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Mako Realty & Construction v. Brick Township

A-6470-97T5 (N.J. Super. App. Div. 1999) (Unpublished)

TAXATION; APPEALS—Regardless of whether the Tax Court dismisses an appeal through judgment or through an order of dismissal, the appeal is dismissed.

A taxpayer filed a timely complaint for review of a real property assessment by the Tax Court. At the time of filing, it had not complied with the statutory requirements that “no less than the total of all taxes and municipal charges due, up to and including the first quarter of the taxes and municipal charges assessed against him for the current tax year. ” must have been paid. Although payment of taxes due is not a prerequisite to the Tax Court’s exercise of jurisdiction, an appeal must be dismissed if the municipality moves for dismissal and the taxes have not been paid at the time the motion is to be heard. The municipality made such a motion and the taxpayer did not appear on the return date. The judge granted the motion and entered an “order and judgment” in accordance with an oral ruling, thereby dismissing the tax appeal, with prejudice, for failure to pay taxes. The Tax Court’s order was the one submitted by the municipality’s attorney with changes made by the Tax Court. The taxpayer appealed to the Appellate Division, arguing that “[t]he trial judge committed error by sua sponte modifying the proposed form of order.” Before the appeal was heard, the lower court filed a letter opinion, amplifying the reasons for its decision. The Appellate Division affirmed the Tax Court’s rulings and had no difficulty with the lower court conforming the proposed order to reflect that it was an “Order and Judgment.” It held that entry of a judgment rather than an order of dismissal caused no detriment to the taxpayer, because once the appeal had been dismissed, it could not have been refiled, whatever the form of the dismissal, because the deadline had passed.


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