The opinion of the court was delivered by: Rimm
This is a local property tax matter involving the payment of taxes to perfect an appeal from an added assessment. The appeal was brought under N.J.S.A. 54:4-63.11, dealing with appeals to the Tax Court from judgments of county boards of taxation on added assessments.
The matter was before me on the motion of the municipality to dismiss the complaint under N.J.S.A. 54:51A-1(b) on the ground that plaintiff had not paid the taxes due as a result of the added assessment and county board judgment at the time that it filed its complaint with the Tax Court. N.J.S.A. 54:51A-1(b) provides that taxes must be paid at the time of the filing of the complaint with the Tax Court appealing a judgment of a county board of taxation.
On the return day of the motion, I ruled that there is no requirement in the law that taxes be paid as a prerequisite to an appeal to the Tax Court of a judgment of a county board of taxation dealing with an added assessment. This opinion now amplifies and expands the decision rendered at the time of the hearing.
Plaintiff owns commercial property at 799 Route 70, designated as Block 673, Lot 18 on the municipal tax map of Brick Township. For the 1995 tax year, the original assessment for the subject property was as follows:
The taxes owed based on the regular assessment for 1995 were not paid until June 1996.
As of July 1, 1995, defendant's assessor imposed an added assessment in the amount of $516,150 on the property. The added assessment was based on a twelve-month value of $1,032,300, prorated for six months in accordance with N.J.S.A. 54:4-63.3.
Plaintiff filed a petition of appeal with the Ocean County Board of Taxation challenging the assessment. The county board of taxation affirmed the added assessment by a judgment dated December 12, 1995. Thereafter, plaintiff filed a timely complaint with the Tax Court contesting the judgment of the county board of taxation. The municipality then filed the motion to dismiss plaintiff's complaint for nonpayment of taxes. In response to defendant's motion, plaintiff contended that Inwood Owners v. Little Falls Tp., 216 N.J. Super. 485 (App. Div.), certif. denied, 108 N.J. 184 (1987), was dispositive of the issue and precluded dismissal of the complaint. In Inwood Owners, the Appellate Division ruled that taxes were not payable as a prerequisite to filing an appeal from the county board judgment affirming an omitted assessment. In addition, the Appellate Division's decision contained language that taxes were not payable as a prerequisite to filing an appeal from a county board judgment affirming an added assessment.
Defendant replied to plaintiff's response seeking to distinguish Inwood Owners from the present case. Defendant argued as follows:
1. Since Inwood Owners actually involved only an omitted assessment, any language in the Appellate Division's opinion relating to an added assessment was "merely dicta " and not controlling.
2. Omitted assessments result from the assessor's determining that he had failed to make an assessment on property in the municipality. An added assessment results from the taxpayer's completing construction during the tax year. Thus, an added assessment results from something the taxpayer did ...