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Tuesday, April 15, 2008
On April 9, 2008 the Appellate Division, by way of a published opinion, expanded the rights of all owners of non-income producing property in New Jersey. See H.J. Bailey Co. v. Neptune (to read the full opinion click here).
The case, H.J. Bailey Co. v. Neptune, examined whether the failure of an owner of non-income-producing property to respond to a written request for information made by a municipal tax assessor pursuant to N.J.S.A. 54:4-34 (Chapter 91) prohibits ones right to appeal ones tax assessment. As stated by the Appellate Division: “The answer to this question directly implicates a fundamental aspect of the right to Due Process.”
In affirming the Tax Court’s decision, the Appellate Division held: “that an owner of non-income-producing property who fails to respond to a written request for information made by a municipal tax assessor, pursuant to N.J.S.A. 54:4-34, is not subject to the sanction of an Ocean Pines reasonableness hearing. Based on the clear language of the statute, we hold that Chapter 91's appeal-preclusion provision and the limited appeal process fashioned by our Supreme Court in Ocean Pines apply solely to income-producing properties.”
The relevant portion of N.J.S.A. 54:4-34 reads as follows:
“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.”
While examining this statute, the Appellate Division held: “As presently written, N.J.S.A. 54:4-34 offers no resolution of the tension created by the language limiting the sanction of appeal preclusion to income-producing properties, and the legitimate needs of the tax assessor to receive from all taxpayers the information necessary to rationally assess the value of real property within the municipality. While we agree with defendant that the statute, in its current form, poses an inconvenient, practical dilemma for tax assessors, we are not at liberty to ignore Chapter 91's plain language.
Unfortunately, N.J.S.A. 54:4-34's clear language confers upon owners of non-income-producing properties the unilateral right to ignore Chapter 91 requests with impunity. While we may disagree with the public policy behind this conclusion, it is not the judiciary's role to formulate public policy; rather, our duty is to give effect to the intent of the Legislature when that intent is clear. State v. D.A., supra, 191 N.J. at 164. By holding that Chapter 91's appeal-preclusion provision does not apply to non-income-producing properties, we give effect to the statute's clear language. We recognize, however, that the Legislature may hereafter amend the statute to provide practical consequences to non-responding owners of non-income-producing properties.”
The case, H.J. Bailey Co. v. Neptune, examined whether the failure of an owner of non-income-producing property to respond to a written request for information made by a municipal tax assessor pursuant to N.J.S.A. 54:4-34 (Chapter 91) prohibits ones right to appeal ones tax assessment. As stated by the Appellate Division: “The answer to this question directly implicates a fundamental aspect of the right to Due Process.”
In affirming the Tax Court’s decision, the Appellate Division held: “that an owner of non-income-producing property who fails to respond to a written request for information made by a municipal tax assessor, pursuant to N.J.S.A. 54:4-34, is not subject to the sanction of an Ocean Pines reasonableness hearing. Based on the clear language of the statute, we hold that Chapter 91's appeal-preclusion provision and the limited appeal process fashioned by our Supreme Court in Ocean Pines apply solely to income-producing properties.”
The relevant portion of N.J.S.A. 54:4-34 reads as follows:
“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.”
While examining this statute, the Appellate Division held: “As presently written, N.J.S.A. 54:4-34 offers no resolution of the tension created by the language limiting the sanction of appeal preclusion to income-producing properties, and the legitimate needs of the tax assessor to receive from all taxpayers the information necessary to rationally assess the value of real property within the municipality. While we agree with defendant that the statute, in its current form, poses an inconvenient, practical dilemma for tax assessors, we are not at liberty to ignore Chapter 91's plain language.
Unfortunately, N.J.S.A. 54:4-34's clear language confers upon owners of non-income-producing properties the unilateral right to ignore Chapter 91 requests with impunity. While we may disagree with the public policy behind this conclusion, it is not the judiciary's role to formulate public policy; rather, our duty is to give effect to the intent of the Legislature when that intent is clear. State v. D.A., supra, 191 N.J. at 164. By holding that Chapter 91's appeal-preclusion provision does not apply to non-income-producing properties, we give effect to the statute's clear language. We recognize, however, that the Legislature may hereafter amend the statute to provide practical consequences to non-responding owners of non-income-producing properties.”
Labels: Taxpayer Rights
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