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VSH Realty, Inc. v. Harding Tp.

June 18, 1996


On appeal from Tax Court of New Jersey, whose decision is reported at 14, N.J. Tax 379 (Tax 1994).

Approved for Publication June 18, 1996.

Before Judges Havey, Conley and Page. The opinion of the court was delivered by Conley, J.A.D.

The opinion of the court was delivered by: Conley

The opinion of the court was delivered by CONLEY, J.A.D.

Plaintiff taxpayer appeals the final judgment of the Tax Court dismissing its 1994 tax appeal from the County Board of Taxation for lack of jurisdiction pursuant to N.J.S.A. 54:51A-1c(2). That statute provides in part that "if the Tax Court shall determine that the appeal to the county board of taxation has been ... dismissed because of appellant's failure to prosecute the appeal at a hearing called by the county tax board ... there shall be no review [by the Tax Court]." The Tax Judge here concluded that the county board correctly dismissed the taxpayer's appeal for lack of prosecution and, thus, dismissed the appeal. We reverse.

The facts are not complicated. Plaintiff owns certain commercial property in Morris County which was assessed in 1994 for $454,500 ($310,000 for land and $144,500 for improvements). On March 30, 1994, it filed an appeal from that assessment with the Morris County Board of Taxation, seeking an assessment of $227,200 ($155,000 for land, $72,000 for improvements). The property is a 1,644 square foot, three-bay, service station located in Harding Township.

On April 19, 1994, plaintiff's counsel was notified by a letter from the County Tax Administrator that a hearing on the appeal was scheduled for May 12, 1994. The letter advised counsel that he must be prepared and ready for a hearing on the hearing date. It warned: "you must appear at the hearing or lose your right to further appeal to the Tax Court...."

This notice is consistent with N.J.A.C. 18:12A-1.9(e), applicable to the County Tax Boards, which provides:

A petitioner shall be prepared to prove his case by completion and competent evidence. In the absence of some evidence, the board may dismiss the petition. In the case of failure to appear, the board may dismiss the petition for lack of prosecution.

Thus, under this regulation, where a taxpayer appears at a County Tax Board hearing but fails to present "some" evidence, the appeal may be dismissed. Where the taxpayer fails to appear at all, he risks a dismissal for lack of prosecution. It is only the latter which results in a loss of the right to file a de novo appeal in the Tax Court.

On the scheduled hearing date, counsel appeared and indicated his intention of calling as his witness the local assessor. The Township objected but, then, agreed to present the assessor as its own witness and to allow counsel to cross-examine. The assessor testified as to the physical characteristics of the property and his evaluation process which utilized a cost approach. On cross-examination, he provided information that the Township's average ratio of assessed value to true value was 73.79%, indicating an equalized value of the property of $615,937 or $374 per square foot of building with land included. The assessor admitted that he knew of no commercial sales in the Township for more than $200 per square foot. However, counsel conceded before the Tax Judge that this evidence was not sufficient to sustain the taxpayer's appeal. The Board dismissed the appeal on the basis of "no evidence presented."

We note at the outset that we do not view this as a "no evidence" case. To be sure, the parties have characterized the Board's determination as a dismissal for lack of prosecution, as did the Tax Judge, thus supporting the dismissal pursuant to N.J.S.A. 54:51A-1c(2). But the circumstances here do not so easily fit within N.J.A.C. 18:12A-1.9(e) authorizing such dismissals. Critically, as far as we can tell, the result is a substantial change in what has previously been tolerated at the County Board level. *fn1

We have in the past been able to get cases affirmed without prejudice. That practice has been discouraged strongly this year. Much more--it's been much more strongly discouraged this year than in the past. And I was caught somewhat--somewhat by surprised by that. Had I known--had I known that it would have been virtually impossible to get a case affirmed without prejudice I guess I could have brought an--an appraiser. I'm not sure that I would have as strong an appraisal I--I might have gotten. But what happened is I got a notice that said there will be no affirmances without prejudice unless the case is Tax Court pending. And I don't even think I--I--I--I realized that that was on the notice right away, although I realized that it was the case before I went to that hearing. And, you know, I was caught in effect unprepared for a situation where a County Board that was demanding an expert witness. Now, if this was a corporation and they're an out-of-state corporation to boot VSH, its Cumberland Farms. So it was impossible for me to bring a principle of the ...

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