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Cam Gar v. Verona Township

004838-2011 (N.J. Tax Ct. 2011) (Unpublished)

TAXATION; CHAPTER 91 — Just because a tax assessor does not receive a Chapter 91 response, does not mean that the taxpayer did not send it; therefore, a taxpayer has the right to present credible evidence that it responded to the Chapter 91 request even though the assessor may not have received it.

A taxpayer challenging the assessment on its real property for tax year 2011. The municipality moved to dismiss pursuant to Chapter 91, arguing that the taxpayer had failed to respond to a properly served request from the tax assessor for information regarding income and expenses associated with the property. In opposing the municipality’s motion to dismiss, the taxpayer argued that it had mailed the assessor a timely response, but the municipality denied receipt. At a plenary hearing, the taxpayer provided testimony of a bookkeeper for its parent company who testified how she has handled Chapter 91 requests, not only for the year in question, but for prior years as well. The bookkeeper’s responsibilities included responding to the Chapter 91 requests sent for the numerous properties managed by her employer. The bookkeeper, in detail, went through the procedures she implemented to handle Chapter 91 requests and produced a copy of the Chapter 91 response which had her hand written note “mailed w/rent roll 9/24/10.” Although she admitted that she did not have a specific recollection of completing or mailing the form, “she testified that she would have followed all of the above procedures as to the handling of the Chapter 91 request.” The Court found this testimony credible and was satisfied that in 2010, as in prior years, the bookkeeper followed the established and routine practices and procedures for responding to Chapter 91 requests.

The municipality argued that ruling in favor of the taxpayer would be tantamount to allowing “the check is in the mail” argument to be a satisfactory reply whenever the tax assessor does not receive a Chapter 91 response. In response, the court noted that this very concern was addressed in J & J Realty v. Township of Wayne, 22 N.J. Tax 157, 162 (Tax 2005). While a taxpayer can falsely claim to have sent the response and a tax assessor can falsely claim that she or he never received the response; relying on the prior holding in the reported case, the Court found that it “is well situated to determine credibility and truthfulness and can do so in the context of Chapter 91 motions as effectively as [courts] do in other contexts.” Viewing the totality of the evidence, the Court found that the taxpayer neither failed, nor refused, to respond to the request for information sent by the municipality’s assessor. The municipality’s motion to dismiss the taxpayer’s complaint was denied.


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