Chapter 91: Read Instructions Carefully Before Handling!
We have written extensively on this blog about N.J.S.A. 54:4-34, also known as “Chapter 91.” This statute allows a municipal tax assessor to request from commercial property owners certain income and expense information. Failure to provide a timely response to such a request is grounds for a municipality to move to dismiss a tax appeal in the subsequent year.
Typically our blog posts report that another tax appeal was dismissed due to a taxpayer’s failure to comply with the requirements of the statute. In fact, two of my colleagues authored an article that recently appeared in the New Jersey Law Journal entitled “Chapter 91: Assessment Tool Turned Litigation Sword”, which highlights the effectiveness of this statute in fending off tax appeals.
But every now and again a case comes along and reminds us that while the municipalities have this powerful weapon at their disposal, they too must play by the rules.
In Milric Plaza v. Wall Twp and Route 34 Corporate Park v. Wall Twp. the Township of Wall moved to dismiss two separate appeals for failure to respond to the assessor’s Chapter 91 request. The problem was that the Chapter 91 requests were dated August 22, 2011, but sought information pertaining to the 2011 tax year. Of course, as argued by the taxpayers, the tax rolls were finalized for the 2011 tax year as of January 10, 2011. The taxpayers argued that they were not obligated to respond to the Chapter 91 request as the information sought could not possibly be used in formulating the 2011 assessment. The Tax Court agreed, holding that “if the assessment date has passed, there is no purpose for a Chapter 91 request.” In support, the court cited Ocean Pines Ltd. v. Point Pleasant Bor., 112 N.J. 1 (1988) in which the Supreme Court held that the purpose of Chapter 91 is to assist the assessor in making the assessment.
The Township had argued that it was clear that the assessor intended to use the information for the 2012 tax year. The Tax Court agreed that the request probably contained an inadvertent or typographical error, however, relying on its 1997 decision in Cassini v. City of Orange 16 N.J. Tax 438, the court held that “[t]he taxpayer should not bear the burden of divining the assessor’s intent or purpose in sending the Chapter 91 request.”
While a Chapter 91 motion to dismiss usually means bad news for the taxpayer, this case demonstrates the importance of carefully reviewing the record to ensure that the assessor has complied with all of the requirements of the statute. A mistake on the assessor’s part could save your appeal.
A copy of the court’s decision may be found here.
For more on Chapter 91 cases please see:
No Landlord-Tenant Relationship Means No Dismissal Under Chapter 91
Two More Taxpayers Victims of Chapter 91 “Litigation Gamesmanship”
To Wield Chapter 91 Sword to Dismiss Tax Appeals Towns Must Play by the Rules
Property Owner’s “False” Responses Lead to Dismissal of Tax Appeal
Property owner survives Verona’s “Chapter 91″ attack
Chapter 91 Strikes Another Taxpayer
Tax Court Denies Phillipsburg’s Chapter 91 Motion to Dismiss
