Taxpayer Defeats Dismissal Claim by Hopatcong Borough

by: Anthony F. Della Pelle
12 Mar 2010

New Jersey Tax Court Judge Vito L. Bianco, J.T.C., recently denied the Borough of Hopatcong’s Motion to Dismiss a tax appeal where the taxpayer’s Complaint was filed before the April 1 statutory deadline, but the copies mailed to the Municipal Tax Assessor and Municipal Clerk were received by the parties after that filing deadline.  In Hopatcong Fuel On You, LLC v. Hopatcong Borough, __ N.J. Super. __ (Tax 2010), Hopatcong Borough argued that the relevant statute and Court Rule required that a copy of the Complaint be filed with the court and served upon the Tax Assessor and Municipal Clerk by the April 1 deadline.  The taxpayer’s attorney timely filed the Complaint on March 30, 2009 by overnight mail, but deposited the assessor and clerk’s copies in a United State’s Postal Service drop box.  The assessor received her copy on April 6, 2009, while the clerk claims to have never received a copy of the Complaint.

 Judge Bianco held that N.J.S.A. 54:3-21(a) and R. 8:4-1(a)(4) only required the taxpayer to serve the assessor and the clerk before the deadline, and service was completed, under the common law “Mail Box Rule”, when the Complaint was placed in regular mail with the proper address and postage affixed.  Additionally, the delay in service did not diminish Hopatcong Borough’s ability to present a defense to the Complaint.

 A copy of the opinion can be found here.  

The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.

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