On appeal from the Tax Court of New Jersey, Docket No. 4402-2009.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Yannotti and Roe.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
Taxpayer Bocceli, LLC (Bocceli) appeals the May 21, 2010 judgment of the Tax Court dismissing a tax appeal complaint it filed on behalf of Prime Accounting Department for want of subject matter jurisdiction.*fn1 We affirm.
Some background is in order. Penns Grove Associates (Penns Grove) is the owner of property in Carney's Point (Township), Salem County. In 1978, Penns Grove leased the property to Howard Johnson's Company, which constructed a hotel thereon. At the expiration of that lease, on January 11, 1989, Penns Grove leased the property and improvements to Prime Management Company, Inc. (Prime Management), a New Jersey corporation. At some point thereafter, despite Prime Management being the ground tenant responsible to pay all local property taxes, the Township's tax bill reflected "Prime Accounting Department" (Prime Accounting) as taxpayer for the property.*fn2 As the name suggests, however, Prime Accounting is the corporate accounting department of Prime Management, located in Fairfield, and not an independent legal entity.
In any event, WIH Hotels, L.L.C., a successor in interest through a series of transactions and merger with Prime Management, in turn entered into a sublease agreement with Bocceli, assigning its leasehold interest to Bocceli as subtenant of the property. Pursuant to the sublease, Bocceli is exclusively in possession of the property and obligated to pay all of the local property taxes. Penns Grove remains the owner of the property.
Although Bocceli acquired its leasehold interest on July 13, 2007, the municipal tax list was never revised to identify Bocceli as the current taxpayer, but rather continued to name Prime Accounting. In fact, the following year, Muhammad Zubair, a managing member of Bocceli, requested an address change when he appeared at the tax collector's office to pay Bocceli's 2008 property taxes on April 25, 2008.*fn3 The tax collector advised Zubair to produce a deed as proof of Bocceli's ownership interest and then forwarded the completed "request for address change" form to the tax assessor. Despite this advice, Bocceli produced no proof of ownership to either the tax collector or tax assessor, and, therefore, the municipal assessment continued to list Prime Accounting as taxpayer.*fn4 Consequently, tax bills and notices were sent to Prime Accounting at the same listed address.
On March 24, 2009, Bocceli's counsel filed a complaint in the Tax Court against the Township, challenging the assessment on the property for tax year 2009.*fn5 The deadline for filing the appeal was April 1, 2009. See N.J.S.A. 54:3-21. The complaint named Prime Accounting as plaintiff and owner, and properly identified the property's correct block, lot, address and municipality. The complaint did not identify Bocceli in any way; in fact, counsel merely stated that he was "[a]attorney for plaintiff." The complaint was served upon the Township clerk and assessor, and the administrator of the Salem County Board of Taxation pursuant to Rule 8:5-3(a)(7) and N.J.S.A. 54:51A-2.
During discovery, the Township requested income and expense information from Prime Accounting pursuant to N.J.S.A. 54:4-34 (Chapter 91 motion), serving both Prime Accounting and WIH. Bocceli, therefore, never received the Township's request for financial information. Because the Chapter 91 motion went unanswered, the Township filed a motion to dismiss on August 12, 2009.
At the October 9, 2009 hearing on the dismissal motion, counsel of record for Prime Accounting appeared on behalf of Bocceli, which, as noted, was not a named party to the action, and opposed the application. When it became apparent that Prime Accounting was neither the owner of the property, nor the lessee, nor liable for the payment of local property taxes, the court deferred ruling on the Township's Chapter 91 motion and instead directed the parties to address the issue of standing in supplemental filings. In response, Bocceli filed a motion for leave to amend the complaint pursuant to Rule 4:9-1 and Rule 8:3-8(a) to name itself as the taxpayer-plaintiff, as well as opposition to the Township's motion to dismiss. In support of its application, Bocceli produced leasehold documents demonstrating that it was the property's actual taxpayer.
Following argument, Judge DeAlmeida issued a written decision, denying the motion for leave to amend the complaint and dismissing the complaint for ...