The question before the court is whether a tax assessor’s request for income and expense information pursuant to N.J.S.A. 54:4-34, commonly known as Chapter 91, (see L. 1979, c. 91), must include an explanation of the consequences of a taxpayer’s failure to respond to the request in a timely fashion. For the reasons stated more fully below, the court concludes that the assessor need not explain the penalty for failing to comply with the request because Chapter 91 requires the assessor to include with the request a copy of the statute, which plainly sets forth the consequences of failing to comply with its provisions. In reaching this conclusion the court adopts the holding in Pisani v. Township of Wayne, 13 N.J.Tax 412 (Tax 1993), to the same effect and rejects the dictum set forth in Southland, Corp. v. Township of Dover, 21 N.J.Tax 573, 578 (Tax 2004), and repeated in Thirty Mazel, LLC v. City of East Orange, 24 N.J.Tax 357, 362 (Tax 2009), that a Chapter 91 request for income and expense information “must 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.”
I. Findings of Fact
The facts are not in dispute. Plaintiff James-Dale Enterprises, Inc. owns real property in defendant Township of Berkeley Heights. The property is designated by the township as block 501, lot 1 and is commonly known as 735 Springfield Avenue. The property is income producing.
On or about June 1, 2009, the municipal tax assessor sent to plaintiff by certified mail, return receipt requested, a written request for income and expense information regarding the property to assist in setting the assessment for tax year 2010. The request identified the property by block and lot number, as well as its commonly known address. The request included a copy of N.J.S.A. 54:4-34, as required by the statute. The letter explained:
This request is being made in accordance with N.J.S.A. 54:4-34 and includes a complete copy of the statutory language on the reverse side of this letter for your reference. The information requested must be submitted to this office within 45 days from the date of this letter. In the event that you do not furnish this*120 information within the prescribed time period, you may be precluded from filing any tax appeal challenging the assessment of this property. If you have any questions regarding this request, or need clarification relating to the requested information, please contact this office.
The assessor’s request was delivered to a representative of the taxpayer on June 5, 2009. The taxpayer did not respond to the assessor’s request. The assessor thereafter set the assessment on the property without the benefit of the taxpayer’s response.
On March 24, 2010, plaintiff filed a Complaint challenging the assessment on the property for tax year 2010.
On August 17, 2010, defendant moved for relief under N.J.S.A. 54:4-34 based on plaintiffs failure to respond to the assessor’s request for income and expense information. Defendant sought dismissal of the Complaint and an Order limiting plaintiff to a reasonableness hearing as provided in Ocean Pines, Ltd. v. Borough of Point Pleasant, 112 N.J. 1,
Plaintiff opposed the motion, arguing that the tax assessor’s request failed accurately to explain the consequences of the taxpayer’s failure to respond. According to plaintiff, the assessor’s statement that the taxpayer “may be precluded from filing any tax appeal challenging the assessment of this property” in the event it did not furnish the requested information is an inadequate and incomplete explanation of the appeal-preclusion provision of N.J.S.A. 54:4-34. According to plaintiff, the assessor has an obligation in a request for income and expense information to explain fully the statute and inform the taxpayer that failure to respond in a timely fashion will bar any appeal of that assessment. In support of its argument plaintiff relies primarily on a passage in the court’s opinion in Southland, supra. In addition, the taxpayer argues that the assessor’s statement is misleading and precludes dismissal of the Complaint under the square corners doctrine.
The municipality contends that the statute imposes no obligation on the assessor to explain the consequences of a failure to respond and that inclusion of the text of the statute with the request adequately informs the taxpayer of the appeal-preclusion provision of N.J.S.A 54:4-34. According to defendant, the holding in
II. Conclusions of Law
N.J.S.A. 54:4-34 provides
Every owner of real property of the taxing district shall, on written request of the assessor, made by certified mail, render a full and true account of his name and real property and the income therefrom, in the case of income-producing property ... and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request ... the assessor shall value his property at such amount as he may, from any information in his possession or available to him, reasonably determine to be the full and fair value thereof. No appeal shall be heard from the assessor’s valuation and assessment with respect to income-producing property where the owner has failed or refused to respond to such written request for information within 45 days of such request____In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section.
In light of the severity of the appeal-preclusion provision of N.J.S.A. 54:4-34, this court has consistently held assessors to a standard of strict compliance with the statute. “The government must speak in clear and unequivocal language where the consequence of non-compliance is the loss of the right to appeal assessments.” Cassini v. City of Orange, 16 N.J.Tax 438, 453 (Tax 1997). Thus, a request that does not clearly identify the information sought may not form the basis of dismissal of a Compliant. In addition, an assessor’s request must provide the taxpayer with fair notice of his obligations, which requires that the subject property be clearly and unequivocally identified in the request. Green v. City of East Orange, 21 N.J.Tax 324 (Tax 2004).
The question of whether the assessor must explain the appeal-preclusion provision of N.J.S.A. 54:4-34 and the consequences of a taxpayer’s failure to comply with the statute was addressed in Pisani. In that case, the municipal tax assessor sent the property
The taxpayers failed to respond to the information request and subsequently filed an appeal challenging the assessment set by the assessor. In opposition to the municipality’s motion to dismiss the Complaint pursuant to N.J.S.A 54:4-34, the taxpayers argued that the assessor’s statement that the taxpayers “may be precluded from filing an appeal” should they fail to respond to the request in a timely fashion amounted to an inadequate explanation of the law because dismissal of the Complaint for failure to respond is mandatory under N.J.S.A 54:4-34. Id. at 414-15.
This court rejected the taxpayer’s contentions. As the court explained,
[h] ere, the taxpayers received a current version of the statute. Inclusion of the statute alerts the taxpayer of the repercussions of noncompliance. The municipality’s notice is, therefore, in compliance with the statute.
[Id. at 416.]
The court continued
[i] n fact, by stating in the main text of its notice that the taxpayers’ noncompliance “may” be fatal to an appeal, the municipality put the taxpayers on notice of the potential consequences of noncompliance. This went beyond the requirements of N.J.S.A. 54:4-34 and is indicative of the municipality’s efforts to turn very “square corners” in its dealings with the taxpayer.
[Ibid.]
The court’s holding in Pisani controls here. The tax assessor satisfied N.J.S.A 54:4-34 by including in his request the text of the current version of the statute. The law plainly sets forth the consequences of a taxpayer’s failure to respond. Inclusion of the statute with the assessor’s request goes beyond the ordinary rule that taxpayers are charged with knowledge of the law. See
In the plain language of the statute, the Legislature did not require that the tax assessor explain the meaning of Chapter 91. The suggestion to the contrary in Southland, supra, is dictum, and not supported by law. The issue before the court in Southland was whether a taxpayer who failed to respond to an assessor’s Chapter 91 request may raise in opposition to a motion to dismiss the Complaint the defense that the property is not income producing. 21 N.J.Tax at 576. The taxpayer did not assert a challenge based on the contents of the assessor’s request or argue that the assessor failed adequately to explain the consequences of a failure to provide income and expense information in a timely fashion.
Before addressing the issues raised by the parties, the court, in what amounts to an introductory paragraph of its analysis of N.J.S.A. 54:4-34 stated that the statute imposes three “strict obligations” on the assessor: “(1) the letter must include a copy of the text of the statute; (2) it must be sent by certified mail to the owner of the property; and (3) it must 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.” Id. at 578. The court cites no support for the proposition that the assessor has an obligation to explain the meaning of the statute. Nor is the subject addressed again at any point in the court’s opinion, likely because neither party had raised the issue and the contents of the assessor’s request was not essential to resolution of the parties’ claims.
In Thirty Mazel, supra, the court quoted the above-referenced passage of the Southland opinion in an introductory paragraph on N.J.S.A. 54:4-34. The court did not analyze the Southland opinion or cite any further support for the proposition that the
While this court is always free to disagree with the opinions of other trial courts, and its own prior opinions, the decision to do so is made easier where a party urges the adoption of dictum. Dictum is a statement by a judge “not necessary to the decision then being made” and as such is “entitled to due consideration but does not invoke the principle of stare decisis.” Jamouneau v. Division of Tax Appeals, 2 N.J. 325, 332,
One member of this court has already expressed disagreement with the suggestion in Southland, repeated in Thirty Mazel, that an assessor has an obligation to explain the consequences of failing to respond to a request for income and expense information. “[T]his court ... respectfully disagrees with those decisions to the extent they find that the language of N.J.S.A. 54:4-34 requires” an assessor to “spell out” the consequences of failing to respond to a Chapter 91 request for income and expense information. Town of Phillipsburg v. ME Realty, LLC, 26 N.J.Tax 57, 69 (Tax 2011).
Nor is there any merit to plaintiffs claim that the municipality should be precluded by the square corners doctrine from seeking relief under N.J.S.A. 54:4-34. The Supreme Court examined the square corners doctrine in the local property tax context in F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426-27,
We have in a variety of contexts insisted that governmental officials act solely in the public interest. In dealing with the public, government must “turn square corners.” Gruber v. Mayor and Twsp. Com. of Raritan Tp., 73 N.J.Super. 1201179 A.2d 145 ] (App.Div.), aff'd., 39 N.J. 1 [186 A.2d 489 ] (1962). This applies, for example, in government contracts. See Keyes Martin v. Director, Div. of Purchase and Property, 99 N.J. 244 [491 A.2d 1236 ] (1985). Also, in the condemnation field, government has an overriding obligation to deal forthrightly and fairly with property owners. See Rockaway v. Donofrio, 186 N.J.Super. 344 [452 A.2d 694 ] (App.Div.1982); State v. Siris, 191 N.J.Super. 261 [466 A.2d 96 ] (1983). It may not conduct itself so as to achieve or preserve any kind of bargaining or litigational advantage over the property owner. Its primary obligation is to comport itself with compunction and integrity, and in doing so government may have to forego the freedom of action that private citizens may employ in dealing with one another.
*126 [Id. at 426-427,495 A.2d 1313 .]
The currency of the square corners doctrine in the area of taxation was highlighted by the Court. The “statutory provisions governing substantive standards and procedures for taxation, including the administrative review process, are premised on the concept that government will act scrupulously, correctly, efficiently, and honestly. It is to be assumed that the municipality will exercise its governmental responsibilities in the field of taxation conscientiously, in good faith and without ulterior motives.” Id. at 427,
The doctrine “cannot be applied with rigidity or undue technicality.” New Concepts For Living, Inc. v. City of Hackensack, 376 N.J.Super. 394, 403,
Plaintiffs claim for equitable relief is based on its contention that the assessor’s request for income and expense information contains a misrepresentation because the assessor stated that a failure to comply with the request “may” result in dismissal of an appeal of the assessment on plaintiffs property. According to plaintiff, because the statute mandates dismissal of an appeal filed by a taxpayer who fails to respond to the assessor’s request the assessor should have stated that any appeal filed “will” be dismissed if a response is not timely made. Plaintiff’s argument misapprehends the law.
Dismissal of an appeal filed by a taxpayer who fails to respond to an assessor’s request for information is not mandatory. There are several instances in which an appeal filed by a taxpayer who does not respond to an assessor’s request for information may not be dismissed. R. 8:7(e) requires that motions to dismiss based on
It is plain that dismissal of an appeal filed by a taxpayer who does not respond to a Chapter 91 request is not automatic. Such an appeal may be dismissed, as was explained to the taxpayer by the assessor in this case. But such an appeal may also be permitted to proceed. The assessor’s request contains accurate information, negating the taxpayer’s request for relief under the square corners doctrine. Defendant’s motion is granted.
In Ocean Pines, supra, our Supreme Court held that a taxpayer who does not comply with N.J.S.A. 54:4-34 may nevertheless seek review of the reasonableness of the assessor’s valuation based upon the data available to the assessor when the valuation was made. Such an inquiry would be limited to “(1) the reasonableness of the underlying data used by the assessor, and (2) the