The opinion of the court was delivered by: Small
The plaintiffs in these eight matters sought review of their 1996 tax assessments by the Essex County Board of Taxation. The assessments were all affirmed by the county board under judgment code 34 requiring income and expense statements (N.J.S.A. 54:4-34). Following appeal by the plaintiffs from the county board judgments to the Tax Court, the defendant, City of Orange, now moves to dismiss the complaints for failure of the plaintiffs to comply with N.J.S.A. 54:4-34, as amended by L.1979, c. 91, sec. 1 (commonly known as Chapter 91). Defendant asserts that in each case, plaintiffs failed to timely respond to the Chapter 91 request of the municipal assessor for income and expense information on the income-producing subject properties. Plaintiffs contend that the Chapter 91 requests were defective and thus required no response.
The plaintiffs in these cases can be divided into two groups according to the names of their respective principals: the Cassini matters and the Hwang matters. For each of the two groups, the municipal assessor for the City of Orange sent by certified mail, on or about September 22, 1995, a request for income and expense information on the subject properties, along with a copy of N.J.S.A. 54:4-34. The critical portions of the letters read:
In accordance with N.J.S.A. 54: 4-3[sic], you are requested to submit the appropriate income and expense data requested on the attached form for the tax year ending December 31, 1995 for the property located at. . . . Such information will be considered by this office in determining the assessments for the property for the 1996 tax year.
It is undisputed that these requests were received by the property owners within one to three days of mailing.
In the Cassini matters, the property owners made no response to the Chapter 91 requests until about May 23, 1996 when they were filed with the assessor's office. It is conceded that these filings were made long after the 45-day response period prescribed in N.J.S.A. 54:4-34.
In the Hwang matters, the property owners allege, by certification of the principal Aileen Hwang, that prior to the expiration of the 45-day period she contacted the assessor's office and spoke with a woman working in that office who was not the assessor. Ms. Hwang offers telephone records with phone numbers indicating that she called the assessor's office in mid-October 1995. Ms. Hwang asserts that she informed the assessor's staff that the Chapter 91 requests could not be complied with because 1995 year-end data was not available since the requests were only made in September of 1995, and the data would not be available until early 1996. Ms. Hwang certifies that the woman with whom she spoke acknowledged that the assessor's office had received the 1994 income and expense information for the subject properties, and instructed Ms. Hwang to defer response of the 1995 Chapter 91 requests since the city had the most readily available information at that time. As a result, the responses to the 1995 Chapter 91 requests in the Hwang matters were not filed with the assessor's office until about May 23, 1996.
The defendant disputes the factual claims put forth by Ms. Hwang. The municipal tax assessor certifies that all telephone calls relating to Chapter 91 issues are forwarded to her, and that she never spoke with Ms. Hwang or any other person representing the plaintiffs regarding these matters. Further, the assessor claims that the telephone records offered by Ms. Hwang do not indicate any calls to her phone number at the assessor's office.
Plaintiffs argue, in all of the cases, that they had no obligation to comply with the Chapter 91 requests because such requests were defective in that they sought information not yet available, or were unclear as to the information that was to be provided. In the alternative, plaintiffs in the Hwang matters assert that they gave sufficient notice to the assessor's office of their inability to comply with the Chapter 91 requests such that they should be excused from the 45-day filing deadline. Plaintiffs in the Cassini matters do not raise this latter defense since no attempt to contact the assessor's office was made before the income and expense information was filed in May 1996.
Defendant claims that the Chapter 91 requests were clear. Defendant asserts that when the request letters and the income and expense data forms are read together, it is evident that property owners are to provide whatever information is available on the date of the request, and that such requests only seek estimates, not actual figures, for compliance.
In a post-argument submission, the movant, defendant, City of Orange, asserts that for the tax year 1995, the Cassini plaintiffs received similar requests for 1994 year-end data and responded to them by submitting information for the period January 1994 through October 1994. Additionally, the city asserts that of the 600 Chapter 91 requests made in 1995 for the 1996 tax assessments, the assessor received 580 responses. These facts are used to support the arguments that the requests were not ambiguous, could be responded to, were in fact responded to by the majority of taxpayers, and were responded to by one of the principals in these cases in a virtually identical situation in the prior year. Defendant asserts that plaintiff had an obligation to respond in some way, even to a confusing request, because the Cassini taxpayers provided a partial answer in the prior year.
For purposes of these motions to dismiss, I must determine whether the Chapter 91 requests were defective such that the plaintiffs could entirely ignore the 45-day filing deadline for sending the income and expense data to the assessor. Only if I determine that the requests were not defective do I need to consider whether the plaintiffs in the Hwang matters provided sufficient notice to the assessor to avoid the need for further compliance with the requests. *fn1
N.J.S.A. 54:4-34 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 45 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 45 days of such request or to 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 purpose of this statute "is to afford the assessor access to fiscal information that can aid in valuing the property [and]. . . encourage compliance with the accounting requirement." SKG Realty ...