“I Don’t Remember Sending It but Probably Did”…Works to Defeat Chapter 91 Dismissal Motion

by: Anthony F. Della Pelle
12 Jun 2018

We recently summarized Gamma-Upsilon Alumni Ass’n of Kappa Sigma, Inc. v. City of New Brunswick, a case in which the plaintiff’s tax appeal was dismissed due to its failure to respond to the assessor’s request for income and expense Information, in accordance with N.J.S.A. 54:4-34 (commonly known as “Chapter 91”). Chapter 91 provides that a property owner has forty-five days to answer the written request from a tax assessor for income and expense information. If not timely answered, the assessor may file a motion to dismiss the appeal brought by the plaintiff. In this latest Chapter 91 case, however, Raritan Brunswick, L.P., et al. v. City of New Brunswick, the City of New Brunswick was denied its attempt to dismiss the plaintiff’s appeal. The assessor for the City of New Brunswick moved to dismiss Raritan Brunswick’s tax appeal on the ground that the plaintiff (Raritan Brunswick) did not answer their Chapter 91 request.

What makes the Raritan Brunswick case unusual is that three days after the oral argument on the motion to dismiss was heard, the plaintiff’s Chapter 91 information was found on its Vice President of Accounting’s computer. While the physical response and mailing receipt were not found, the VP of Accounting’s office desktop indicated that the request had been written, and last edited on the day before the deadline to respond.  A week after the original oral argument, and three days after the information had been found, the plaintiff’s attorney advised the court that due to a “miscommunication” the response was, in fact, completed, even though it had earlier been assumed that the response was not submitted. New Jersey Tax Court Judge Sundar, for fairness purposes, held that there should be a follow-up hearing. That hearing took place on April 27, 2018. There, Raritan Brunswick’s Vice President of Accounting testified that she had, in the permitted time, answered the assessor’s request. The Vice President of Accounting and her assistant did not have a specific recollection that it had been mailed out. However, the Vice President of Accounting testified that since the response, been prepared, plaintiff’s normal practice and procedure would have meant the response, once prepared, would have been mailed. The assessor did not have any documentation that his office had received it. After considering the evidence, Judge Sundar ruled that Raritan Brunswick, while not having proof of mailing, did attempt to answer the request by the assessor’s office. Since an attempt had been made, the judge ruled that the plaintiff had met its Chapter 91 delegation to respond. Therefore, the city’s Chapter 91 motion was denied.

One of the interesting aspects of this decision is that the court used a “balancing test” to find in the plaintiff’s favor. Faced with conflicting testimony from plaintiff, who testified that the response was mailed out, and from defendant, the assessor who testified he had no record of receiving it, the court ruled that on balance the harsh result of dismissing plaintiff’s appeal and denying plaintiff its day in court outweighed the assessor’s claim that it never received the income and expense information.

A copy of the Tax Court’s decision in Raritan Brunswick V. City of New Brunswick is available here.

The author acknowledges the assistance of William Olson, a summer intern at McKirdy, Riskin, Olson & DellaPelle, in preparing this article.  Mr. Olson is a recent graduate of Catholic University and a member of the Class of 2021 at Rutgers Law School.

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