Court of New Jersey from county board judgments. See Powder Mill I Associates v. Hamilton Tp. 190 N.J. Super. 63, 69 (App. Div. 1983); Lecross Associates v. City Partners, 168 N.J. Super. 96 (App. Div.), certif. denied 81 N.J. 294 (1979). It is clear in this state that the payment requirements of the two cited statutes are different. Schneider v. City of East Orange, 196 N.J. Super. 587, 594-95 (App. Div. 1984), aff'd 103 N.J. 115, cert. denied 479 U.S. 824, 107 S. Ct. 97, 93 L. Ed. 2d 48 (1986), recently restated at Milltown Industrial Sites v. Milltown Borough, 12 L. Ed. 2d 581, 583 n.1 (Tax 1992). See the recent comprehensive historical treatment of the tax payment requirements in Muscarelle Dev. Co. v. Manalapan Tp., 13 L. Ed. 2d 330 (Tax 1993), aff'd L. Ed. 2d (App. Div. 1994); Echelon Glen Co-op v. Voorhees, 275 N.J. Super. 441, 449-50 (App. Div. 1994). Thus, although failure to comply with N.J.S.A. 54:3-27's requirement that taxes be paid upon the filing of a petition of appeal with the county board of taxation or a direct complaint with this court may be cured by the subsequent payment of taxes before the return date of a motion to dismiss for failure to pay taxes, the failure to have paid the requisite amount of taxes at the time that an appeal to this court is taken from a county board judgment cannot be cured. Powder Mill I Assoc., (supra) , 190 N.J. Super. at 66.

Prior to the enactment of Chapter 75 of the Laws of 1991, N.J.S.A. 54:3-27 read as follows:

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 first three quarters of the taxes assessed against him for the current tax year in the manner prescribed in R.S. 54:4-66 even though his petition to the county board of taxation might request a reduction in excess of one quarter of the taxes assessed for the full year. . . .

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, the State Board of Tax Appeals, or in any court to which the judgment arising out of such appeal shall be taken, except as may be provided for in section 2 of this act [i.e. N.J.S.A. 54:2-39, since repealed and enacted as N.J.S.A. 54:51A-1b].

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

and N.J.S.A. 54:51A-1b read as follows:

At the time that a complaint has been filed with the tax court seeking review of judgment of county tax boards, all taxes or any installments thereof then due and payable for the year for which review is sought must have been paid. No interest shall be due and payable by the appellant for the period from November 1 of the current tax year to the date of filing the complaint.

[N.J.S.A. 54:51A-1b (emphasis added).]

Chapter 75 of the Laws of 1991 amended N.J.S.A. 54:3-27 to read as follows:

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 *fn2 . . .

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, the tax court, or in any court to which the judgment arising out of such appeal ...


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