The opinion of the court was delivered by: Kuskin
In this local property tax appeal, filed directly with the Tax Court pursuant to N.J.S.A. 54:3-21, defendant moves to dismiss plaintiff's complaint by reason of plaintiff's failure to furnish income information in accordance with requirements of N.J.S.A. 54:4-34 (amended by L. 1979, c. 91 and thus commonly referred to as "Chapter 91 "). Plaintiff contests the motion on the grounds that (i) the required information was furnished to the assessor after the statutory time limit but in time to be used in the assessing process, (ii) the information provided was in fact used in setting the assessments on plaintiff's property and, therefore, (iii) the "good cause" provision of N.J.S.A. 54:4-34 warrants denial of defendant's motion. This statute provides:
Every owner of real property of the taxing district shall, on written request of the assessor, made by certified mail, render a full and true account of his name and real property and the income therefrom, in the case of income-producing property, and produce his title papers, and he may be examined on oath by the assessor, and if he shall fail or refuse to respond to the written request of the assessor within forty-five days of such request, or to testify on oath when required, or shall render a false or fraudulent account, the assessor shall value his 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. No appeal shall be heard from the assessor's valuation and assessment with respect to income-producing property where the owner has failed or refused to respond to such written request for information within forty-five days of such request or testify on oath when required, or shall have rendered a false or fraudulent account. The county board of taxation may impose such terms and conditions for furnishing the requested information where it appears that the owner, for good cause shown, could not furnish the information within the required period of time. In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section.
The parties have stipulated that: the subject property, comprising two tax lots, is income-producing within the meaning of Chapter 91; the assessor's request, seeking information to be used in connection with the 1995 revaluation assessments on the property, was timely served by certified mail on August 5, 1994 (so that the statutory forty-five day period expired on September 19, 1994); the mailing included a copy of N.J.S.A. 54:4-34; and the company performing the revaluation acted as agent for the assessor in responding to questions relating to the request and in receiving and processing information furnished in response to the request.
Based upon the Certifications submitted by the parties and the testimony presented at an evidentiary hearing, I find the following facts.
The assessor's August 5, 1994 mailing to plaintiff contained three documents. One was a letter of transmittal which advised the taxpayer that it was "requested to submit the appropriate income and expense data requested on the attached forms for the year ended December 31, 1993 ...."and stated that the information would be considered "in determining the assessment for the property for the 1995 tax year." The letter further stated: "If you have any questions with respect to completing the enclosed form, please call [the revaluation company] at [the revaluation company's telephone number]."
In addition to this transmittal letter, the mailing included two forms, one containing a format for reporting of items of income and expense and a second entitled "Lease Information-Class 4A and 4B." This second form requested the following information: a listing of each tenant space in the taxpayer's property; the nature of each tenant's use; whether each space was occupied or vacant; the area of each space; the rent per square foot for each tenant; the date of commencement and expiration of each lease; rent escalations for each tenant; and the payments by each tenant for real estate taxes, utilities and maintenance.
Plaintiff received the assessor's mailing on August 10, 1994. Plaintiff had available all information necessary to provide a "full and true" account of the income from its property as contemplated by Chapter 91 and as required by the forms. By August 31, 1994, plaintiff's controller completed or substantially completed the forms with income and expense information for the fiscal year ending September 30, 1993 and information as to current leases. He then submitted the documents to the president of plaintiff, Henry J. Glanternik, for review. Mr. Glanternik instructed the controller not to return the forms to the assessor because he had questions as to how the forms should be completed and was concerned that information he desired to provide would not fit on the forms or was not requested by the forms. These questions related to the calendar or fiscal year for which information was required, the date as of which the property was being valued and how to provide information with respect to leases with phased-in rents and free rent periods. Mr. Glanternik also wanted the revaluation company to consider information as to environmental clean-up costs and his views on the price at which the property could be sold.
Mr. Glanternik attempted to communicate his questions and concerns to the revaluation company commencing at the end of August, 1994 and continuing through September, 1994. His efforts consisted of five telephone calls, two of which were placed in August and three of which were placed in September. Although none of these telephone calls were returned, Mr. Glanternik was advised by a secretary or receptionist that the principal of the revaluation company would contact him and make arrangements to inspect the property. No other efforts were made by plaintiff to communicate with the revaluation company until late October or November, 1994 when plaintiff's controller also attempted to reach the principal of the revaluation company by telephone.
In late November or early December, 1994, the principal of the revaluation company spoke with Mr. Glanternik and advised him that, in order to assess the subject property accurately, the revaluation company needed to inspect the property and obtain income and expense information. In this conversation, the principal of the revaluation company made some reference to an "extension of time," but this reference did not relate specifically to the time for answering the Chapter 91 request.
Pursuant to this telephone call or a later call, on December 19, 1994 the principal of the revaluation company and the assessor inspected the property and met with plaintiff's controller who made available copies of the leases for the premises. During the inspection, or within a few days thereafter, the controller provided to the revaluation company information as to the area of each tenant space, term of each lease then in effect, the monthly rent and percentage share of expenses payable by each tenant, descriptions or specifications (but not costs) for tenant improvement work performed or to be performed for some of the tenants and information as to renewal options and renewal rent for each tenant. The controller also provided cash flow projections for the year ending September 30, 1995. No information was furnished as to actual operating expenses incurred by the landlord for the fiscal year ending September 30, 1993 or September 30, 1994, and only very limited information was furnished as to the monetary amounts of tenant contributions to operating expenses and real estate taxes.
In setting the 1995 assessments on the subject property, the principal of the revaluation company utilized the information provided by plaintiff as to the area of each tenant space and as to the rent paid by each of the tenants. On December 27, 1994, after inspection of the property and receipt of information from plaintiff, the revaluation company sent letters to plaintiff stating that the aggregate revaluation assessment on plaintiff's two tax lots would be $27,394,600. Similar letters sent on December 8, 1994 had stated the aggregate assessment to be $14,023,600. The 1995 assessments on the two lots are as set forth in the December 27, 1994 letters.
Plaintiff contends that the questions and concerns articulated by Mr. Glanternik, the failure of the revaluation company to return any of his five telephone calls, the extension of time allegedly granted by the principal of the revaluation company and the fact that plaintiff provided information responsive to the Chapter 91 request which was actually used to determine plaintiff's 1995 assessments constitute, in their totality, "good cause" for extending the forty-five day period in N.J.S.A. 54:4-34 until December, 1994 when the information was delivered to the revaluation company.
The "good cause" provision in N.J.S.A. 54:4-34 is the following:
The county board of taxation *fn1 may impose such terms and conditions for furnishing the requested information where it appears that the owner, for good cause shown, could not furnish ...