Tax Court Disagrees with Board’s Dismissal, Denies Motion to Dismiss and Preserves Appeal

by: Anthony F. Della Pelle
17 Oct 2017

Under N.J.S.A. 54:51A-1(c), the Tax Court is precluded from reviewing an appeal from the county board of taxation if the appeal to the board was either (1) withdrawn; (2) settled; (3) or dismissed for lack of prosecution.   Non-appearance by a taxpayer at a county board hearing will constitute as a failure to prosecute the appeal, warranting dismissal and precluding review by the Tax Court.

In Barbara Ann Depaul Rev. Trust v. Boro. of Pine Hill, the taxpayer filed an appeal with the Tax Court following dismissal of its appeal at the Camden County Tax Board.  The county board dismissed the appeal due to the taxpayer’s failure to appear at the scheduled hearing time.  Thus, based on the taxpayer’s dismissal at the county board, the Borough filed a motion with the Tax Court to dismiss the complaint pursuant to N.J.S.A. 54:51A-1(c).  The Tax Court, however, denied the Borough’s motion on grounds that the dismissal at the county board was improper.

There was no dispute that plaintiff’s counsel informed the county board before the hearing started (9:30 a.m.) that she would be a few minutes late due to a traffic delay.  Although late, plaintiff’s counsel arrived shortly after the call to the county board was made but upon her arrival, the county board alerted her that her appeal had been dismissed and there was nothing that can be done.  The parties’ certifications indicate that plaintiff’s counsel arrived at the hearing between 9:45 a.m. and 9:55 a.m., and the motion to dismiss the appeal was granted “slightly” before 10 a.m.

In light of these facts, the Tax Court concluded that the delay was minor and the county board was informed of plaintiff’s expected lateness before the hearing began.  Moreover, plaintiff’s counsel’s lateness neither prejudiced the defendant nor did the lateness arise to a level of deliberate and contumacious behavior warranting dismissal of the appeal.  Therefore, the Tax Court preserved the taxpayer’s appeal and denied the Borough’s motion noting that “although expeditious hearings are of primary importance to the tax appeal system it must not be allowed to cloud out the paramount objective of administering justice in each appeal.”

A copy of the Tax Court’s opinion can be found here.