On appeal from Tax Court of New Jersey, whose decision is reported at 15 N.J. Tax 467.
Approved for Publication December 2, 1996. As Corrected January 14, 1997.
Before Judges Keefe and Conley. 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.
This tax appeal raises an issue we left open in VSH Realty, Inc. v. Harding Tp., 291 N.J. Super. 295, 301-02, 15 N.J. Tax 653, 677 A.2d 274 (App. Div. 1996). That is, whether discovery infractions at the County Tax Board level may form a basis for a Tax Court's dismissal of an appeal for lack of prosecution within the meaning of N.J.S.A. 54:51A-1c(2) with its consequent loss of Tax Court jurisdiction. Here, after one adjournment, the taxpayer was late in obtaining and serving its appraisal report. That was the basis for the dismissal by the County Tax Board. On de novo review and pursuant to N.J.S.A. 54:51A-1(c), the Tax Court agreed. *fn1 We are constrained to disagree.
The critical facts are not disputed. The taxpayer, Jepson Refrigeration Corporation (Jepson), filed a local property tax appeal to the Mercer County Board of Taxation for the 1995 tax year on the subject property. It did so because it believed that the property was over-assessed. The property (five separate lots) had been listed on the market for approximately one million dollars without success. As far as we can tell, the total assessed value of the five lots at issue far exceeded one million dollars.
The hearing before the County Board was originally scheduled for July 25, 1995. On July 17, 1995, Jepson requested that the hearing be adjourned or, in the alternative, affirmed without prejudice *fn2 because its appraiser could not prepare the appraisal report in time for the hearing. The request was granted and the appeal was rescheduled for August 29, 1995.
Shortly thereafter plaintiff's attorney was advised by the original appraiser that a report could not be completed in time for the rescheduled hearing. Without much choice, he terminated that appraiser and retained Appraisal Associates, Inc. to prepare the report. According to counsel, he was assured that the report would be timely completed. To be timely, the report should have been served upon opposing counsel no later than seven days before the hearing. N.J.A.C. 18:12A-1.9(h).
However, the appraiser's report was not submitted to Jepson's counsel, the Board and the City attorneys until the day of the hearing. We are told that plaintiff requested a short adjournment or a dismissal without prejudice. See footnote 2 (supra) . The City, however, moved for a dismissal for lack of prosecution. The County Board dismissed the appeal. We have no record of the proceeding before the Board or of the reasons for the dismissal. However, the order of dismissal that was thereafter filed reflects as a basis "Judgment Code 2B." We are told that that is a reference to a dismissal for "lack of prosecution; no evidence presented."
Plaintiff then filed a de novo appeal with the Tax Court. Upon the City's motion, the Tax Court dismissed the de novo appeal for lack of prosecution pursuant to N.J.S.A. 54:51A-1(c)(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]." As a result of this dismissal, the taxpayer lost its statutory right to a de novo appeal in the Tax Court because its appraiser's report, though obtained by the day of the first adjourned hearing, was untimely. There is no suggestion in the record before us, nor was there before the Tax Court, that the taxpayer had no intention of presenting its evidence before the Board and that the untimely receipt of the report was designed to thwart or avoid the County Tax Board's review of the appeal.
As we noted in VSH, we understand the Tax Court's desire that County Tax Board appeals be meaningful, and we recognize the Tax Court's discretion to determine whether a dismissal of an appeal at the County Tax Board level was for lack of prosecution. 291 N.J. Super. at 301. We also appreciate the time restrictions the County Tax Boards face in disposing of each year's tax appeals. However, we continue to be of the view that N.J.S.A. 54:51A-1(c)(2) was intended by the Legislature to be narrow in scope.
We first consider what we assume was the authority for the County Tax Board's dismissal, that is N.J.A.C. 18:12A-1.9(e). That regulation 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 ...