The opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
: TAX COURT OF NEW JERSEY
JANTZEN, GIUSEPPIN NINA & : DOCKET NOs.: 008224-2022
MATTHEW D., : 008229-2022
:
Plaintiffs, : CIVIL ACTION
:
v. :
: Approved for Publication
GREEN TOWNSHIP, : In the New Jersey
: Tax Court Reports
Defendant. :
:
Date: May 30, 2023
Kevin S. Englert for plaintiffs (The Englert Law Firm, L.L.C., attorneys).
Robert B. McBriar for defendant (Schenck, Price, Smith & King, L.L.P., attorneys).
BIANCO, J.T.C
This formal opinion shall serve as the court’s determination of a motion filed by plaintiffs
Matthew Jantzen and Nina Giuseppin Jantzen (“Taxpayers”) to change the small claims track
designation assigned by the Tax Court Management Office (“TCMO”) for both above-referenced
docket numbers, to the standard track to secure more comprehensive discovery; and a cross-motion
filed by defendant Green Township (“Green”) for summary judgment to dismiss as untimely the
added assessment appeal under docket number 008224-2022 pursuant to N.J.S.A. 54:4-63.11.
These matters 1 concern Taxpayers property located at 5 Sunny Lane, Township of Green, County
of Sussex, and designated by the taxing district as Block 119, Lot 6 (“Subject Property”).
1
Judge Novin recused himself from participating in the discussion of, and the vote on, the
publication of this opinion.
For the reasons more specifically set forth herein, the court (1) grants Taxpayers’ motion
for a track change in both matters; and (2) denies Green’s cross-motion for summary judgment in
Docket No. 008224-2022 finding that (a) Green did not provide Taxpayers adequate notice of the
added assessment, and (b) due process requires a relaxation of the filing deadline. The court
addresses the dismissal of the cross-motion first.
I. Findings of Facts
For tax year 2021, the Subject Property was initially assessed at $243,100 according to the
Property Record Card (“PRC”). 2 Taxpayers purchased the Subject Property on September 1, 2021,
for $700,000. In March 2021, six months prior to said purchase, Green issued a permit for
reconnection of electric service at the Subject Property. In April 2021, Green issued another permit
for reconnection of electric services to a barn on the Subject Property. 3
On October 5, 2021, the 2021 Added Assessment Tax List was filed with the Sussex
County Board of Taxation (“County Board”) as public record in which the name and address of
the former owners were reflected. In said list, the owners of the Subject Property were identified
as “Singe, Herbert R Jr & Belinda R.” (the former owners), with the postal address of “11 Poplar
CT Hackettstown, New Jersey, 07840,” which is not the address of the Subject Property. The
added assessment more than doubled the total assessment of the Subject Property to $592,900.
Thereafter, the PRC reflects that the 2022 assessment on the Subject Property was set at $592,900.
2
Assessment date of October 1, 2020. The Subject Property is a class 2 single family residence
containing 4,235 square feet of livable space with four bedrooms and three and a half baths. The
Subject Property also includes a 2,852 square foot stable/barn.
3
The April 2021 permit for the reconnection of electrical service to the barn produced by Green
has a handwritten note stating, “6 mos-349,800.” By adding the original 2021 assessment of
$243,100 to the $349,800 figure in the note, the court arrives at $592,900, a number representing
the 2022 total assessment on the Subject Property.
2
On November 3, 2021, Taxpayers’ mortgage company, Rocket Mortgage (or its loan
servicer), paid the amount due for the added assessment without Taxpayers’ knowledge. Green
makes no representation that the notice of the added assessment on the Subject Property was ever
mailed or delivered to either the previous owners (as listed on the 2021 Added Assessment Tax
List), Taxpayers, or Rocket Mortgage. Green’s Tax Collector (“Tax Collector”) did not provide
any certification herein to indicate where the bill for added assessment was sent, or if it was sent
at all. The Tax Collector’s required certification to the County Board “setting forth the date on
which the bulk mailing [of the tax bills for added assessments] was completed,” N.J.S.A. 54:4-
63.11, does not exist. 4
Upon receipt of the 2022 annual notice of assessment, Taxpayers contacted Green’s Tax
Assessor to determine the reason for the increase in the assessment. Taxpayers were informed that
the assessment was increased because they cleared debris from the Subject Property. At this point,
4
The court requested counsel to produce the Tax Collector’s certification of bulk mail of the tax
bills for added assessments required by N.J.S.A. 54:4-63.11. Green’s counsel, in his certification
to the court dated May 12, 2023, “confirmed that neither Green nor the Tax Board have a copy of
the [Tax Collector’s] certification of bulk mailing. Taxpayers’ counsel provided an official
response to his OPRA request for the Tax Collector’s “Certification of mailing of added
assessment bill in 2021 for Green Township.” That response was provided by the Sussex County
Tax Administrator in her official capacity by letter dated May 10, 2023, indicating that the County
Board “does not have the records you request on file.” In his aforementioned certification, Green’s
counsel states that “the Tax Collector advised me that she printed the 2021 added tax bills, placed
them in stamped envelopes property addressed to owners identified on the 2021 Added Assessment
Duplicate and with Township’s proper return address, and hand delivered them to the local post
office for delivery as is her usual and custom practice.” (Emphasis added.) The Tax Collector
herself did not certify to these facts. Missing from this exchange between the Tax Collector and
counsel, is the date she allegedly mailed the 2021 added tax bills. Moreover, if the court accepts
arguendo, the Tax Collector’s representation to Green’s counsel as accurate, then it is clear that
the bill for the added assessment on the Subject Property was sent to the former owners and not to
Taxpayers because it is the former owners’ names and address that appear on the 2021 Added
Assessment Duplicate.
3
Taxpayers were still unaware of the 2021 added assessment. Taxpayers timely filed an appeal of
their 2022 property taxes.
Taxpayers never received actual notice of the added assessment until April 25, 2022, when
Green provided them with the 2021 added assessment list as part of discovery in their 2022 tax
appeal.
II. Procedural History
On May 2, 2022, Taxpayers filed an Added/Omitted Petition of Appeal with the County
Board challenging the 2021 added assessment. On May 9, 2022, Taxpayers received a letter from
the Sussex County Tax Administrator on County Board letterhead stating that their petition was
returned because it was untimely filled (i.e., filed 152 days after the December 1, 2021, statutory
filing deadline). There was no accompanying judgment of the County Board dismissing
Taxpayer’s complaint. 5
5
Despite the County Board’s failure to issue a judgment of dismissal, the court is satisfied that
the matter is properly before the Tax Court. While the present controversy concerns an added
assessment and not a regular assessment, the court observes that, with regard to regular
assessments:
Where a petition or cross-petition of appeal to a county board of
taxation is actually received by the board after April 1 of the tax year
(except if April 1 shall fall on a Saturday, Sunday, or holiday, then
after the first business day immediately thereafter), the county board
of taxation or the county tax administrator, if authorized by the
board by resolution, shall not accept said petition or cross-petition
of appeal for filing but shall forthwith return the same to the person
filing it, together with the filing fee, if the filing fee accompanied
said petition or was otherwise paid. The petition or cross-petition to
be returned shall have endorsed thereon the date of receipt and a
statement “Petition or cross-petition is returned by reason of late
filing” and shall be accompanied by a judgment of dismissal by the
county board of taxation for late filing.
[N.J.A.C. 18:12A-1.20(a).] (Emphasis added.)
4
On June 17, 2022, Taxpayers timely appealed to the Tax Court challenging the return of
their 2021 added assessment petition due to untimely filing.
On September 30, 2022, Taxpayers filed a motion to change tracks to expand discovery in
both hereinabove referenced matters. Taxpayers allege four counts against Green, including a spot
assessment claim, and a claim to compel Green to conduct a full revaluation of all property within
the taxing district. On November 8, 2022, Green filed a cross-motion for summary judgment to
The court has found no similar provision specifically applicable to added assessments. The County
Board adopted a resolution directing “the Tax Administrator . . . to accept all appeals, and return
late filed petitions as received, including any attached fees, with a judgment of dismissal by reason
of late filing, under the authority of the board for the 2022 Tax year.” Sussex County Board of
Taxation Resolution, 02-16-2022-2 (Feb. 16, 2022) (emphasis added). The resolution, however,
makes no mention of N.J.A.C. 18:12A-1.20(a) and does not distinguish between added and regular
assessments. Ibid. Pursuant to R. 8:2(a), “[t]he Tax Court shall have initial review jurisdiction of
all final decisions including any act, action, proceeding, ruling, decision, order or judgment
including the promulgation of any rule or regulation of a County Board of Taxation . . .” Ibid.,
(emphasis added). See also N.J.S.A. 54:51A-1(a) (providing that “[a]ny party who is dissatisfied
with the judgment, action or determination of the county board of taxation may seek review of that
judgment, action or determination in the tax Court . . .”) (Emphasis added.) The court finds that
the Sussex County Tax Administrator was acting with apparent authority on behalf of the County
Board in rejecting Taxpayers’ complaint as untimely, which rejection constitutes an action or
decision of the County Board under R. 8:2(a), and an action or determination under N.J.S.A.
54:51A-1(a). New Jersey courts have applied the doctrine of apparent authority where a principal
acts in such a way as to convey the impression to a third party that the agent has certain powers
which he or she may or may not possess. See Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 497
(App. Div.), certif. denied, 177 N.J. 224 (2003); C.B. Snyder Realty Co. v. Nat'l Newark & Essex
Banking Co. of Newark, 14 N.J. 146, (1953); and Am. Well Works v. Royal Indem. Co., 109
N.J.L. 104, 108 (E. & A. 1932). Moreover, the language of R. 8:2(a) and N.J.S.A. 54:51A-1(a) is
broad enough for the court to construe that the County Board’s failure to act is an act of omission
that constitutes an action, decision, or determination of the County Board reviewable by the Tax
Court. See Taneian v. Meghrigian, 15 N.J. 267, 276 (1954) (finding that “[m]any acts of
commission can be regarded as acts of omission and vice versa. [citations omitted].” To hold
otherwise would mean that Taxpayers would have no recourse, given that the County Board is no
longer constituted to hear 2021 added assessment appeals, and the matter cannot be remanded
there for that purpose. See N.J.S.A 54:3-26, (providing that “[t]he county board of Taxation shall
hear and determine all such appeals within three months after the last day for filing such appeals.”)
5
dismiss the court complaint (Docket No. 008229-2022 only) challenging Green’s 2021 added
assessment due to untimely filing.
III. Applicable Law
A. Summary Judgment
A motion for summary judgment should be granted in the absence of genuine issues of
material facts. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995)
(summary judgment will be granted “if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to a judgment or order as a matter
of law.”). Denial is appropriate only where the evidence is such that reasonable minds could return
a finding favorable to the party opposing the motion. Brill, 142 N.J. at 540.
B. Added Assessment Filing
Our courts have held regarding annual assessments that the “timeliness of a tax appeal is
critical.” Prime Accounting Dept. v. Township of Carney’s Point, 212 N.J. 493, 507 (2013). The
“[f]ailure to file a timely appeal pursuant to N.J.S.A. 54:3-21[] . . . is a fatal jurisdictional defect
requiring dismissal of the complaint.” Regent Care Ctr. v. City of Hackensack, 18 N.J. Tax 320,
324 (Tax 1999).
Failure to file a timely complaint divests this court of jurisdiction even in the absence of
harm to the municipality. Lawrenceville Garden Apartments v. Twp. Of Lawrence, 14 N.J. Tax
285, 288 (App. Div. 1994). In tax matters, strict adherence to statutory filing deadlines is of
particular concern given the “exigencies of taxation and the administration of local government.”
F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 424 (1985) (citing Princeton Univ. Press
v. Borough of Princeton, 35 N.J. 209, 214 (1961)). “The policy of applying strict time limitations
6
to tax matters is based upon the very nature of our administrative tax structure.” Galloway Twp.
v. Petkevis, 2 N.J. Tax 85, 92 (Tax 1980).
However, with added assessments (as well as omitted assessments), the failure to strictly
adhere to statutory filing deadlines is less consequential given that the municipality does not
anticipate any revenue derived from added and omitted assessments as they go through the
budgeting process for the administration of local government. As with added assessments, “[a]
municipality does not rely on the collection of omitted taxes unknown during the budget process
to operate its government or meet its expenses in the tax year in which the omitted assessment is
imposed.” BDB Enterprises, LLC v. Brick Twp., 16 N.J. Tax 22, 26 (Tax 1996), (citing Inwood
Owners v. Little Falls Twp., 216 N.J. Super. 485, 490 (App. Div. 1987)), cert. denied, 108 N.J.
184 (1987), (citing Schneider v. East Orange, 196 N.J. Super. 587, 593 (App. Div. 1984), aff’d
o.b., 103 N.J. 115, cert. denied 479 U.S. 824 (1986). “In terms of the legal and fiscal effects there
is no difference between [added and omitted] assessments.” BDB Enterprises, LLC, 16 N.J. Tax
at 26.
N.J.S.A 54:4-63.7 provides:
As soon as the added assessment duplicate is delivered to the
collector of the taxing district, he shall at once begin the work of
preparing, completing, mailing or otherwise delivering the tax bills
to the individuals assessed for added assessments and shall complete
that work at least one week before November first. The validity of
any added tax or assessment or the time at which it shall be payable
shall not be affected by the failure of a taxpayer to receive a tax bill,
but every taxpayer is put upon notice to ascertain from the proper
official of the taxing district the amount which may be due for taxes
or assessments against him or his property for added assessments.
7
[N.J.S.A. 54:4-63.7.] 6
N.J.S.A 54:4-63.11 provides in pertinent part:
Appeals from added assessments may be made to the county board
of taxation on or before December 1 of the year of levy, or 30 days
from the date the collector of the taxing district completes the bulk
mailing of tax bills for added assessments, whichever is
later…Within ten days of the completion of the bulk mailing of tax
bills for added assessments, the collector of the taxing district shall
file with the county board of taxation a certification setting forth
date on which the bulk mailing was completed.
[N.J.S.A. 54:4-63.11, emphasis added.]
The Legislature amended N.J.S.A. 54:4-63.11 on September 17, 1999. S.N. 673 (1999).
The amendment, among other language, added the above-emphasized language to N.J.S.A. 54:4-
63.11. Previously, said statute only allowed for added assessment appeals on or before December
1. Additionally, the statute did not require the tax collector to certify the bulk mailing of the tax
bills, nor did it provide the additional appeal deadline of 30 days from the completion of the bulk
mailing. On the same date within the same act, the Legislature also amended N.J.S.A. 54:3-21,
which governs annual assessment appeals, with substantially similar “bulk mailing” language.
S.N. 673 (1999).
C. Due Process
“The critical components of due process are adequate notice, opportunity for a fair
hearing and availability of appropriate review.” Centorino v. Tewksbury Twp., 18 N.J. Tax
303, 316 (Tax 1999) (citing Schneider v. City of E. Orange, 196 N.J. Super. 587, 595 (App.
Div. 1984), aff’d., 103 N.J. 115, cert. denied. 479 U.S. 824 (1986). “What constitutes adequate
6
The requirement in N.J.S.A. 54:4-63.7 for tax collectors to mail or deliver tax bills for added
assessments “to the individuals assessed,” mimics the language contained in N.J.S.A. 54:4-64
regarding the annual tax bills.
8
notice depends, to some degree, on the “practicalities and peculiarities” of the particular case at
issue.” Id. at 316 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)).
“Due process does not require tax collectors…to examine the tax rolls to search for
outdated or incorrect addresses supplied by the property owners…[I]t is something else
altogether if someone involved ignored conscious awareness that the address was outdated.”
Brick Twp. v. Block 48-7, Lots 34, 35, 36, 202 N.J. Super. 246, 252-254 (App. Div. 1985).
"[W]here it is established that the taxpayer has…taken reasonable steps to notify the
municipality, then the burden shifts to the taxing authorities to change their records to reflect
the new address…” Berkeley v. Berkeley Shore Water Co., 213 N.J. Super 524, 533 (App. Div.
1986). “The taxing authority must then show that it took reasonable steps to effectuate notice.”
Id. at 534.
Courts have held that “[n]otice mailed by a county board of taxation to an address
different in a significant respect from that specified in a written notification from a petitioner
does not (unless received) constitute adequate notice and does not satisfy the requirements of
due process.” Family Realty Co. v. Secaucus Town, 16 N.J. Tax 185, 193 (Tax 1996). “The
requirements of due process have not been met unless the person…has been given an
opportunity to be heard as to the validity and the amount of the levy…before the excise becomes
irrevocably final.” City of Camden v. Camden Masonic Ass’n, 9 N.J. Tax 331, 343 (Tax 1987)
aff’d., 11 N.J. Tax 88 (App. Div. 1989).
IV. Legal Analysis
A. Appealing the Added Assessment
9
Green argues that the court must dismiss Taxpayers’ added assessment complaint with
prejudice because: (1) they failed to satisfy the December 1, 2021, statutory filing deadline; (2)
they had statutory and constructive notice of the 2021 added assessment; and (3) a prudent taxpayer
would have made an inquiry on the added assessment. Taxpayers argue that dismissal is
inappropriate because they never received notice of the 2021 added assessment. The issue before
the court is whether the filing deadline by which to appeal Taxpayers’ added assessment should
be extended when the tax collector provided them with no notice of the added assessment tax bill.
Under the facts presented before the court in this case, no representation is made that the
Tax Collector ever mailed notice of the 2021 added assessment on the Subject Property to
Taxpayers. While the Tax Assessor certified that “[t]he 2021 Added Assessment Tax list, [was]
filed with the Sussex County Board of Taxation on or before October 5, 2021,” the court was not
provided with a certification from the Green’s Tax Collector, that the completion of the bulk
mailing of tax bills for the 2021 added assessments ever occurred. Moreover, the Tax Collector’s
“certification setting forth date on which the bulk mailing was completed,” required to be filed
with the County Board under the revision of N.J.S.A. 54:4-63.11, does not exist.
Prior to the legislature’s passing the act to amend N.J.S.A 54:4-63.11 and N.J.S.A. 54:3-
21 to include the bulk mailing language, the court had made several rulings specifically regarding
notice and the added assessment appeal deadline.
In Haddon Hills Apartments North v. Haddon Township, 31 N.J. Super. 124 (App. Div.
1954), the township levied an added assessment on the taxpayer’s property after it had finished
construction before October 1, 1949. Id. at 125. The township did not file the list of added
assessments until October 4, three days after the date required by statute, and did not certify the
added assessment list to the tax collector until November 1, twenty-two days after the required
10
date. Id. at 126. The taxpayer filed its appeal on December 1, 1950. Ibid. The taxpayer argued
that their filing deadline should be December 1, 1950, instead of December 1, 1949, as would be
required strictly under the statute, because the township filed its added assessment list three days
late. Ibid.
Citing N.J.S.A. 54:4-58, the court held that the three-day late filing “is an irregularity which
does not invalidate any assessment…” Haddon Hills, 31 N.J. Super. at 126. Further, the taxpayer
was put on notice because the assessors examined all the buildings on taxpayer’s property with its
representative present. Id. at 127-128. The court found the added assessment valid and the proper
appeal date to be December 1, 1949. Id. at 128.
In 18 Washington Place Associates v. City of Newark, 8 N.J. Tax 608 (Tax 1986), a
taxpayer purchased previously exempt property from Rutgers University on June 13, 1983. Id. at
610. Upon purchase, the property changed from exempt to nonexempt, which prompted the
assessor to assess the property from July through December 1983. Ibid. The assessor did not send
a certified mail notice of the assessment, and while the tax collector did send a tax bill by certified
mail, it was returned without delivery. Ibid. The taxpayer filed an appeal of the assessment on
December 19, 1984. Id. at 614. The taxpayer argued that the court should excuse its late filing
because the assessor did not send notice of the assessment nor did the collector send a tax bill.
Holding that the deadline should not be extended, the court cited N.J.S.A 54:4-63.29 to
find that the procedural provisions of the added assessment statutes applied to an assessment’s
returning from exempt property to nonexempt. Id. at 611. The court then cited N.J.S.A. 54:4-63.7
to find that the City was not required to give the taxpayer certified-mail notice of the assessment,
and that the failure of the City’s tax collector to send the taxpayer a tax bill does not affect the
validity of the 1983 assessment. Id. at 613.
11
In American Hydro Power Partners, L.P. v. City of Clifton, 9 N.J. Tax 259 (Tax 1987), the
taxpayer received a tax bill on December 22, 1986, from its lessor, who received the bill on
December 11, 1986. Id. at 261. The bill stated that the tax was due on December 31, 1986, and
that the taxpayer had to file an appeal by December 1 of the year of levy. Ibid. The assessor did
not file the added assessment list until November 13, 1986, and did not deliver the list to the tax
collector until sometime on or after November 14, 1986. Ibid. The Director extended the deadline
to appeal added assessments to December 31, 1986, but the taxpayer did not receive notice of this
until after December 31. Ibid. The taxpayer then filed its appeal in February 1987. Id. at 262.
The court held that because the actions taken by the assessor, municipality, the county
board, and the Director were in such gross disregard of the added assessment statutory scheme,
the added assessment should be set aside. Id. at 263-264. All the local entities and officials
completely disregarded the statutory time limits, and the Director did not have the statutory
authority to extend the filing deadline for added assessments. Id. at 264.
Lastly, in Venture 17 v. Hasbrouck Heights Borough, 12 N.J. Tax 152 (Tax 1991), the
municipality filed an added assessment on the taxpayer’s property in September 1990. Id. at 153.
The added assessment list was certified on October 10, 1990, and the tax bill was sent to the
taxpayer on October 14, 1990, at the taxpayer’s last known address. Ibid. However, the taxpayer
repeatedly moved its office in 1990; therefore, the taxpayer did not receive the tax bill. Id. at 154.
The taxpayer did inform the assessor of one of the office moves, but the municipality did not
receive that letter. Irrespective, the taxpayer sent the letter after the tax bill had already been sent.
Id. at 154-155. The taxpayer ultimately filed its added assessment appeal with the Bergen County
Board of Taxation on January 25, 1991, which said board dismissed as untimely. Id. at 153.
12
The court noted that the taxpayer was a sophisticated and experienced real estate investor.
Id. at 155. Coupled with the statute’s cautioning that non-receipt does not provide a bar to validity
of added assessments and the frequent office moves, a sophisticated and experience real estate
investor, as prudent taxpayer, would have inquired of the county board about any possible added
assessments. Ibid. “When a sophisticated property owner moves at just the time a tax bill is to
be mailed, this passive approach to discovering whether a tax has been assessed is…unprotected
by the law.” Ibid. The court further commented on the taxpayer’s claims that the assessment should
be voided. The court compared Haddon Hills and American Hydro. Relief was granted in
American Hydro because of the egregious violation of the statutory deadlines, but in Haddon Hills,
the county board did not complete its statutorily required activities until November 1, which is a
later date than when the county board completed everything here in Venture 17, yet the court did
not grant any relief from the filing deadline. Id. at 156-157.
The Tax Court decided all four of these cases before the 1999 amendment to N.J.S.A 54:4-
63.11. The court does not appear to have published any opinions specifically about the issue of
lack of notice and extending the appeal deadline for added assessments following the Legislature’s
amendment. Previously, the statute did not require the tax collector to certify that the bulk mailing
had been completed. In the New Jersey Senate bill text, the senate stated the following regarding
the amendment:
7. The bill amend [sic] three sections of Title 54 to authorize the
county board of taxation and the Tax Court to extend time to appeal
added or omitted assessments to on or before December 1 or 30 days
from mailing of tax bills, whichever is later, and to provide that
added and omitted assessments can be appealed directly to the Tax
Court if the aggregate assessment exceeds $750,000.
[S. 1982 (1997).]
13
Clearly, the legislature wanted the taxpayer to have some kind of notice besides the
publicly available certified added assessment list. Otherwise, the Legislature would not allow for
an extended date of 30 days from mailing to account for situations where the tax bill was delivered
late, nor would they have included language that requires the tax collector to certify to the County
Board when the tax bills for added assessments were mailed.
“On the issue of adequacy of notice, as on other issues raised by a plaintiff to excuse a late
filing and thereby avoid a limitation of the action the burden of proof is on the plaintiff.”
Southway, Peter & Lena v. Wyckoff Twp., 20 N.J. Tax 194, 200 (Tax 2002).
Taxpayers argue that Green’s motion should be denied because they never received notice
of the added assessment until April 25, 2022, through discovery responses from Green. Taxpayers
maintain that equity and due process considerations permit the court to extend the tax appeal filing
deadline promulgated under N.J.S.A. 54:4-63.11.
In New Jersey, a presumption arises that properly addressed, stamped, and posted mail
“was received by the party to whom it was addressed.” SSI Medical Servs. V. HHS, Div. of
Medical Assistance & Health Servs., 146 N.J. 614, 617 (1996); see also Bruce v. James P.
MacLean Firm, 238 N.J. Super. 501, 505 (Law Div. 1989), aff’d o.b., 238 N.J. Super. 408 (App.
Div. 1989); Tower Management Corp. v. Podesta, 226 N.J. Super. 300, 304 n. 3, (App. Div.
1988); Cwiklinski v. Burton, 217 N.J. Super. 506, 509-10 (App. Div. 1987). The following
conditions serve to establish the presumption: (1) that the mailing was properly addressed; (2) that
proper postage was affixed; (3) that the return address was correct; and (4) that the mailing was
deposited in a proper mail receptacle or at the post office. SSI Medical Servs., 146 N.J. at 617.
This presumption may be demonstrated through the submission of evidence “of habit or
routine practice,” but “evidence of office custom requires other corroboration that the custom was
14
followed in a particular instance in order to raise a presumption of mailing and receipt and meet
the preponderance of the evidence standard.” Id. at 622-623. Where “items mailed on a daily
basis are voluminous,” and it is difficult to obtain proof of whether the routine procedure or custom
was followed “on a given day,” credible corroborating proof can create a “reasonable inference
that the custom was followed on the given occasion,” which can “suffice to establish proof of
mailing.” Id. at 624. A court must weigh the credibility of such corroborative evidence to decide
“whether it meets the preponderance of the evidence standard,” and whether it “raises a
presumption of mailing and receipt.” Id. at 624 n.1. Thus, courts will accept a “lower standard of
proof” such as for instance, proof of “bulk processing and mailing.” Davis & Assocs., LLC v.
Stafford Twp., 18 N.J. Tax 621, 627-628 (Tax 2000).
Although few Tax Court decisions discuss lack of notice regarding added assessments
since the 1999 amendment to N.J.S.A. 54:4-63.11, several Tax Court decisions address exceptions
to the filing deadline established by N.J.S.A. 54:3-21, which simultaneously received a
substantially similar amendment as N.J.S.A. 54:4-63.11.
In Centorino v. Tewksbury Twp., 18 N.J. Tax 303 (Tax 1999), due to an error in the
municipality’s mailing system, the taxpayer did not receive notice of an increased property
assessment for 1998 until August 1. The property assessment had increased to $601,900 from the
previous year’s assessment of $492,100. Id. at 307. The taxpayer contacted the tax assessor and
filed an appeal, which the county board rejected as untimely. Id. at 308. The taxpayer
subsequently filed a complaint with the Tax Court challenging the assessment. Ibid. The
municipality contended that it mailed the assessment to the correct address; however, it conceded
that it addressed the notice to the attention of the prior owner. Id. at 307. The taxpayer contended
that she never received notice, nor did she receive anything addressed to the previous owner. Id. at
15
309. The court found that the taxpayer never received the notice of assessment prior to August
1998. Id. at 310. The court held that “[u]nder these unique facts and circumstances, the principles
of due process necessitate the extension of the filing deadline so that the taxpayer is not denied
access to the court and the opportunity for a hearing on her appeal.” Id. at 320.
In City of East Orange v. Livingston Township, 27 N.J. Tax 161 (Tax 2013), the defendant
imposed local property tax assessments on properties known as the East Orange Water Reserve.
During the tax years at issue, notices of assessment were forwarded to the City of East Orange
using two different mailing addresses. Id. at 165. The plaintiff asserted that the assessments were
excessive, erroneous, and unconstitutional, and that the plaintiff never received the notices of
assessment because they were incorrectly addressed. Id. at 175. The defendant maintained that
none of the assessment notices was returned as undeliverable. Id. at 166. The court highlighted
that the deadline to file an appeal with the county board of taxation or Tax Court was the later of
April 1 or 45 days from the date the taxing district completes the bulk mailing. Id. at 168-169.
However, the court noted that “[w]here a taxpayer fails to receive such notice, and based on the
facts of each case, courts have extended the appeal filing deadlines set forth in N.J.S.A. 54:3-21,
not only due to the statutory mandate, but also because lack of notice implicates due process
concerns.” Id. at 169 (citing Centorino, 18 N.J. Tax at 316).
The court highlighted that the defendant’s notices of assessment contained several
deficiencies in the recipient address and, thus, did not necessarily support a conclusion of mail
delivery. Id. at 170. However, the court stated that the plaintiff gained actual knowledge of the
assessments sometime between June 2009 and September 2009, when it received the tax bills
during a meeting with the defendant’s assessor. Ibid. The plaintiff allowed roughly 18 months to
pass after receiving actual notice of the assessments and failed to file appeals challenging the
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assessments on the properties until December 2010. Ibid. Concluding that the court lacked subject
matter jurisdiction over the plaintiff’s complaint under N.J.S.A. 54:3-21, the court observed that
in considering the due process implications of the alleged failure to receive the notices of
assessment, “actual notice is relevant.” Id. at 171 (citing Olde Orchard Village Condo
Apartments, Inc. v. Township of Pequannock, 21 N.J. Tax 275, 282 (Tax 2004)).
In Davis & Assocs. L.L.C. after development approval, one of two lots owned by the
plaintiff suffered an increased assessment of $205,900 to $3,560,000. Id. at 624-625. There was a
clear factual dispute over receipt of the assessment notices. The court found sufficient proof of
mailing by the assessor and that, accordingly, a presumption of receipt had been established. It
further found the evidence presented by the plaintiff insufficient to rebut the presumption. Id. at
632-633. On the assumption that notice was not actually received, the court considered the
plaintiff to be a “sophisticated real estate development company which owns properties and
operates commercial enterprises in a number of municipalities.” Id. at 634. Prudent business
practice, the court concluded, would have dictated inquiry to the assessor in February or March in
the absence of assessment notices. Ibid. In these circumstances, the court found no basis to extend
the filing period beyond April 1 and dismissed the plaintiff’s complaint filed on August 18. Ibid.
In Southway, the taxpayers maintained that they did not receive notice of the increased tax
assessment on their property until they received their tax bill in July; therefore, the taxpayers
argued that they timely filed their petition of appeal with the county board of taxation in August.
Id. at 196. In rejecting the taxpayers’ claim, the court found that a presumption of receipt
attached to the township’s mailing of the notice of assessment. Id. at 199. The court noted that
the taxpayers “had over forty years of experience in banking and is presumably careful and
attentive to financial questions,” but also accepted that the taxpayers honestly never learned of the
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assessment change until July. Ibid. Accordingly, because the taxpayers shouldered the burden of
proving non-delivery of the notice of assessment and failed to rebut that presumption by a
reasonable preponderance of the evidence, the court held that the taxpayers’ complaint must be
dismissed. Id. at 200-201.
In the present matter, there is nothing in the record to confirm when, or if, the tax collector
completed the bulk mailing of the tax bills from the 2021 added assessments. In response to the
court’s questions at oral argument, Green appeared to conclude that since the Tax Assessor
certified to the added assessment list, the tax bills must have been mailed. Green argues that
N.J.S.A. 54:4-63.7 states that “failure of a taxpayer to receive a tax bill” does not invalidate the
tax due or the added assessment; therefore, the lack of notice should have no bearing on the filing
deadline. The court finds that Green’s argument is misguided. Green is conflating two separate
legal concepts: (1) the validity of the added assessment under N.J.S.A. 54:4-63.7; and (2) a
taxpayer’s right to appeal an added assessment under N.J.S.A. 54:4-63.11.
Tax Court opinions prior to the 1999 amendment of N.J.S.A. 54:4-63.11 seem to conflate
the validity of the tax or assessment with the ability to file an appeal. See 18 Washington, 8 N.J.
Tax at 613. However, finding an invalid added assessment is only one possible outcome of a tax
appeal. The Legislature enacted N.J.S.A 54:4-63.7 and N.J.S.A. 54:4-63.11 as separate sections.
Further, the two sections do not reference each other, and N.J.S.A. 54:4-63.7 mentions nothing
about the statutory rights of a taxpayer to file an appeal of an added assessment. It only states that
the actual tax and assessment are still valid regardless of procedural issues, which mirrors the intent
of other statutes. See N.J.S.A. 54:4-58. The court is satisfied that the Legislature did not intend
for deficient notice or procedure to affect the validity of a taxpayer’s tax liability or assessment,
but that the Legislature would intend that deficient notice should affect a taxpayer’s appeal rights.
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As mentioned above, the Legislature clearly intended for the taxpayer to have some amount of
notice with the 1999 amendment so that taxpayers had an opportunity to properly file an appeal.
Due to the lack of evidence in the record concerning the bulk mailing of the tax bills and
the Tax Collector’s certification of the bulk mailing, the court finds that Green has not established
a presumption of receipt of the tax bill by Taxpayers, nor did Taxpayers have actual notice as in
East Orange. Additionally, Taxpayers are not a “sophisticated real estate development company,”
nor does any evidence exist in the record that Taxpayers have the professional experience to
conclude that they are “presumably careful and attentive to financial questions” as in Southway.
The court finds it unreasonable that the average homebuyer would be expected to contact the Tax
Assessor or Tax Collector to inquire about impending added assessments in the middle of closing
on a home, and subsequently moving into it, as one would expect of an experienced real estate
practitioner as in Davis & Assocs., L.L.C. or Venture 17.
B. Actual Notice
Under the facts of these matters, there is no evidence that the Tax Collector mailed notice
of an added assessment to Taxpayers. Here, Taxpayers did not have actual notice of the 2021
added assessment at issue until April 25, 2022.
While Green contends that the second half of N.J.S.A. 54:4-63.7 serves as statutory notice
of the added assessment to Taxpayers, it conspicuously ignores the first half of said statute which
requires “mailing or otherwise delivering the [added assessment] tax bills to the individuals
assessed.”
In support of its argument, Green mistakenly relies on Venture 17 v. Hasbrouck Heights
Borough, where the court held that the taxpayer’s late appeal of an added assessment was untimely
filed because the taxpayer was deemed to be a sophisticated taxpayer. The court observed that “a
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prudent taxpayer would have made inquiry of the assessor, tax collector, or county board as to
whether an added assessment had been made.” Id. at 155. See also Davis & Assocs., L.L.C., 18
N.J. Tax at 634 (finding the company to be “sophisticated taxpayers” because it was a company
that operated within the field of realestate and had “actual knowledge that municipalities were
obligated to send annual notices of assessments.”).
“[T]he relative ‘sophistication’ of a taxpayer is. . .a consideration in the application of
equitable principles to relax the time limits.” City of East Orange 27 N.J. Tax at 171. However,
the facts of Venture 17, and Davis & Assocs., L.L.C. significantly differ from the facts currently
presented. Green provided no evidence to suggest that Taxpayers qualify as “sophisticated
taxpayers” within the meaning of Venture 17 and Davis & Assocs., L.L.C., and the papers
submitted by counsel for Taxpayers specifically refutes such a suggestion.
C. Constructive Notice
Green also argues that Taxpayers had constructive notice of the 2021 added assessment.
Constructive notice is “[n]otice arising by presumption of law from the existence of facts and
circumstances that a party had a duty to take notice of… notice presumed by law to have been
acquired by a person and thus imputed to that person.” Black’s Law Dictionary 1227 (10th ed.
2014).
In support of its position, Green points to the PRC, 2018-2021 municipal Tax Lists, and
the 2021 Added Assessment List which became a public record on or about October 5, 2021,
asserting that these documents contained public information that would have easily notified
Taxpayers of the added assessment on the Subject Property. Once again, Green ignores the
specific requirement of mailing the added assessment bills contained in the first part of N.J.S.A.
54:4-63.7. Clearly, N.J.S.A. 54:4-63.7 does not suggest that adequate notice of added assessments
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is satisfied because Taxpayers should have happened to stumble upon it in some public document.
Conversely, said statute requires a specific act of mailing the added assessment tax bills by the tax
collector “to the individuals assessed.” Ibid. In the court’s view, to support Green’s reasoning
would conflict with the long-standing square corners doctrine which provides that:
Statutory provisions governing substantive standards and
procedures for taxation, including the administrative review
process, are premised on the concept that government will act
scrupulously, correctly, efficiently, and honestly. It is to be assumed
that the municipality will exercise its governmental responsibilities
in the field of taxation conscientiously, in good faith and without
ulterior motives.
[F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 427
(1985)].
Furthermore, while not required by law, “in the interest of good public relations and
transparency, assessors should make every effort to notify taxpayers of any Added . . . Assessments
and the probable tax due as soon as the amount can be estimated.” Handbook For New Jersey
Assessors, § 806.03, p. 582, August 2022. The Tax Assessor’s certification submitted herein
makes no representation that she attempted, or otherwise notified Taxpayers of the added
assessment now in controversy.
Notwithstanding, the facts herein beg inquiry into the relationship between Taxpayers and
their mortgage lender, Rocket Mortgage (or its loan servicer), who paid the added assessment on
the Subject Property on November 3, 2021. 7 Taxpayers assert that Rocket Mortgage made the
7
In his certification dated May 12, 2023, Green’s counsel states that he was advised by the Tax
Collector “that on October 7, 2021, she sent an email to CoreLogic and Lereta that included the
2021 added tax amount due for the subject property.” According to his certification, “CoreLogic
and Lereta are third-party mortgage clearing houses that manage, facilitate, and process real estate
property taxes and payments.” From the attached exhibits in support of Green Counsel’s said
certification, it appears that one Lisa Hardie, Data Acquisition Coordinator, Enterprise Data
Group, in an email dated September 24, 2021, requested the “[c]urrent year file on behalf of
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added assessment payment without their knowledge. The court observes that generally “creditor-
debtor relationships rarely give rise to a fiduciary duty.” United Jersey Bank v. Kensey, 306 N.J.
Super. 540, 552 (1997). There is an assumption that the “relationship between lenders and
borrowers is conducted at arms-length and the parties are each acting in their own interest.” Ibid.
The court is satisfied that there is no fiduciary relationship between Rocket Mortgage (or its loan
servicer) and Taxpayers. Accordingly, absent that special relationship, there can be no
constructive notice to Taxpayers of the added assessment simply because Rocket Mortgage (or its
loan servicer), paid said added assessment. This remains true even if Taxpayers directed that their
tax bills be mailed to Rocket Mortgage (or its loan servicer) pursuant to N.J.S.A. 54:4-64 (b) to
(e), 8 because Green has not established that the 2021 added assessment bills were ever mailed in
accordance with N.J.S.A. 54:4-63.7, and cannot produce the Tax Collector’s certification of bulk
mailing of the 2021 added assessment tax bills as required by N.J.S.A. 54:4-63.11.
D. Due Process
Taxpayers argue that dismissal of the added assessment complaint is inappropriate because
under the principles of due process, notice is an essential component; accordingly, the court must
CoreLogic for the upcoming (4) installment.” There is no specific reference made to the Subject
Property in said email request. In an email dated October 7, 2021, it appears that the Tax Collector
responded to Ms. Hardie’s request indicating “Just processed the ADDED tax files and I have
about 25 and some had bank codes listed.” None of this exchange is certified to by the Tax
Collector herself. Moreover, there is no indication just who CoreLogic is in relation to Taxpayers,
or for that matter, Rocket Mortgage. There’s no suggestion that Taxpayers ever heard of
CoreLogic. Clearly Ms. Hardie’s email indicates that it was CoreLogic that reached out to the Tax
Collector, not the other way around. Another exhibit included with Green Counsel’s certification
(a “screen print from the Tax Collector’s payment program”) shows the added assessment on the
Subject Property was paid November 3, 2021, by check from payer bank Rocket (Mortgage); no
mention of CoreLogic or Lereta.
8
N.J.S.A. 54:4-64 (b) to (e) permits borrowers to direct a tax collector to send their tax bills to
their mortgage lender. It is observed, however, that the same language regarding the tax collector
mailing or delivering added assessment bills to mortgage lenders is not included in N.J.S.A. 54:4-
63.7. That statute requires added assessment bills to be mailed to the “individuals assessed.” Ibid.
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deny Green’s cross-motion and relax the filing deadline.
Our courts have long held that where notice was not received by the taxpayer, due process
prompted this Court to fashion a remedy where notice is not received. See generally City of
Camden, 9 N.J. Tax 331. In Camden, the court relaxed the filing deadline because (1) the property
owner’s tax exemption was revoked by way of omitted assessment, but was never notified of the
omitted assessment, and (2) the prior owner’s name and address was reflected on the added
assessment list. Id. at 343-344.
"[W]here it is established that the taxpayer has…taken reasonable steps to notify the
municipality, then the burden shifts to the taxing authorities to change their records to reflect the
new address…” Berkeley, 213 N.J. Super. at 533. “The taxing authority must then show that it
took reasonable steps to effectuate notice.” Id. at 534.
Courts have held that “[n]otice mailed by a county board of taxation to an address different
in a significant respect from that specified in a written notification from a petitioner does not
(unless received) constitute adequate notice and does not satisfy the requirements of due process.”
Family Realty Co., 16 N.J. Tax at 193. “The requirements of due process have not been met unless
the person…has been given an opportunity to be heard as to the validity and the amount of the
levy…before the excise becomes irrevocably final.” City of Camden, 9 N.J. Tax at 343.
Under the present facts, due process requires this court to relax the filing deadline given
that: (1) Green did not establish that the Tax Collector mailed notice of the 2021 added assessment
to Taxpayers; (2) Green has not established that Taxpayers had, or should have had, constructive
notice of the 2021 added assessment; (3) there can be no presumption of receipt of the notice of
the 2021 added assessment by Taxpayers because the names and address of prior owners, and not
Taxpayers’ names and address, are listed on the 2021 Added Assessment List; and (4) Taxpayers’
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appeal was denied a hearing by the County Board through an administrative dismissal for
untimeliness. Taxpayers did not have adequate notice of the 2021 added assessment to exercise
their right to appeal by the statutory deadline and, therefore, cannot be denied the opportunity for
a hearing on their appeal before the Tax Court.
E. Change of Track Assignment
“The Tax Court Management Office shall advise the parties of the track assignment.”
R. 8:6-5. “An action shall ordinarily be assigned to the small claims track if it is indicated on the
case information statement that the matter is within the small claims jurisdiction pursuant to R.
8:11.” R. 8:6-4(e). “The small claims division will hear all local property tax cases in which the
property at issue is a class 2 property (1-4 family residence). Local property tax cases in the small
claims division shall be assigned to the small claims track.” R. 8:11(2). “An action may be
reassigned to a track other than that specified in the case management notice on application of a
party or on the court’s own motion.” R. 8:6-7.
In local property tax cases, R. 8:6-1 limits small claims discovery:
[D]iscovery shall be limited to the property record card for the
subject premises, inspection of the subject premises, a closing
statement if there has been a sale of the subject premises within three
(3) years of the assessing date, the costs of improvements within
three years (3) years of the assessing date, income, expense and lease
information for income-producing property, and information
relating to a claim of damage to the property occurring between
October 1 of the pretax year and January 1 off the tax year pursuant
to N.J.S.A. 54:4-35.1.
[R. 8:6-1(a)(4).]
However, pursuant to R. 8:6-1(4), “the court in its discretion may grant additional
discovery for good cause shown.”
Taxpayers argue that traditional discovery is of greater importance in the context of their
spot assessment claims, as the facts and circumstances surrounding the increase in the assessment
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of the Subject Property are in Green’s control. Absent supplemental discovery, Taxpayers are left
to prove their case solely by circumstantial evidence. Consequently, they may be unable to
effectively assert their claims against Green.
Green argues that Taxpayers (1) fail to demonstrate good cause for changing track
assignment, and (2) that the legal basis is based upon the unfounded assumption of spot
assessment.
The court finds that a change in the track designation of these matters is necessary for
Taxpayers to pursue their claims against Green. The small claims track to which these matters
have been assigned, allows for only limited discovery. That discovery may not be sufficient for
Taxpayers to pursue their allegations of spot assessment and the basis for the added assessment.
Pursuant to R. 8:6-7, the court has the authority to change the track assignment from the small
claims track to the standard track. The court is satisfied that Taxpayers have shown good cause to
change the track assignment of these matters and expand the scope of discovery to prove their
allegations against Green.
V. CONCLUSION
For above-stated reasons Green’s cross-motion to dismiss the added assessment
complaint (Docket No. 008224-2022 only) is DENIED; Taxpayers’ motion to change the track
assignment of both matters is GRANTED changing the track designation from the small claims
track to the standard track. The Tax Court’s judgment and Order consistent with this opinion will
be uploaded to eCourts.
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