Shelbourne Spring LLC v. New Providence Boro

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
SHELBOURNE SPRING LLC, TAX COURT OF NEW JERSEY
Plaintiff DOCKET NO. 013528-2019
v.
NEW PROVIDENCE BOROUGH,
Defendant.
DECIDED: April 7, 2022
Joseph Buro for Plaintiff Shelbourne Spring LLC
(Zipp and Tannenbaum LLC)
Wesley E. Buirkle for Defendant New Providence Borough
(DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum, P.C.)
GILMORE, J.T.C.
This opinion concerns Defendant New Providence Borough’s (hereinafter “the
Borough”) motion to dismiss Plaintiff Shelbourne Spring LLC’s (hereinafter “Plaintiff”)
complaint challenging the 2018 added/omitted assessment rendered by the Borough as untimely
pursuant to N.J.S.A. 54:4-63.11 and N.J.S.A. 54:51A-9(b). For the reasons stated herein, the
court grants the Borough’s motion to dismiss.
Findings of Fact and Procedural History
The court makes the following findings pursuant to R. 1:7-4. The real property subject to
this appeal is located at 41 Spring Street, New Providence, NJ and is classified as Block 210, Lot
21 in the Borough. The mailing address for Plaintiff is 2362 Nostrand Avenue, Suite 7, Brooklyn
NY 11210. Plaintiff filed a complaint with the Tax Court on December 13, 2019, challenging an
added/omitted assessment for the subject property for the tax year 2018. The added/omitted
assessment placed on the property was:
Added/Omitted Assessment $ 1,570,400
Prorated Assessment $ 785,200
Prorated Months 6
The Borough filed this motion to dismiss on January 28, 2020, asserting that the
complaint was untimely pursuant to N.J.S.A. 54:4-63.11 and N.J.S.A. 54:51A-9(b). After motion
practice and after several case management conferences, the court scheduled a plenary hearing to
hear witness testimony and make determinations of credibility. The plenary hearing was held on
March 3, 2022. Plaintiff presented the testimony of Avi Jacobowitz, who was the Director of
Accounting for the Plaintiff during the relevant period. The Borough presented the testimony of
Bryan Flynn, Tax Assessor, and Denise Brinkofski, Tax Collector.
Conclusions of Law
The two statutes that govern the timely appeals of added/omitted assessments are
N.J.S.A. 54:4-63.11 and N.J.S.A. 54:51A-9(b). N.J.S.A. 54:4-63.11 provides, in pertinent part:
[A]ppeals from added assessments may be made directly to the Tax Court on or before
December 1 of the year of levy, or 30 days from the date the collector of the taxing district
completes bulk mailing of the tax bills for added assessments, whichever is later, of the
aggregate assessed valuation of the property exceeds $750,000.
[N.J.S.A. 54:4-63.11].
Additionally, N.J.S.A. 54:51A-9(b) provides:
Direct appeals to the Tax Court of assessments of property with an assessed valuation in
excess of $750,000 as provided in R.S. 54:3-21 shall be filed…with regard to added or
omitted assessments, on or before December 1 of the year of levy, or 30 days from the date
2
the collector of the taxing district completes the bulk mailing of tax bills for the added
assessment or omitted assessments, whichever is later.
[N.J.S.A. 54:51A-9(b)].
A failure to file a timely complaint divests this court of jurisdiction even in the absence of harm
to the municipality. Lawrenceville Garden Apartments v. Twp. of Lawrence, 14 N.J. Tax 285,
288 (App. Div. 1994). Strict adherence to statutory filing deadlines is of particular concern in tax
matters given the “exigencies of taxation and the administration of local government.” F.M.C.
Stores v. Borough of Morris Plains, 100 N.J. 418, 424 (1985) (citing Princeton Univ. Press v.
Borough of Princeton, 35 N.J. 209, 214 (1961)). “The policy of applying strict time limitations to
tax matters is based upon the very nature of our administrative tax structure.” Galloway Twp. v.
Petkevis, 2 N.J. Tax 85, 92 (Tax 1980). “On the issue of adequacy of notice, as on other issues
raised by a plaintiff to excuse a late filing and thereby avoid a limitation of the action the burden
of proof is on the plaintiff.” Southway, Peter & Lena v. Wyckoff Twp., 20 N.J. Tax 194, 200
(Tax 2002).
It is undisputed that in this case, Plaintiff filed their complaint on December 13, 2019,
after expiration of the statutory deadline. See N.J.S.A. 54:4-63.11; 54:51A-9(b). Despite this
fact, Plaintiff argues that the Borough’s motion should be denied because they did not actually
receive the notice of the added/omitted assessment until after the December 2 deadline had
passed. 1 Plaintiff also argues that the Borough has not established the presumption of receipt
with regards to the mailing of the notice of assessment and the added/omitted tax bill, and that
even if such presumption was met, Plaintiff has overcome it by producing evidence that they did
not in fact receive the notice until after the statutory deadline. In response, the Borough insists
1
While the two statutes call for a December 1 deadline to file appeals, December 1, 2019 was on a Sunday.
Therefore, the deadline for Plaintiff to file an appeal for this matter was December 2, 2019.
3
that the presumption of receipt has been established, that Plaintiff was put on notice of the
added/omitted assessment several times, and that Plaintiff has failed to adequately rebut the
presumption of receipt, requiring this court to grant the motion to dismiss.
New Jersey has long recognized “a presumption that mail properly addressed, stamped,
and posted was received by the party to whom it was addressed.” SSI Medical Services, Inc. v.
State, Dept. of Human Services, 146 N.J. 614, 621 (1996). Conditions that must be shown to
invoke such a presumption are: (1) that the mailing was properly addressed; (2) that proper
postage was affixed; (3) that the return address was correct; and (4) that the mailing was
deposited in a proper mail receptacle or at the post office. Id. This presumption may be
demonstrated through the submission of evidence “of habit or routine practice,” but “evidence of
office custom requires other corroboration that the custom was followed in a particular instance,
in order to raise a presumption of mailing and receive and meet the preponderance of the
evidence standard.” Davis & Assocs., LLC v. Stafford Twp., 18 N.J. Tax 621, 627 (Tax 2000).
The court finds that based on the certifications filed with the court, corroborated by the
testimony of the tax assessor at the plenary hearing, the Borough has met the presumption that
the notice of the added/omitted assessment was received by Plaintiff. Mr. Flynn certified to the
court the Borough’s routine practice with regards to mailing notices of added/omitted
assessments:
5. First, I input all of the relevant [assessment] information, including but not limited to
taxpayer addresses…for each property upon which an added/omitted assessment has been
made into my MCS Microsystems computer software…[a]s regards Plaintiff’s property, I
input Plaintiff’s address on file with New Providence Borough.
6. Second, I use MCS Microsystems to generate added/omitted tax assessment notices for
each of the taxpayers of my added/omitted assessment list.
7. Third, I print out the notices generated by Microsystems.
4
8. Fourth, my office prepares and prints envelopes for each added/omitted assessment
notice that are correctly addressed to taxpayers with the correct return address. Plaintiff’s
envelope was addressed to 2362 Nostrand Avenue, Suite 7, Brooklyn NY 11210.
9. Fifth, my office runs the envelopes through a postage machine which properly stamps
the envelopes containing the added/omitted assessment notices. Plaintiff’s envelope was
run through said postage machine.
10. Sixth, a mail carrier…retrieves the notices to be mailed out by regular mail. Plaintiff’s
added/omitted assessment notice was mailed out along with the rest of the Borough’s
added/omitted assessment notices within one (1) or two (2) days of October 1, 2019.
[Second Certification of Bryan Flynn, ¶ 5-10.]
This was corroborated by Mr. Flynn’s testimony at the plenary hearing. 2 At the hearing, Mr.
Flynn testified that the Borough’s mailing system prints out all notices containing the addresses
of record with the Borough. Mr. Flynn also testified that the routine practice outlined above was
carried out on the day that the notices of 2018 added/omitted assessments were mailed out on
October 1, 2019. Lastly, Mr. Flynn testified that the added/omitted assessment mailed to Plaintiff
at their mailing address was not returned as undeliverable. Mr. Flynn’s certification and
testimony, which the court finds to be credible, sufficiently meets the requirements for
establishing the presumption of receipt with regards to the notice of assessment. See SSI Medical
Services, Inc., 146 N.J. at 621.
The presumption is also satisfied with regards to the added/omitted assessment tax bill
based upon the certification and the testimony of the Borough’s Tax Collector. In her
certification, Ms. Brinkofski outlined the routine procedures that the Borough follows when
mailing out added/omitted assessment tax bills, and certified that this procedure was followed on
October 11, 2019, when Plaintiff’s tax bill for the 2018 added/omitted assessment was mailed.
2
In addition to Mr. Flynn’s testimony, the Borough produced a copy of the notice and attached it to the motion as an
exhibit. The notice property lists the Brooklyn address as the mailing address, correctly identifies the subject
property, the added/omitted assessment, and is dated October 1, 2019.
5
See Second Certification of Denise Brinkofski, ¶ 2. As to the Borough’s customary procedures,
Ms. Brinkofski certified that their tax software automatically generates and prints a listing of all
the added/omitted tax bills in the Borough. Id. at ¶ 6. Each tax bill is then printed out, and the
office “stuffs window envelopes for each added/omitted tax bill that are correctly addressed to
taxpayers with the correct return address.” Id. at ¶ 8. This was completed for Plaintiff’s 2018
added/omitted assessment tax bill. Id. Lastly, Ms. Brinkofski certified that her office then runs
the envelopes through the postage machine to be retrieved by the postal service, and that “if any
tax bill is not deliverable as addressed, it is returned to my office, and I make a note of
it…Plaintiff’s added/omitted tax bill was not returned to the Borough as undeliverable as
addressed.” See id. at ¶ 9-12.
This was corroborated by Ms. Brinkofski’ s testimony at the plenary hearing. At the
hearing, Ms. Brinkofski testified that the Borough’s customary procedures with regards to
mailing of added/omitted assessment tax bills was completed on October 11, 2019. Ms.
Brinkofski also testified that taxpayer information is pulled from the same online system the
assessor uses when printing notices, and imported into the database used to generate tax bills.
The listing of taxpayer accounts is subsequently printed and matched with the list of
added/omitted assessment tax bills, and the bills are thereafter stuffed in window envelopes,
postage is affixed, and they are mailed to taxpayers. 3 Ms. Brinkofski testified that this was done
for Plaintiff, and that Plaintiff’s bill was not returned to her office as undeliverable. 4 The
certification and testimony of Ms. Brinkofski, along with the documentary evidence presented by
3
The Borough also submitted into evidence copies of the cover letter and attached tax bill that was mailed to
Plaintiff dated October 11, 2019; the Tax Collector’s affidavit dated October 11, 2019, swearing that the mailing of
tax bills was completed; and a signed letter to the Union County Board of Taxation indicating that the bulk mailing
for all added/omitted assessment tax bills was completed dated October 11, 2019.
4
Ms. Brinkofski also testified that, while not required by law, she also completed an electronic mailing of the tax
bill to the entity responsible for the payment of Plaintiff’s tax bills.
6
the Borough, lead the court to conclude that the Borough has also met the presumption of receipt
with regards to the mailing of Plaintiff’s tax bill for the 2018 added/omitted assessment. 5 See SSI
Medical Services Inc., 146 N.J. at 621.
The presumption of receipt outlined in SSI Medical Services Inc. “is rebuttable and may
be overcome by evidence that the notice was never in fact received.” Davis & Assocs., LLC, 18
N.J. Tax at 629 (citing SSI Medical Services Inc., 146 N.J. at 625). In Davis & Assocs., LLC, the
municipality sought to dismiss the taxpayer’s appeal because their petition of appeal was filed
after the statutory deadline imposed in N.J.S.A. 54:3-21. See 18 N.J. Tax at 624. The court, after
finding that the municipality had meet the standard sufficient to establish a presumption of
receipt of the Chapter 75 assessment cards, found that the presumption was not rebutted by the
taxpayer. 18 N.J. Tax at 627-29. The taxpayer relied on the testimony of their receptionist and
controller as to the routine office practice. Id. at 629. The receptionist testified that she stamped
and sorted the tax bills and subsequently gave them to the controller for the taxpayer. Id. She
also testified that she did not remember receiving any of the tax notifications at issue in that case,
but acknowledged that the notices could have been delivered to the taxpayer’s office. Id. The
controller testified that he was responsible for paying tax bills, and he never received any
Chapter 75 notification cards from the municipality for the tax year in question. 6 Id. at 630. The
controller also testified that had he received the notice of assessment, he would have attached a
memo and “sent it to the owner.” Id.
5
The Borough also presented sufficient evidence that indicates that the delinquency notices for the subject property
dated November 14, 2019 were received by Plaintiff. Ms. Brinkofski testified that the mailing of delinquency
notices requires the same procedures as the mailing of tax bills and notices of assessments, and this was done on
November 14 for the delinquencies. Plaintiff had a delinquency because it had not paid the taxes due for the
added/omitted assessment until January 16, 2020.
6
The controller also testified that he first learned of the assessment on the subject property when he received the
third quarter tax bill.
7
The court dismissed the appeal. Id. at 635. The court found that the evidence submitted
by the taxpayer was “insufficient to rebut the presumption of receipt because the taxpayer failed
to establish by a preponderance of the evidence that it did not receive the [notice of assessment].
Id. at 633. The court reasoned that because the receptionist acknowledged that it could have been
delivered despite her not remembering, along with the fact that the court determined that the
controller’s testimony was not credible, there was no evidence that warranted rebutting the
presumption that the taxpayer received the notice of assessment.” Id. The court also found that
equitable considerations were not applicable there, because there was ample evidence to find that
the Chapter 75 notices were properly mailed to the taxpayer. Id. But see Centorino v. Tewksbury
Twp., 18 N.J. Tax 303, 320 (Tax 1999) (granting extension of filing deadline to taxpayer when
municipality acknowledged it knew of new address for taxpayer but sent notice of assessment to
wrong address).
Here, Plaintiff argues that they have provided sufficient evidence to rebut the
presumption by indicating that they did not receive notice of the assessment until after the
December 2 deadline. In support of this argument, Plaintiff presented the testimony of Avi
Jacobowitz, Director of Accounting for Plaintiff. 7 Mr. Jacobowitz testified that in his role he
oversees the financials for all the properties owned by Plaintiff. Plaintiff contracts with other
entities to manage the properties, and for the subject property, Plaintiff contracts with Diversified
Management Plus. Mr. Jacobowitz testified as to the procedures that his office follows when
receiving correspondence relating to tax matters. He testified that the receptionist at his office
opens mail and sends it throughout the office to the individual responsible for handling the
7
Plaintiff also relied on the certification of Judy Malin, Director of Operations for Diversified Management Plus, the
entity responsible for managing the subject property. Ms. Malin did not testify at the plenary hearing.
8
matter. He testified that this is usually done on the same day that the mail is received, and that
tax bills and notices of assessments usually follow that same process. When a tax bill is received,
it is scanned and then sent over to Diversified Management Plus, the manager of the subject
property. Correspondence is not date stamped when it is received at Mr. Jacobowitz’s office.
Mr. Jacobowitz testified that he has never waited over a month to forward
correspondence to Diversified Management Plus, and that he does not recall if he has ever waited
over a month to review tax correspondence from a municipality. He testified that based on the
procedures outlined, and the fact that he forwarded the notice of assessment to the subject
property’s manager on December 5, 2019, it must have been received by his office either that
day or the day before. He testified however that he cannot confirm exactly when it was received,
and that the receptionist responsible for intake of mail on the relevant dates is no longer
employed by his firm.
Portions of Mr. Jacobowitz’s testimony was corroborated by the certification of Judy
Malin, Director of Operations for Diversified Management Plus. In her certification, Ms. Malin
stated:
When mail is received at the Brooklyn address…it is opened by the receptionist, per
standard practice, upon receipt, and delivered to the employee to whom it is addressed or,
if not so addressed, to the employee which oversees the matter…[i]f the mailing is related
to real property taxes, it is then immediately forwarded to Diversified Management Plus,
per standard practice, for review and action, if required. A review of the file indicates that
the standard procedure outlined above was followed in this instance: the notice of
added/omitted assessment, upon receipt was delivered to Avi Jacobowitz, the Director of
Accounting for the Plaintiff and employee responsible for real property tax matters. Mr.
Jacobowitz then forwarded the notice to me on December 5, 2019.
[Certification of Judy Malin, at ¶ 7.]
9
Based upon Mr. Jacobowitz’s testimony and the certification of Ms. Malin, Plaintiff argues that
the notice of assessment could not have been received until after the December 2 deadline
because Mr. Jacobowitz did not forward it to Diversified until December 5.
The court finds that Plaintiff has not rebutted the presumption of receipt. As the Borough
states, Plaintiff does not dispute that the 2362 Nostrand Avenue Suite 7, Brooklyn, NY 11210
address on file was its correct address. See Centorino, 18 N.J. Tax at 320 (extending filing
deadline for taxpayer when municipality knew of wrong mailing address and mailed to the
incorrect address). This case aligns with Davis & Assocs., LLC, where the court found that the
taxpayer did not present sufficient evidence to overcome the presumption of receipt. 18 N.J. Tax
at 633. Here, the only testimony offered by Plaintiff was of Mr. Jacobowitz. No testimony or
certification of the receptionist that was responsible for opening, sorting, and furnishing of mail
received by Plaintiff has been provided. Without the testimony of the individual who was
responsible for opening, sorting, and furnishing mail at the office, there is not sufficient evidence
on the record for the court to find that the notices were in fact received by Plaintiff after
December 2, as opposed to simply having been misplaced, misfiled, neglected, or misdirected
after having been received. Furthermore, there was testimony at the plenary hearing that stated
that Plaintiff does not time stamp any of its mail when it receives it, which may have supported
Plaintiff’s argument in the absence of testimony from the receptionist.
Regarding the evidence presented by Plaintiff that its office did not receive the October
11, 2019 added/omitted assessment tax bill or the November 14, 2019 delinquency notice, the
same reasoning applies. 8 Because the evidence presented is insufficient to show that Plaintiff did
8
The Borough has presented sufficient evidence for the court to conclude that it notified Plaintiff of the
added/omitted assessment at least five times before the filing deadlines in N.J.S.A. 54:4-63.11 and N.J.S.A. 54:51A-
9(b): (1) the October 1, 2019 notice of added/omitted assessment; (2) October 11, 2019 added/omitted assessment
10
not receive the notice of added/omitted assessment until after the filing deadline, the court must
dismiss the appeal. See Davis & Assocs., LLC, 18 N.J. Tax at 633.
The Borough’s motion to dismiss is granted, and judgment is entered accordingly.
/s/ Michael J. Gilmore, J.T.C
tax bill; (3) October 11, 2019 electronic added/omitted assessment tax bill; (4) the November 14, 2019 delinquency
notice; and (5) the November 14, 2019 electronic delinquency notice.
11