Opinion
Docket No. 000003-2013
05-03-2013
Re: Burgundy Realty, L.L.C. v. Township of Piscataway Block 4601, Lot 9
BY ELECTRONIC MAIL Alexander J. Buckley, Esq. Nagel Rice, L.L.P. Bridget M. Riepl, Esq. Hoagland, Longo, Moran, Dunst & Doukas, L.L.P.
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
Mala Sundar
JUDGE
BY ELECTRONIC MAIL
Alexander J. Buckley, Esq.
Nagel Rice, L.L.P.
Bridget M. Riepl, Esq.
Hoagland, Longo, Moran, Dunst & Doukas, L.L.P.
Dear Counsel:
This is the court's opinion with respect to defendant's motion to dismiss the above-captioned complaint for plaintiff's failure to respond to income and expense information requests pursuant to N.J.S.A. 54:4-34, more commonly known as a "Chapter 91" request. Plaintiff opposed the motion claiming that receipt of the Chapter 91 request by the taxpayer's managing member was never effectuated because the return receipt card bears a signature that Plaintiff does not recognize. The court finds that because defendant fully complied with the statutory requirements in making its Chapter 91 request, and further because it is undisputed that the Chapter 91 request was delivered to proper address, defendant's motion to dismiss is granted subject to Plaintiff's right to a reasonableness hearing. FACTS
The facts are found from the pleadings, documents attached to the same, and certifications provided by the Township's assessor and Plaintiff's Managing Member, all filed in connection with the instant motion.
Plaintiff is the owner of property located at 100 Springfield Avenue in Defendant, Township of Piscataway ("Township"), which is designated as Block 4601, Lot 9 ("Subject").
By letter dated July 16, 2012, the Township's assessor sought the income and expense information pursuant to Chapter 91, from Plaintiff. The information was requested for the period January 1, 2011 to December 31, 2011 for purposes of determining the assessment of the Subject for tax year 2013.
The Chapter 91 request was addressed to "Burgundy Realty, LLC c/o M&R Marking Sys, 5 Cypress Way, Colts Neck, NJ 07722," the property owner's address of record, which is also the home of Marc Sculler, the Managing Member of Plaintiff. The mailing included: 1) a cover letter explaining the Chapter 91 request and consequences of a failure to respond, 2) a copy of N.J.S.A. 54:4-34, and 3) a form "Annual Statement of Income and Expenses for Income Producing Properties." All parts of the mailing included an identical pre-printed label indicating the Subject's location, block and lot number, and owner's address of record. So did the certified mailing receipt Form 3800, which shows the mailing date as August 1, 2012.
Note that all certified mail, with or without a requested return receipt, must use a "barcoded green Form 3800" which is divided into two parts: (i) the label part containing the barcode and item number, which is "placed above the delivery address and to the right of the return address" on a letter envelope; and (ii) the certified mail receipt portion, which is detached and returned to the mailer (after being accepted by the post office, i.e., after the requisite fee and postage is paid and the post office date stamps the envelope). See Domestic Mail Manual, (May 2009) (updated July 5, 2011) §503.3.3 (available at www.usps.com ). The receipt portion must contain the "name and complete address of the person or firm to whom the mail is addressed." Id. at §503.3.5.
The Chapter 91 request was delivered on August 6, 2012. The return receipt, or "green card," shows the delivery address as the same pre-printed label indicating the Subject's location, block and lot number, and owner's address of record. The signature box contains an illegible signature. The electronic delivery confirmation from the U.S. Postal Service ("USPS") shows that the mail was delivered on August 6, 2012 at 11:46 a.m.
The Township's assessor did not receive a response within 45 days of the Chapter 91 request.
Plaintiff's Managing Member certified that on August 6, 2012, he was not at home, but was at work, as was his wife. He further certified that the signature on the green card is not his, that he does not recognize the signature, and that he has no "recollection of ever signing the" Chapter 91 request on August 6, 2012. He further averred that he conferred with his wife and four children (who reside in the same home) and none of them recognize the signature, and none of his children recall signing for or "being served" with the Chapter 91 request. He stated that had he received the request, he would have "complied" with the same.
The Managing Member attached a Chapter 91 request, filled out by him "since then," to his certification.
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Plaintiff maintains that for these reasons, it never received the Chapter 91 request, and therefore, the Township has failed to comply with the fair notice requirements of N.J.S.A. 54:4-34. It requests that the Township be required to "re-serve" its request so that Plaintiff can properly respond.
The Township argues that Plaintiff's response refuting the signature on the green card does not overcome the undisputed fact that a complete Chapter 91 request packet was timely mailed and delivered to Plaintiff at the correct address. Therefore, the Township has fully complied with N.J.S.A. 54:4-34. ANALYSIS
N.J.S.A. 54:4-34 requires an owner of income producing property to "render a full and true account" of income from such property in response to a "written request of the assessor, made by certified mail." The assessor must also include a copy of the statute with the written request. Ibid. Failure or refusal to provide a response, or provision of a "false or fraudulent" response, within 45 days of the Chapter 91 request, bars the property owner from challenging the property's assessment. Ibid.
The purpose of N.J.S.A. 54:4-34 is "to provide assessors with additional authority to secure as much information as possible to aid in ascertaining the fair market value of income-producing property." Westmark Partners v. Township of West Deptford, 12 N.J. Tax 591, 596 (Tax 1992). A taxpayer "cannot just sit by and do nothing until the assessment is finalized . . . and thereafter seek to appeal the assessment." Tower Center Assocs. v. Township of East Brunswick, 286 N.J. Super. 433, 438 (App. Div. 1996).
Because the consequences of failing to respond to a Chapter 91 request are severe, an assessor must strictly comply with the statute's requirements in making the request. J&J Realty Co. v. Township of Wayne, 22 N.J. Tax 157, 163 (Tax 2005). Thus, the request should "(1) . . . include a copy of the text of the statute; (2) . . . be sent by certified mail to the owner of the property; and (3) . . . spell out the consequences of failure to comply with the assessor's demand, namely a bar to the taxpayer's taking of an appeal from its assessment." Southland Corp. v. Township of Dover, 21 N.J. Tax 573, 578 (Tax 2004). In addition, the request must use "clear and unequivocal language," and the "benefit" of any "doubt" as to the "information sought" by the assessor, the benefit of that doubt must favor the property owner given the consequences of non-compliance." Cassini v. City of Orange, 16 N.J. Tax 438, 446-47, 453 (Tax 1997) (citations and quotations omitted).
Here, it is undisputed, and the court finds, that the Township's Chapter 91 request strictly complied with N.J.S.A. 54:4-34. It is also undisputed that the request was addressed and delivered to the correct address. The only issue is whether Plaintiff's alleged lack of receipt, although a return receipt card was signed, defeats the Township's motion, and preserves Plaintiff's right to appeal the Subject's 2013 assessment.
In drafting N.J.S.A. 54:4-34, our Legislature did not require the assessor to use the optional service of a return receipt. The statute only requires that the Chapter 91 request be sent by certified mail. "Since N.J.S.A. 54:4-34 does not require certified mail return receipt requested, a defective return receipt alone . . . does not necessarily mean that the delivery is defective." Green v. East Orange, 21 N.J. Tax 324, 334 (Tax 2004). Instead, a return receipt is merely an additional piece of evidence to show proof of delivery. Thus, Plaintiff's contention that the "critical requirement" is for a Chapter 91 request to "be sent via Certified mail, return receipt requested" is incorrect.
Plaintiff relies heavily upon Green, supra, in support of its argument that an illegible signature on the return receipt card "did not yield a presumption of receipt by the intended recipient." In that case, the signature box on the return receipt card was only marked with an "X." There was nothing additional provided to refute delivery such as the USPS delivery information (available electronically). In the absence of this evidence, the court found that "X" mark was "too inconclusive" but noted that it could be placed either because the taxpayer "regularly" signed in that manner or because he did so to "deliberately . . . thwart delivery and service" or the "X" could be someone else's signature or the "mail carrier's mark" of where the signature should be placed. Id. at 335-36.
However, and although the movant in Green, supra, had relied "solely upon an inconclusive return receipt [which was] open to varying interpretations," id. at 334, this was not the court's primary basis for denying defendant's motion to dismiss the complaint. Rather, the court found "inconsistent and confusing" mailing labels, and incorrect or absent property identification numbers and designation, to be problematic, resulting in lack of "fair notice" to the taxpayer in "clear and unequivocal language." Id. at 331-32. Thus, Plaintiff's reliance on Green for the proposition that the absence or non-recognition of a signature on the return receipt card is fatal to a Chapter 91 motion to dismiss is misplaced in light of the court's specific finding that the statute does not require certified mailing with a return receipt.
Moreover, Green also found that in cases where a taxpayer alleges lack of receipt due to an inconclusive return receipt card, an electronic delivery confirmation by the USPS "should be able to establish actual receipt of certified mail." Id. at 334. If such delivery is accomplished in the manner required by 58 Domestic Mail Manual § D042.1.7.b (2003), the "delivery record establishes actual receipt of the" item mailed. Green, supra, 21 N.J. Tax at 333. In this connection, the recipient need not be the addressee. Thus, "an addressee's mail may be delivered to an employee, to a competent member of the addressee's family, or to any person authorized to represent the addressee." Id. at 333-34 (quoting 58 Domestic Mail Manual, § D042.2.1) (internal quotations omitted). See also Hammond v. Paterson, 145 N.J. Super. 452, 456 (App. Div. 1976) ("[c]ertified mail assures definite record proof of mailing" and "[d]elivery and certified mail connote positive, not presumptive, proof"), certif. denied, 74 N.J. 247 (1977); Cardinale v. Mecca, 175 N.J. Super. 8, 11 (App. Div.) ("assuming a correct address" was used on the certified mail item, it would have "reached" the addressee, with or without return receipt requested), certif. denied, 84 N.J. 425 (1980).
Here, the document trail irrefutably shows that the Chapter 91 request was properly addressed, mailed and delivered. The mail was delivered to the Managing Member's residence. There were persons at the residence on the delivery date who Plaintiff knew (his four children). Plaintiff's certification that his four children could not recollect signing for a letter is not only hearsay and uncorroborated, but is insufficient to overcome the proof of delivery of the certified mail since their inability to recollect does not mean that the article was not delivered to the address. Non-delivery could be assumed if the green card was returned to the Township with a notation from the post office in this regard (such as for instance, "attempted not known" or "unclaimed" or "refused" or "moved" or "unable to forward" or "insufficient address"). This did not occur here. That the Managing Member of Plaintiff did not sign the return receipt is also of no moment since the mail carrier is not required to ascertain that the piece of mail be delivered only to the addressee.
The court is satisfied that under the facts of this matter, it would be too burdensome to require the Township ensure (and prove, or rebut Taxpayer's allegation that) the signature on the return receipt card is one that Plaintiff knows or recognizes. A municipality relies upon the USPS for delivery and cannot monitor or direct the USPS to obtain legible signatures and identity of the person signing the return receipt. The failure of the post office to obtain a legible signature followed by the printed version of the signature should not be attributed to the defendant. Nor can the municipality be asked to ascertain that after it receives the return receipt card (if a municipality chooses this option when using certified mail), it take additional steps to ensure that the green card was actually seen by the taxpayer, and then further ascertain that the taxpayer actually received the Chapter 91 request. See New Plan Realty Trust v. Township of Brick, 23 N.J. Tax 225, 233 (Tax 2006) ("[p]laintiffs cannot place greater restrictions on the assessors than those already imposed by the courts without an explicit statement by the Legislature").
In addition, were this court to grant Plaintiff's request that the Chapter 91 request be "re-serve[d]," the assessor's initial valuation of the Subject "would be at best an interim one, of use only until the taxpayer complies with the request for income and expense information." Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 7-8 (1988). The Township's assessor, months after the request was properly delivered, would then have to re-value the property, "a tremendous waste of valuable time and resources . . . . [a] result [which] runs contrary to [] the purpose of the statute, i.e., '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 8. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the above-captioned complaint for failure to respond to a Chapter 91 income and expense request pursuant to N.J.S.A. 54:4-34 is granted. Plaintiff has the right to request a reasonableness hearing pursuant to Ocean Pines, supra, 112 N.J. at 15-16.
An Order reflecting this memorandum opinion will be entered by the court and accompany this opinion.
Very truly yours,
Mala Sundar, J.T.C.