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1717 Realty Associates, LLC v. Borough of Fair Lawn

May 12, 2009

1717 REALTY ASSOCIATES, LLC, PLAINTIFF-APPELLANT,
v.
BOROUGH OF FAIR LAWN, DEFENDANT-RESPONDENT.



On appeal from Final Judgment of the Tax Court, Docket No. 2329-2007.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 31, 2009

Before Judges Grall and Espinosa.

N.J.S.A. 54:4-34, (L. 1979, c. 91, § 1), establishes a procedure for municipal tax assessors to request income information from property owners to aid the valuation of income-producing property (a "Chapter 91 request"). To promote timely compliance, the statute imposes an appeal-dismissal sanction upon taxpayers who fail to respond within forty-five days. Plaintiff, 1717 Realty Associates, LLC, failed to respond to the Fair Lawn tax assessor's Chapter 91 request, and, pursuant to the statute, the Tax Court dismissed its appeal from an assessment after conducting a reasonableness hearing. Plaintiff claims that the statute is unconstitutional as applied here. Specifically, plaintiff argues that the difference between the resulting tax bill and the tax it contends should be due constitutes an "excessive fine" in violation of the United States and New Jersey Constitutions. We reject this argument and affirm the judgment of the Tax Court.

Plaintiff presents the following points to support this argument on appeal:

POINT I.

THE EXCESSIVE FINES CLAUSE OF THE EIGHTH AMENDMENT PROHIBITS STATUTORY CIVIL FORFEITURES THAT CONSTITUTE EXCESSIVE FINES.

POINT II.

THE EIGHTH AMENDMENT AND ITS STATE CONSTITUTIONAL ANALOG APPLY TO CHAPTER 91.

A. CHAPTER 91's APPEAL PRECLUSION PROVISION SERVES BOTH A PUNITIVE AND DETERRENT FUNCTION AND THEREFORE CONSTITUTES PUNISHMENT.

B. THE FORFEITURE OF PLAINTIFF'S OVERPAID TAXES IS A FINE WITH [SIC] THE MEANING OF THE EIGHTH AMENDMENT.

POINT III.

THE RESERVATION OF OVERPAID TAXES BY DEFENDANT IS AN EXCESSIVE FINE UNDER THE U.S. AND ...


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