Christopher Mathew Johnson v. Township of Egg Harbor

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS

______________________________
:
CHRISTOPHER MATTHEW JOHNSON, : TAX COURT OF NEW JERSEY
: DOCKET NO: 000249-2017
Plaintiff, :
:
vs. :
:
TOWNSHIP OF EGG HARBOR, :
:
Defendant. :
______________________________:

Decided: March 9, 2018

Christopher Johnson, Plaintiff.

Thomas G. Smith, attorney for Defendant.

CIMINO, J.T.C.

This is taxpayer Christopher Matthew Johnson’s Motion for

Reconsideration. Taxpayer sought exemption from property taxes

for his residence on the basis he is an eligible disabled veteran.

The basis for the dismissal is set forth in the court’s opinion of

November 16, 2017. For the reasons set forth more fully below,

taxpayer’s Motion for Reconsideration is denied.

Taxpayer entered active duty with the United States Marine

Corps on September 8, 1997. His initial duty was stateside in

South Carolina, North Carolina, and California. He was thereafter

stationed in Okinawa, Japan, from 2001 to September, 2002. His

-1-
primary specialty was ground radio intermediate repair, which

required him to repair various types of communications equipment

for military vehicles and fixed locations. For a time, he became

a Sergeant of the Guard for Camp Courtney’s Anti-Terrorism Response

Force in Okinawa, Japan. As the Sergeant of the Guard, he had the

responsibility of posting sentries with live ammunition at

strategic points on the base to ensure against any sort of

terrorist attack. In addition, at one point he had to secure a

mailroom due to a mail bomb threat. He completed his service on

September 7, 2002 receiving an honorable discharge and completing

exactly five years of active duty.

During his service, the taxpayer received a number of medals

and commendations. The most relevant for the purposes of this

decision are the Global War on Terrorism Service Medal and the

commendation presented to the Third Marine Expeditionary Force and

Marine Corps Bases, Japan.

Correspondence presented to this court from the Department of

Veterans Affairs indicates that the taxpayer is “considered to be

totally and permanently disabled due solely to service connected

disabilities.”

On July 15, 2016, the taxpayer made an application for a tax

exemption on his dwelling house as a result of his disability

status. By letter dated August 2, 2016, the exemption was denied

since he did not serve 14 days in an actual combat zone.

-2-
Thereafter, he appealed to the Atlantic County Board of Taxation

which upheld the decision of the assessor. On January 20, 2017,

the taxpayer filed a complaint with this court challenging the

decision of the Board of Taxation. Taxpayer then filed a motion

for summary judgment claiming he was entitled to the exemption.

The Township cross-moved for summary judgment seeking a decision

upholding the decision of the County Tax Board.

This court determined that the taxpayer met the temporal

requirements for the exemption as set by the statute, but did not

meet the non-temporal requirements then imposed by the

legislature. As a result, the matter was dismissed.

The taxpayer moves for reconsideration. The rule allowing

reconsideration is particularly useful when an opinion or order

deals with un-litigated or un-argued matters. Calcaterra v.

Calcaterra, 206 N.J. Super. 398, 403-04 (App. Div. 1986). The

rule is applicable only when the court’s decision is based on

plainly incorrect reasoning or when the court fails to consider

evidence or there was good reason for the court to reconsider new

information. Cummings v. Bahr, 295 N.J. Super 374, 384 (App. Div.

1996).

At the time of the court’s denial of the exemption,

legislation was pending to amend the provisions dealing with

veteran’s tax exemptions. The court noted that in the event the

legislation was enacted into law in the current term, the court,

-3-
upon application to the taxpayer, would certainly reconsider

whether this constitutes a basis for relief pursuant to R. 4:50-

1(f). See Castiglioni v. Castiglioni, 192 N.J. Super. 594, 597-

98 (Ch. Div. 1984)(change in federal law respecting military

pension distributability undoing prior Supreme Court decision held

to constitute a basis for subparagraph (f) relief.); See also

Edgerton v. Edgerton, 203 N.J. Super. 160, 170 (App. Div. 1985).

In light of the Legislature’s recent enactment, the court will

consider taxpayer’s Motion for Reconsideration to at least address

the retroactivity of the newly enacted Statute.

In the recent past, this court has dealt with disabled

veterans property tax exemptions in Wellington v. Township of

Hillsborough, 27 N.J. Tax 37 (Tax 2012); Fisher, 29 N.J. Tax 91

(Tax 2016), aff’d, 450 N.J. Super. 610 (App. Div. 2017); and

Galloway Township v. Duncan, 29 N.J. Tax 520 (Tax 2016). In

addition, the Appellate Division weighed in with its affirmance of

this court’s decision in Fisher.

The State Constitution authorized the Legislature to grant

veteran’s property tax exemptions. See N.J. Const., art. VIII, §

1, ¶ 3. Fisher, 450 N.J. Super. at 614. Resultantly, the

Legislature provided a total exemption for veterans honorably

discharged who served in active service at a time of war and have

been declared disabled as a result of their service. Entitlement

to the exemption from real property taxes requires a party to prove

-4-
(1) he or she is a citizen and resident of this State, (2) now or

hereafter honorably discharged or released under honorable

circumstances, (3) from active service in a time of war, (4) in

any branch or unit of the armed forces of the United States, (5)

who has been or shall be declared by the United States Veterans

Administration or its successor to have a service connected

disability declared by the United States Veterans Administration

or its successor to be a total or 100% permanent disability

sustained through enemy action, or accident, or resulting from

disease contracted while in such active service. Id. at 615,

(citing Wellington, supra, 27 N.J. Tax at 48).

Like Wellington, Fisher and Duncan which previously came

before this court, the only question is whether taxpayer satisfies

the third element, which is whether his service was in active

service in time of war. The court must “remain mindful taxation

is the rule and a claimant bears the burden of proving an

exemption.” Fisher, 450 N.J. Super. at 615, (citing New Jersey

Carpenters Apprentice Training and Educ. Fund v. Borough of

Kenilworth, 147 N.J. 171, 177 (1996), cert. den., 520 U.S. 1241

(1997)). The phrase “active service in time of war” as used, is

a defined term, which means the “periods of time set forth in

[N.J.S.A. 54:4-8.10].” N.J.S.A. 54:4-3.33a.

Earlier Legislatures only imposed a temporal requirement.

Only service during the time of the conflict, not a specific type

-5-
of duty was necessary. See, e.g., L. 1952, c. 231, § 1 (Korean

Conflict); L. 1972, c. 166, § 4 (Vietnam Conflict). Generally,

this broadness continued until amendment in 1991. 1

In 1991, the Legislature departed from imposing just a

temporal requirement for conflicts that were to be added to the

list of eligible conflicts. Instead, the Legislature started

tightening the standard for entitlement to the exemption by

introducing non-temporal requirements. Thus, when the Legislature

amended the statute in 1991 to include service in Lebanon (1982) 2,

Grenada (1983), Panama (1989) and Desert Storm/Shield (1990), the

Legislature tightened the standard for entitlement in those

conflicts to include not only a temporal limitation, but also a

geographic limitation as well. L. 1991, c. 390, § 7. 3 In other

words, more than military service during the time of conflict was

necessary. Instead, the Legislature mandated that the service

occur in the corresponding geographic region of the conflict.

Moreover, the Legislature also imposed a 14-day length of service

in the specified geographic region. Id. Thus, 1991 marked the

1 The requirements for United States military service in Russia
from April 6, 1917 to April 1, 1920 seemingly contained a
geographic requirement. L. 1969, c. 286, § 1.

2 Dates in parenthesis are the inception dates of the respective
conflicts.

3The amendments in 1991 and thereafter did not change the standards
set for conflicts already included by the Legislature.

-6-
beginning of a series of Legislative amendments which narrowed the

number of veterans eligible for the benefit.

In 1998, the Legislature further tightened and narrowed the

class of eligible veterans by requiring service in “direct support”

of the military operation. The 1998 amendment included Operation

Restore Hope (Somalia, 1992) and Operation Joint Guard/Endeavor

(Bosnia, 1995). L. 1998, c. 49, § 2. For both of these military

operations, the Legislature chose once again to set forth

geographic limitations, as well as the 14-day length of service.

Notably, the “direct support” provision was only specified for

Operation Joint Endeavor/Guard (Bosnia 1995), but not Operation

Restore Hope (Somalia 1992). 4

Three subsequent legislative amendments in 2003, 2005 and

2017 also contained a geographic requirement as well as a direct

support requirement. These amendments added Operation

Northern/Southern Watch (Iraq no fly zone, 1992), Operation Iraqi

Freedom (2003), Operation Enduring Freedom (2001) and World Trade

Center Rescue and Recovery to the list. L. 2003, c. 197, § 5; L.

2005, c. 64, § 5; L. 2017, c. 134, § 1. For a veteran’s service to

qualify, the Legislature required for all four of these operations

4When the statute was amended in 2001 to include the much earlier
1958 Lebanon Crisis, the requirement of direct support was not
included. L. 2001, c. 127, § 6. It is unclear whether the
requirement was absent because eligible conflicts immediately
subsequent to the 1958 Lebanon crisis did not require “direct
support” (i.e., Vietnam, Lebanon (1982), Grenada, Panama).
-7-
either service in a specific geographic area or in the general

theater of operation. The Legislature also required the service

member provide direct support and set forth a minimum 14-day length

of service.

Thus, over time with successive military actions, the

Legislature chose to tighten the qualifying requirements for the

exemption. However, on January 9, 2018, the Governor signed into

law Chapter 367, enacting substantial changes to the Disabled

Veteran’s Property Tax deduction. L. 2017, c. 367. Chapter 367

amended N.J.S.A. 54:4-3.33a to create a subsection (a) to make

clear that the temporal periods as set forth for the various

conflicts as delineated by N.J.S.A. 54:4-8.10 still apply.

However, Chapter 367 also added subsection (b) to N.J.S.A. 54:4-

3.33a addressing the non-temporal requirements:

“active service in time of war” shall mean
active service during a time period
specified in the definition of “active
service time of war” in [N.J.S.A. 54:4-8.10]
but shall not require minimum length of
continuous or aggregate service in any
foreign country, on board any ship or naval
vessel, or in any foreign airspace, and
shall also not require that the service-
connected disability suffered by a veteran
shall have occurred during continuous or
aggregate service in any foreign country, on
board any ship or naval vessel, or in any
foreign airspace.

[L. 2017, c. 367, § 2(b).]

-8-
Finally, the Law provides that the Act shall take effect

immediately.

As stated, the Law was signed into effect on January 9, 2018

and is effective going forward from that date. While the law

seemingly broadens the eligibility for the exemption, the

Legislature made a clear and unmistakable decision not to have the

law apply retroactively to prior tax years. It certainly was

within the Legislature’s prerogative to make the law retroactive

if it so chose, but it did not. As a result, the court is

constrained to deny taxpayer’s Motion for Reconsideration since

the statute is not retroactive.

The statute at issue here requires service “in a theater of

operation and in direct support of that operation” for Operation

Enduring Freedom. N.J.S.A. 54:4-8.10(a). Other operations that

mention direct support use similar language. Id. Whether in

eliminating the geographic “theater of operation” requirement

through Chapter 367, the Legislature intended to effectively

eliminate the direct support requirement awaits a determination

from this court only when the issue presents itself. Likewise,

whether the amended statute also effectively abrogates the need

for direct support as discussed by this court in Wellington, Fisher

and Duncan, and the Appellate Division in Fisher, remains for

another day in which the issue squarely presents itself. The issue

is not now before the court.

-9-
However, this decision certainly does not bar the taxpayer

from making an application for the 2018 tax year to his local

municipality for a determination of eligibility.

For the foregoing reasons, taxpayer’s Motion for

Reconsideration is denied.

-10-