Raritan Brunswick, L.P. v. City of New Brunswick

NOT FOR PUBLICATION WITHOUT APPROVAL OF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

TAX COURT OF NEW JERSEY

Mala Sundar R.J. Hughes Justice Complex
JUDGE P.O. Box 975
25 Market Street
Trenton, New Jersey 08625
Telephone (609) 815-2922
TeleFax: (609) 376-3018
taxcourttrenton2@judiciary.state.nj.us
May 30, 2018
Paul Tannenbaum, Esq.
Zipp Tannenbaum Caccavelli, L.L.C.
280 Raritan Center Parkway
Edison, New Jersey 08837

Joseph Palombit, Esq.
Emil Philibosian, Esq.
Hoagland Longo et al.
40 Paterson Street
New Brunswick, New Jersey 08901

Re: Raritan Brunswick, L.P., et al. v City of New Brunswick
Block 703, Lot 16.09; Block 703.05, Lot 1; Block 703.06 Lot 1
Docket No. 007570-2017
Dear Counsel:

This opinion decides defendant’s motion to dismiss the above captioned complaint. On or

about October 18, 2017, defendant (“City”) filed a motion urging the court to dismiss plaintiffs’

complaint on grounds that plaintiffs failed to respond to the City’s assessor’s requests for income

and expense (“I&E”) information for plaintiffs’ property (“Subject”), which consists of three

parcels, pursuant to N.J.S.A. 54:4-34 (commonly known as “Chapter 91”). After several

adjournment requests, plaintiffs opposed the City’s Chapter 91 motion on December 29, 2017,

arguing that the request was ambiguous, and that a Chapter 91 motion is an affirmative defense,

which if not pled affirmatively in an answer, is deemed to have been waived.

*
On January 19, 2018, oral argument for this matter were held, along with oral arguments

on several other identical Chapter 91 motions, filed by the City against several other plaintiffs’

complaints, all such plaintiffs being represented by the same counsel herein. The oral arguments

were consolidated because of the identity of the defendant (the City), the identity of plaintiffs’

counsel, and the identical reasons for the filing of the Chapter 91 motion. Additionally, barring

two oppositions where the facts were different (one motion involved a Chapter 91 request sent to

a prior owner, and plaintiffs therein claimed it was unknown whether the prior owner received the

request; the other opposition pled lack of receipt of the Chapter 91 request), in all other cases the

opposition was on the same grounds, namely that the Chapter 91 request was ambiguous, and that

Chapter 91, as an affirmative defense, was not pled as such by the City since it never filed an

answer. During this hearing plaintiffs’ counsel was specifically asked by the court whether there

was anything specific or peculiar in the facts of this case, which would cause the court to hear the

case separately from the other matters being heard. Plaintiffs’ counsel informed the court that

there were not specific or peculiar facts concerning this case. Therefore, the court heard all the

related matters at the same time for judicial efficiency.

On January 25, 2018, plaintiff’s counsel moved under R. 1:6-3, for leave of court to file a

sur-reply brief and a certification in support thereof on grounds, due to “miscommunication,” it

forgot to include in its opposition, the fact that plaintiffs did respond to the Chapter 91 request.

This was despite plaintiffs’ counsel’s affirmation to the court, on January 19, 2018, that there was

nothing factually unique or different about this matter from the other cases, all of which had simply

argued that the Chapter 91 request was ambiguous, and the City failed to raise it as an affirmative

defense. The City duly opposed this endeavor.

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The court heard the motion on April 27, 2018. Plaintiff’s counsel claimed that a

“miscommunication” caused the new fact to come to light three days after the court had already

held oral arguments, viz., that plaintiff had timely mailed a response. For reasons stated on the

bench, the court permitted plaintiffs’ late “discovered” alleged fact of having responded to the

Chapter 91 request, solely in the interest of justice and fairness, and because plaintiffs’ counsel

moved promptly after this alleged discovery. 1 The court then proceeded to hold a hearing.

Testimony was provided by plaintiffs’ Vice President of Accounting (“VP”) and receptionist,

along with testimony by the City’s tax assessor.

For the reasons following, the court finds credible plaintiffs’ proffered proof of having

mailed a response to the Chapter 91 request, therefore, balancing the assessor’s equally credible

testimony of failure to receive a response with the harsh consequence of the loss of ability to appeal

the assessment, the court denies the City’s motion to dismiss the complaint.

FACTS

The facts are based on the certification of the City’s tax assessor and plaintiffs’ VP, and

the testimony provided by the same, along with testimony provided by plaintiffs’ receptionist. On

or about June 1, 2016, the City’s assessor mailed, via certified mail, return receipt requested, three

requests seeking I&E information of/for the above-captioned properties pursuant to Chapter 91.

The requests were mailed to 1 Chester Circle, New Brunswick, New Jersey 08901, which was the

Subject’s owner as of June 1, 2016. The mailings included a copy of the statute. The signed return

receipt, for all three parcels, showed an acknowledgement that it was received on or about June 3,

2016.

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The court also imposed sanctions in terms of plaintiffs having to pay costs incurred by the City
in opposing the sur-reply brief.

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The VP works out of the plaintiffs’ Parsippany office, and has been responsible for

responding to Chapter 91 requests for the Subject since 2014. 2 Sometime in early June 2016, the

Subject’s property owner’s New Brunswick office forwarded the three Chapter 91 requests to the

VP at the Parsippany office in a monthly package that contain billing invoices, which needed to

be processed. On Sunday, July 17, 2016, the VP stated that she worked on, and completed the

three Chapter 91 requests. She noted that she typically does not work on Sundays, however, she

did on this particular Sunday, because she knew that the Chapter 91 requests needed to be mailed

out on Monday, the last day to respond to the Chapter 91 requests. 3 She was unsure of whether

she worked on the three requests from home or from the Parsippany office. She cannot print her

work from at her home, although she could use the company’s network to work from home.

The VP testified as to how she collects the information needed to respond to a Chapter 91

request. First, she downloads the relevant property’s reports from the RealPage: Property

Management Software (“RealPage”), removes all budget numbers, and saves the results as an

Excel worksheet. Next, she saves the Excel document as a PDF and prints the PDF out to mail to

the City’s assessor. She also electronically saves the PDF in a folder on the company’s network.

As evidence that she worked on the three requests on July 17, 2016, a screenshot was provided of

the network file where the relevant Chapter 91 documents were kept. The screenshot showed three

files (“Raritan Brunswick P&L 12.2015,” “P&L 2015,” and “P&L 2014 & 2015 Side by Side

Comparison”) that were last modified on July 17, 2016, which the VP stated that she used to

provide responses to the Chapter 91 requests.

2
The VP stated that she had been responsible for Chapter 91 requests on other properties owned
by the Subject’s property owner since 2012.
3
The 45-day response period ended on July 16, 2016, however, this was a Saturday, thus, the
responses to the Chapter 91 requests were due on Monday, July 18, 2016.

4
The VP could not recall whether she mailed the Chapter 91 responses personally or whether

she gave it to the receptionist to meter and mail it. The receptionist also could not recall receiving

the responses from the VP, nor could she recall if she or the VP metered and mailed the responses.

However, the VP testified and certified that it was her customary practice to “put the Chapter 91

response[s] in an envelope and personally address[] it to the Tax Assessor.” Further, as part of

her customary practice, she stated that by regular mail “[e]ither I or our office’s receptionist would

have used our office’s postage meter to weigh the envelope and apply the proper postage, and

deposit the envelope in the United States Post Office mailbox located” in the building. The

receptionist also testified that it was the customary practice and routine to have any documents,

which needed to be mailed, be metered and mailed promptly on the same day she meter-stamped

the mail. Neither the VP, nor the receptionist, were aware of any mail being returned to the

Parsippany office for improper postage or being undeliverable.

The City’s assessor testified as to the details on how his office processes Chapter 91

responses received from taxpayers. He stated that every morning he or his receptionist retrieves

the mail from the mailroom. Once he has collected all the mail, he separates the mail into different

categories. Any mailings categorized as Chapter 91 responses are stamped and the block and lot

number is written in the margin. His assistant will then cross the property off a printed list of

outstanding Chapter 91 requests, and the responses are filed in folders by property class and block

and lot, in block and lot order. After the assessor receives most of the Chapter 91 responses, he

enters a code in the MOD-IV database, which enables this database to display that the Chapter 91

response was received.

The assessor stated that he did not receive any responses for the Chapter 91 requests, which

were sent to the Subject’s property owner. Although he had received responses almost every year

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for the Subject, there was no indication that there were responses for tax year 2017. He alleged

that he made an exhaustive search for the Chapter 91 responses, but was unable to locate the

Chapter 91 responses.

FINDINGS

N.J.S.A. 54:4-34 requires a property owner to “render a full and true account of” the

property owner’s “name and real property and the income therefrom,” if the property is “income-

producing.” Failure or refusal to respond within 45 days of the Chapter 91 request allows the

assessor to reasonably determine the property’s “full and fair value” based upon any information

he or she has. Ibid. A non-response also bars the property owner from appealing that assessment.

Ibid. The harsh sanction of a taxpayer losing its right to appeal its assessment, pursuant to Chapter

91, “requires a strict construction of the statute.” Great Adventure, Inc. v. Township of Jackson,

10 N.J. Tax 230, 233 (Tax 1988). A dismissal of a taxpayer’s appeal is “only appropriate” under

Chapter 91 when the taxpayer “has ‘failed or refused to respond’ to the assessor’s Chapter 91

request.” Paramus Assocs., LLP/Home Depot, USA, Inc. v. Borough of Paramus, 27 N.J. Tax

274, 276 (Tax 2013) (citing N.J.S.A. 54:4-34). Further, the severe sanction pursuant to Chapter

91 has caused the courts to be reluctant in granting a Chapter 91 where there is an absence

“sufficient evidence of non-compliance by the taxpayer.” Id. at 283 (citation omitted).

New Jersey cases have acknowledged that if mail was “addressed, stamped, and posted,”

then there is a presumption that the mail was received by the party whom it was addressed to. SSI

Med. Servs. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614, 621 (1996). In order

to invoke this presumption certain conditions must be shown: “(1) that the mailing was correctly

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.” Ibid. (citing Lamantia

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v. Township of Howell, 12 N.J. Tax 347, 352 (Tax 1992)). Proof that these conditions were

followed can be “in the form of evidence of habit or routine practice with corroboration that the

practice was followed in a particular instance.” J & J Realty Co. v. Township of Wayne, 22 N.J.

Tax 157, 162 (Tax 2005) (internal quotations and citation omitted). However, in certain cases,

where a large business or organization is involved, and that business handles a copious amount of

mail on a daily basis, “it may not be possible for individuals engaged in mailing activities to recall

actual mailing of a document or whether the custom or practice of mailing was followed on a given

day.” SSI Med. Servs., 146 N.J. at 624. Therefore, the court is charged with the duty to “evaluate

the nature and worth of the corroborative evidence offered to determine whether it meets the

preponderance of the evidence standard and raises a presumption of mailing and receipt.” Id. at

624 n.1.

In the case at hand, plaintiffs’ VP had been responsible for responding to Chapter 91

requests since 2012, and has been responsible for responding to the Subject’s Chapter 91 requests

since 2014. Although she does not specifically recall mailing the responses or giving the responses

to the receptionist to meter and mail, she did provide evidence that she prepared the Chapter 91

responses on a Sunday, and testified that she would not typically work on a Sunday, unless the

document she was working on had to be sent out on Monday. Further, plaintiffs’ provided a

screenshot of the documents that would have been used to respond to the Chapter 91 requests, and

this screenshot showed that those documents were last worked on Sunday, July 17, 2016. Given

the fact that the VP has been responsible for responding to Chapter 91 requests for over five years,

no Chapter 91 responses came back as undeliverable, and the fact that she worked on the responses

on a Sunday to get the responses mailed out by Monday, the court finds that the VP’s claim that

she sent out the responses credible. The City also agreed that plaintiffs had, in the past, responded

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to Chapter 91 requests (the assessor stating that he was shocked at the non-response by plaintiffs),

and did not contend lack of credibility of testimony proffered by plaintiffs on grounds the prior

responses were never last-minute as the instant one was.

“The presumption of receipt derived from proof of mailing is rebuttable and may be

overcome by evidence that the notice was never in fact received.” SSI Med. Servs., 146 N.J. at

625 (citation and internal quotation marks omitted). Here, the tax assessor testified that he had not

received the responses from the Subject’s property owner, and made an exhaustive search of his

office for the responses.

The court finds both parties’ proffered proofs and testimony as to mailing the responses

and its non-receipt, equally credible. In such situations, the court must balance the “impact” on

the plaintiffs of granting the motion “against the impact on defendant and the assessing process of

the denial of the motion.” J & J Realty Co., 22 N.J. Tax at 164. The impact on the City and the

assessor of having the motion denied, such that the assessor would not have the most recent I&E

information, “is of a far lesser magnitude” than the motion being granted and the plaintiffs losing

the right to appeal the assessment. Id. at 165. Moreover, in cases similar to the case at hand, the

courts have stated that

when a taxpayer, in good faith, responds by regular mail to a Chapter
91 request, and, through no fault or negligence of the taxpayer, the
assessor does not receive the response, the severe limitation on
appeal rights contained in Chapter 91 should not be imposed. That
limitation is appropriate only when a taxpayer has, in the words of
the statute, ‘failed or refused to respond’ to the assessor's request.

[Ibid. (citing N.J.S.A. 54:4-34).]

Under the circumstances of this case, the court finds plaintiffs neither failed, nor refused, to

respond to the City’s Chapter 91 requests. Therefore, and absent testimony or evidence

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contradicting the VP and receptionist’s testimony, the court finds that the plaintiffs timely

responded to the City’s Chapter 91 requests.

CONCLUSION

For the aforementioned reasons, the court denies the City’s Chapter 91 motion. Due to this

denial, the court does not opine on plaintiffs’ argument that the Chapter 91 motion is an affirmative

defense, which if not pled in a timely filed answer to a complaint, is deemed waived.

An Order will be entered denying the City’s motion. Due to the recent revision of Tax

Court assignments by the Chief Justice of the New Jersey Supreme Court dated January 22, 2018

(retroactive to January 16, 2018), the matter, which was retained by the undersigned for rendering

a decision, will be returned to Hon. Mary Siobhan Brennan, J.T.C., for further scheduling.

Very truly yours,

Mala Sundar, J.T.C.

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