FULTON PARTNERS, LLC VS. CITY OF NEW BRUNSWICK (TAX COURT OF NEW JERSEY) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4886-17T2
FULTON PARTNERS, LLC,
Plaintiff-Appellant,
v.
CITY OF NEW BRUNSWICK,
Defendant-Respondent.
______________________________
Argued September 23, 2019 – Decided October 11, 2019
Before Judges Sumners, Geiger and Natali.
On appeal from the Tax Court of New Jersey, Docket
No. 003351-2017.
Joseph G. Buro argued the cause for appellant (Zipp &
Tannenbaum, LLC, attorneys; Joseph G. Buro, of
counsel and on the briefs).
Richard J. Mirra argued the cause for respondent
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Emil H. Philibosian, of counsel; Richard J.
Mirra, on the brief).
PER CURIAM
Plaintiff Fulton Partners, LLC filed a tax appeal disputing a 2017 tax
assessment of income-producing property (the Property) located in the City of New
Brunswick. New Brunswick moved to dismiss the complaint under Rule 8:7(e) due
to the then property owner's failure to respond to a request for income and expense
information pursuant to N.J.S.A. 54:4-34 (Chapter 91). Fulton Partners appeals from
a Tax Court order granting the motion in part and judgment dismissing the tax appeal
for lack of prosecution. We affirm.
I.
Fulton purchased the Property from Fulton Gardens Associates, LLP for
$3,500,000 on August 17, 2016. The deed conveying the Property to Fulton Partners
is dated August 17, 2016, but for reasons not explained in the record was not
recorded until December 21, 2016. There is no evidence in the record that a notice
of settlement was recorded in the county recording office by either the seller, or the
mortgagee pursuant to N.J.S.A. 46:26A-11.
Prior to the sale of the property, on June 1, 2016, the tax assessor for New
Brunswick sent Fulton Gardens an Annual Request for Income & Expense
Information (the Request) for the Property. The request was sent by certified mail
to 2003 Route 130, Suite F, North Brunswick, New Jersey 08902, the correct mailing
address of Fulton Gardens. Fulton Gardens was a tenant in the office building
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located at that street address. The certified mail was signed for and accepted on June
6, 2016, by Mary Jo Mieszkuc, who works for another company in the same office.
Mieszkuc was not an employee of Fulton Gardens.
Mieszkuc signed for Fulton Gardens' certified mail "[a]s a courtesy to other
tenants, in their absence," and "[a]s was normal practice, the mail was placed on the
filing cabinet at the front of [her] office for retrieval by the tenant." Lawrence
Bruskin, a partner at Fulton Gardens, handled such requests but does "not recall
receiving the income request."
The Request was sent according to Chapter 91 to provide income information
utilized by the tax assessor to determine the assessed value of income-producing
property. A property owner has forty-five days to respond or the assessor will value
the property with information available to the assessor. If no response is made and
the property is income-producing then the property owner loses the right to appeal
that year's assessment. The forty-five day response period ended on July 21, 2016,
some twenty-seven days before Fulton Partners purchased the Property.
Fulton Gardens made no response to the Request. The assessor valued the
Property at $4,468,300.00 for the 2017 tax year. Fulton Partners filed a tax appeal
complaint disputing the assessment. New Brunswick moved to dismiss the
complaint pursuant to Chapter 91 because the property owner, Fulton Gardens, had
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failed to respond to the Request. Fulton Partners opposed the motion on the
following grounds: (1) the Request was sent to the prior owner of the Property, and
discovery was needed to determine if the prior owner received the Request and
responded to it; (2) discovery was needed to explore the reevaluation company's
possible involvement in the Chapter 91 process since the New Brunswick underwent
a district-wide reevaluation in 2016 for the 2017 tax year; and (3) discovery was
needed to explore whether the Request was only a pretext aimed at dismissal of tax
appeal complaints.
The court focused on whether "the prior owner’s alleged failure to respond to
the Chapter 91 request should . . . be construed against" Fulton Partners. It noted
consistent Tax Court "precedent holds that if the predecessor did not respond to a
Chapter 91 request, then the successor owner’s complaints can be dismissed."
Following that established precedent, the court reasoned:
[S]ince the Chapter 91 request was sent to the prior owner,
two months prior to the sale of the [Property], and six
months prior to the recording of that sale (since a recorded
deed usually puts an assessor on notice of new ownership).
At the time the deed was recorded, the 45-day period had
obviously expired. At this point, i.e., in December of
2016, re-sending another request to plaintiff as the current
owner would be of no use since the assessments need to
be finalized by January 10, of the current tax year.
N.J.S.A. 54:4-35. It is plaintiff’s responsibility, as the
purchaser, to ensure not only clean title, but also the status
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of assessments (example, added assessment, pro-rated tax
payments, sewer payments), which envisages an inquiry
into any correspondence from the assessor, including a
Chapter 91 request. . . . [A]s noted in [Yeshivat v.
Borough of Paramus, 26 N.J. Tax 335, 347 (Tax 2012)],
the failure of the successor owner to exercise due
diligence, and instead seek to impose “upon assessors an
additional requirement to investigate the sale of properties
and resend requests to the purchasers,” is asking this court
to impose a duty upon the assessor which is not required
by the plain language of N.J.S.A. 54:4-34.
The Tax Court stayed the motion for Fulton Partners to determine if the
Property was income-producing and whether the prior owner received and
responded to the Request. Fulton Partners was directed to file any certifications or
affidavits by March 2, 2018. The court stated that following submission of further
supporting and opposing papers, the case would be scheduled for a plenary hearing,
if required.
On April 25, 2018, the Tax Court issued an order and letter opinion granting
New Brunswick's motion in part. The court determined the assessor complied in all
respects with N.J.S.A. 54:4-34 by sending the Request and a copy of the statute to
the Property's owner of record by certified mail in June 2016. This placed the burden
upon the Fulton Gardens to respond in a timely manner.
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Accordingly, the Tax Court granted New Brunswick's motion to dismiss in
part, subject to a reasonableness hearing. 1 As part of its ruling, the court addressed
whether Fulton Gardens received the Request. Bruskin certified he did not receive
a Chapter 91 request in 2016. New Brunswick submitted Mieszkuc's certification
that stated she commonly accepted certified mail sent to other tenants in the office
building and left the Chapter 91 request in a common area "on the filing cabinet at
the front of the office." The parties did not want to pursue a hearing to have Bruskin
or Mieszkuc provide live testimony because neither contested their credibility.
The Tax Court found that the certified mail was sent to the proper address of
Fulton Gardens but was not delivered "specifically" to Suite F. However, it
determined:
Due to [Fulton Partner's] refusal to provide testimonial
evidence, wherein the court has the opportunity to seek
clarifications in addition to observing the witnesses’
demeanor and candor, thus, their credibility, the court
cannot, based on the certifications alone, conclude that the
Chapter 91 request was not delivered to the prior owner.
1
A “reasonableness hearing” examines “(1) the reasonableness of the
underlying data used by the assessor, and (2) the reasonableness of the
methodology used by the assessor in arriving at the valuation,” but does not
allow a taxpayer to introduce income and expense information. Davanne Realty
v. Edison Twp., 408 N.J. Super. 16, 21 (App. Div. 2009) (quoting Ocean Pines,
Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 11 (1988)).
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The Tax Court concluded “plaintiff failed to prove non-delivery of the statutorily
compliant, properly addressed, and mailed Chapter 91 request.” Fulton Partners
elected not to proceed with the reasonableness hearing. As a result, the Tax Court
entered judgment dismissing the complaint for lack of prosecution because Fulton
Partners "waiv[ed] its right to challenge the reasonableness of the assessment." This
appeal followed.
Fulton Partners argues: (1) Chapter 91 is not intended to preclude an innocent
purchaser from appealing an assessment if the income request is sent to the prior
owner of the property; and (2) the prior owner's failure to respond to the Chapter 91
request does not run with the land.
II.
Our standard of review is well-settled. We defer to the special expertise of
the Tax Court. Estate of Taylor v. Dir., Div. of Taxation, 422 N.J. Super. 336,
341 (App. Div. 2011); Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super.
37, 46 (App. Div. 1990). The findings of Tax Court judges "will not be disturbed
unless they are plainly arbitrary or there is a lack of substantial evidence to
support them." Glenpointe Assocs. 241 N.J. Super. at 46 (citations omitted).
However, "[s]tatutory interpretation involves the examination of legal issues and
is, therefore, a question of law subject to de novo review.” Saccone v. Bd. of
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7
Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (citations
omitted).
III.
Chapter 91 was initially enacted in 1918. The Supreme Court has
thoroughly examined its legislative history. Lucent Techs., Inc. v. Twp. of
Berkeley Heights, 201 N.J. 237, 245-47 (2010). As noted by the Court:
It was not until the statute's most recent
amendment, in 1979, that the Legislature added the
language that is the focus of this appeal. The 1979
amendment added both the forty-five-day time for a
taxpayer's response and the limitation on the taxpayer's
right to appeal the assessor's valuation of the property
if the owner failed to timely respond or rendered false
or fraudulent information. See L. 1979, c. 91, § 1.
[Id. at 246.]
The current version provides in pertinent part:
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
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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 . . . .
[N.J.S.A. 54:4-34.]
In addition to the statutory requirements, the Court "adopted Rule 8:7(e) to
serve as the mechanism through which the municipality effectuates the relief that the
statute affords." Lucent Techs., 201 N.J. at 247.
Chapter 91 was enacted to fulfill the State's constitutional mandate to assess
and tax real property at "the same standard of value" and "the general tax rate of the
taxing district." N.J. Const. art. VIII, § 1, ¶ 1(a); see also McMahon v. City of
Newark, 195 N.J. 526, 541 (2008). "Real property taxes are assessed at the local
level on October 1 of each year" and must be completed by January 10 of the
following year. Davanne Realty v. Edison Twp., 408 N.J. Super. 16, 20 (App. Div.
2009) (citing N.J.S.A. 40A:9-146; N.J.S.A. 54:4-23; McMahon, 195 N.J. at 541).
Real-property owners must respond to specified requests made by the tax
assessor within forty-five days. N.J.S.A. 54:4-34. An assessor can value the
property based on the information available if the taxpayer “fail[s] or refuse[s]” to
do so. Ibid. If so, the assessor must “reasonably determine . . . the full and fair
value” of the property. Ibid.
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"No appeal shall be heard from the assessor's valuation" if the property is
income-producing and the owner does not respond. Ibid.; accord Ocean Pines, 112
N.J. at 11; H.J. Bailey Co. v. Neptune Twp., 399 N.J. Super. 381, 383 (App. Div.
2008). The appeal-dismissal sanction is limited to precluding “appeals asserting
claims for revaluation based upon the economic data withheld by the taxpayer.”
Ocean Pines, 112 N.J. at 7 (quoting Ocean Pines, Ltd. v. Borough of Point Pleasant,
213 N.J. Super. 351, 354 (App. Div. 1986)). The sanction is meant “to assist the
assessor in the first instance, to make the assessment and thereby . . . to avoid
unnecessary expense, time and effort in litigation.” Ibid. (quoting Terrace View
Gardens v. Twp. of Dover, 5 N.J. Tax 469, 474-75 (Tax 1982), aff'd o.b., 5 N.J. Tax
475 (App. Div. 1983)).
If a property owner does not timely respond to a Chapter 91 request, their tax
appeal complaint is subject to dismissal. R. 8:7(e). See also Yeshivat v. Borough
of Paramus, 26 N.J. Tax 335, 342 (Tax 2012); Terrace Gardens, 5 N.J. Tax at 474-
75. "In such a case, the only remaining relief available to plaintiff on the tax appeal
complaint is to request that the court determine the reasonableness of the data and
method used by the assessor." Yeshivat, 26 N.J. Tax at 342 (citing Ocean Pines,
112 N.J. [at 11]). This is referred to as a "reasonableness hearing" where the property
owner loses "the opportunity to rely on information that should have been provided
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within the statutory time-frame." Davanne Realty, 408 N.J. Super. at 21. The
taxpayer cannot avoid the appeal dismissal sanction by submitting the requested
income information after the forty-five-day window closes. Ocean Pines, 112 N.J.
at 7. In so ruling, the Court noted:
If the economic data are to be of any use in the valuation
process, they must be submitted in timely fashion to the
assessor, and not to a tribunal on a subsequent appeal. .
. . By barring the use of those data on a subsequent
appeal, the statute “encourage[s] compliance” with a
proper request for that information.
[Id. at 7-8 (alteration in original) (citation omitted).]
IV.
The record demonstrates Fulton Gardens was the owner of the Property
when the assessor mailed the Request on June 1, 2016. The Request was sent
by certified mail to the correct address, signed for by a receptionist, and received
on June 6, 2016. The forty-five-day response window expired on July 21, 2016.
Fulton Gardens did not respond to the Request.
Fulton Partners argues Fulton Gardens did not actually receive the
Request. The Tax Court determined it could not decide whether Fulton Gardens
actually received the Request on the conflicting certifications alone. The court
scheduled a plenary hearing to hear testimony of Bruskin and Mieszkuc. Fulton
Partners' attorney advised the court that neither party contested the credibility
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of Bruskin or Mieszkuc and consented to the court deciding the issue on the
papers. The Tax Court initially refused the request to decide the issue on the
papers, "since it had to assess the credibility of the affiants," and directed the
parties to appear for the hearing with their witnesses. In a subsequent telephonic
hearing, the parties advised that neither party wanted to pursue a hearing. Fulton
Partners "was unwilling to provide" Bruskin's testimony, even though Bruskin
was available to testify.
The Tax Court noted that it would be inappropriate to decide this contested
issue without "the opportunity to seek clarifications in addition to observing the
witnesses' demeanor and candor, thus, their credibility." The court concluded
that because of Fulton Partners' decision not to present testimonial evidence, it
could not, "based on the certifications alone, conclude that the Chapter 91 request
was not delivered to the prior owner. Indeed, [Fulton Partners'] decision not to
provide testimony at the plenary hearing allows [the] court to draw a negative
inference that the Chapter 91 request was delivered to, and received by, the prior
owner."
The Tax Court further found Mieszkuc's certification "raises an inference
of delivery." The Tax Court noted Mieszkuc stated in her certification that it
was normal practice for her to accept and sign for the certified mail of other
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tenants in their absence, and place the mail on the filing cabinet at the front of
her office for retrieval by those tenants.
The Tax Court concluded it was permitted "to conclude that a properly
addressed piece of certified mail, return receipt requested, is delivered, and is
deemed to be received by the addressee even if the recipient is not the
addressee," citing Green v. East Orange, 21 N.J. Tax 324, 334 (Tax 2004);
Hammond v. Paterson, 145 N.J. Super. 452, 456 (App. Div. 1976); Cardinale v.
Mecca, 175 N.J. Super. 8, 11 (App. Div. 1980); and Szczesny v. Vasquez, 71
N.J. Super. 347, 354 (App. Div. 1962).
Fulton Partners elected not to proceed with the plenary hearing regarding
service of the Request. It did not contest Mieszkuc's credibility. On this record,
it can hardly complain the Tax Court erred by finding Fulton Gardens received
the Request that was delivered to the proper address, signed for by Mieszkuc,
and left for pickup by Fulton Gardens in accordance with normal practice.
Moreover, Fulton Partners did not purchase the property until August 17, 2016 .
It does not claim Fulton Gardens or the mortgagee recorded a notice of
settlement pursuant to N.J.S.A. 46:26A-11.2
2
A notice of settlement may be recorded to give notice to any person who claims
an interest in or lien on the property described in the notice of the intended
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Fulton Partners also argues the Tax Court erred by holding the prior
owner's failure to respond to the Request runs with the land, thereby binding the
purchaser. We disagree.
Beginning with Carriage Four Associates v Teaneck Township., 13 N.J.
Tax 172 (Tax 1993), the Tax Court has consistently held the failure to respond
to a Chapter 91 request runs with the land. In Carriage Four, the court held a
court-appointed receiver was bound by the owner's failure to respond to the
Chapter 91 request. Id. at 179.
The following year, the Tax Court decided ADP, which involved
essentially identical facts to those presented in this case. There, the municipality
sent a Chapter 91 request to the owner of income-producing property on
September 1, 1993. 14 N.J. Tax at 375. No response was made to the request.
Id. at 376. The property was then purchased by a subsequent owner on
December 1, 1993. Id. at 375. The subsequent owner challenged the Chapter
conveyance or mortgaging of the property. N.J.S.A. 46:26A-11. The notice of
settlement is effective for sixty days and may be extended for an additional sixty
days. N.J.S.A. 46:26A-11(d). Any person acquiring an interest in or lien on the
property within that time period "shall be deemed to have acquired the interest
or lien with knowledge of the anticipated settlement and shall be subject to the
estate or interest created by the deed or mortgage described in the notice of
settlement provided the deed or mortgage is recorded within the time that the
notice is effective." N.J.S.A. 46:26A-11(f).
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91's constitutionality. Id. at 377. The Tax Court held that "[i]f the requirements
of due process have been satisfied as to a prior property owner, then, with
respect to local property tax, due process is satisfied as to a successor in title."
Ibid. The court further held "when the property was transferred three months
after the assessor's request of the prior owner, it was the obligation of the
purchaser to make inquiry of the assessment status if it intended to protect i ts
right to contest the 1994 assessment." Id. at 378. The court explained:
Property taxes are not a personal obligation of the
owner but are a lien on the property. It is the obligation
of a purchaser to ascertain the facts concerning the
property tax and the property tax assessment on the
property that it proposes to purchase and to protect
itself in its agreement with the seller as to any rights
that it may wish to assert with respect to the property
tax.
[Id. at 378-79.]
In Yeshivat, the municipality sent a Chapter 91 request to the prior owner
of income-producing property on October 1, 2010. 26 N.J. Tax at 339. No
response was made to this request. Id. at 340. The property was conveyed to
the subsequent owner on October 7, 2010, and the deed was recorded and
received by the assessor on November 29, 2010. Ibid. The new owner appealed
the assessment, arguing "it was under no obligation to respond or ensure that a
response was made." Ibid. The new owner "urge[d] th[e] court to impose an
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obligation upon the assessor to investigate all property transfers and then re -
send to each subsequent owner another proper Chapter 91 request." Id. at 345.
The court disagreed, holding "[t]he failure of [the prior owner] to respond to the
request is a defect that runs with the land and thus bars plaintiff's tax appeal.
Moreover, plaintiff retains the right to request a reasonableness hearing.
Thereby, dismissal of plaintiff's tax appeal is consonant with notions of due
process." Id. at 347. The tax appeal complaint was dismissed subject to a
reasonableness hearing. Id. at 348.
The court also commented that "[t]he additional burden plaintiff proposes
would run counter to the purpose of the Chapter 91 mechanism; that being 'to
assist the assessor in the first instance, to make the assessment and thereby . . .
to avoid unnecessary expense, time and effort in litigation.'" Id. at 347 (quoting
Ocean Pines, 112 N.J. at 7).
Most recently, the Tax Court addressed this issue in 975 Holdings, LLC
v. City of Egg Harbor, 30 N.J. Tax 124 (Tax 2017). There, the previous owner
filed a Chapter 11 bankruptcy and retained its status as debtor-in-possession. Id.
at 126. The previous owner did not respond to a Chapter 91 request served
during the course of the bankruptcy proceedings. Ibid.
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In September 2015, the subsequent owner entered into a contract to
purchase the property. The sale was approved by Bankruptcy Court the
following month and closed in November 2015. Ibid. The subsequent owner
then challenged the assessment. Id. at 127. The Tax Court held that a debtor-
in-possession's failure to respond to a Chapter 91 request "runs with the land."
Id. at 130 (quoting ADP, 14 N.J. Tax at 378). Accordingly, the subsequent
owner was "saddled with the failure" of their predecessor's non-response. Ibid.
The Tax Court rejected the argument that a bankruptcy sale extinguished a
previous Chapter 91 request, concluding the purchaser "either knew, or should
have known, the status of the property taxes including the amount of taxes and
Chapter 91 compliance status." Id. at 131. The court held the purchaser was
obliged "to protect itself in its agreement with the seller as to any rights that it
may wish to assert with respect to the property tax." Id. at 32 (quoting ADP, 14
N.J. Tax at 378-79).
We concur with the holdings in Carriage Four, ADP, Yeshivat, and 975
Holdings. The duty imposed on Fulton Gardens to respond to the Request runs
with the land. Fulton Gardens did not respond to the Request. The statutory
time period to respond expired before Fulton Partners purchased the property.
There is no evidence in the record that the assessor had actual or constructive
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notice of the sale of the property prior to sending the Request or during the forty-
five-day response period.
Notably, a notice of settlement was not recorded. The deed conveying the
property to Fulton Partners was not recorded until December 21, 2016.
Consequently, the assessor did not receive an abstract of the recorded deed and
the name of the grantee from the county clerk until sometime thereafter.3 New
Brunswick only had until January 10, 2017 to finalize the assessment for the
upcoming year. John Hancock Mut. Life Ins. v. Twp. of Wayne, 13 N.J. Tax 417,
422 (Tax 1993) (citing N.J.S.A. 54:35-1). Taking mailing time into account, this
left far too little time to request income information from Fulton Partners, receive
their response, and analyze the income data as part of a reevaluation process.
We conclude the assessor had no duty to notify Fulton Partners of the
previous Chapter 91 request, or to allow it to submit the income information
beyond the forty-five-day period. While this may at first glance seem harsh,
Fulton Partners was not left without a remedy. As recognized by the Tax Court,
it still had the right to proceed to a reasonableness hearing to determine the
3
N.J.S.A. 54:4-31 requires the county clerk or registrar of deeds to mail an
abstract of the deed, together with the address of the grantee, within one week
after the deed is recorded.
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reasonableness of the underlying data and methodology used by the assessor.
Ocean Pines, 112 N.J. at 11.
Moreover, Fulton Partners had ways to protect itself against Fulton
Gardens not responding to the Request. The contract of sale could have required
the seller to timely respond to any Chapter 91 request and give notice thereof to
Fulton Partners, with contractual penalties if it did not, including responsibility
for any resulting tax increase. Fulton Partners also could have inquired of the
assessor whether any Chapter 91 requests were served or contemplated, and
whether the property was being reevaluated.
Finally, we decline to impose a potentially burdensome, if not
impracticable, obligation on the assessor to investigate property transfers in the
municipality leading up to, or during, the forty-five-day response period and
then re-send Chapter 91 requests to each new owner, where the assessor has not
received notice of the transfer pursuant to N.J.S.A. 54:4-31. The 1979
amendment to N.J.S.A. 54:4-34 reflects no such legislative intent. It is not our
role to go beyond the plain meaning of the statute. Had the Legislature intended
to impose this burden on the assessor it would have expressed that intent in the
language of the statute. It did not.
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Fulton Partners remaining arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
V.
In summary, the property is income-producing. The Request was served
on the property owner and went unanswered. The duty to respond to the Request
runs with the land. Therefore, the appeal sanction imposed by N.J.S.A. 54:4-34
applied. Nevertheless, Fulton Partners still had the right to a reasonableness
hearing. It was also afforded the opportunity to pursue a plenary hearing regarding
Fulton Gardens' receipt of the Request but elected not to proceed with either hearing.
The Tax Court concluded Fulton Partners waived its right to challenge the
reasonableness of the assessment, and dismissed the tax appeal complaint. The
record fully supports these findings and conclusions. We discern no error by the
Tax Court.
Affirmed.
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