Tax Court Denies City’s Motion to Dismiss for Lack of Prosecution

by: Anthony F. Della Pelle
26 Sep 2018

The Tax Court recently denied a motion by the City of Ventnor to dismiss an appeal brought by a property owner from a judgment of the Atlantic County Board of Taxation.

The City claimed the owner failed to prosecute the tax appeal before the County Board when its counsel appeared, but presented no evidence and called no witnesses. The City’s counsel claimed it requested that the Board dismiss the appeal for lack of prosecution. The owner contends it requested that the Board affirm the assessment “without prejudice” so that it could proceed with an appeal to the Tax Court.

The Board issued a judgment in July 2017 that affirmed the assessment finding that the owner did not overcome the presumption of correctness. The owner appealed to the Tax Court in early September at which time counsel for the City realized that the Board matter had not been dismissed with prejudice as requested.  Upon a request by the City, the Board issued a “corrected judgment” on October 20, 2017 dismissing the case for lack of prosecution.

In April 2018, the City moved to dismiss the Tax Court complaint for lack of prosecution. The court denied the motion ruling that the Board lacked jurisdiction to issue the corrected judgment after the expiration of the statutory deadline to hear appeals for the relevant tax year. By statute, a county board must resolve all appeals within three months of the filing deadline. The law provides for an extension, which had been requested and granted here. However, the extension deadline was September 30, 2017.  Here, the Board heard the owner’s appeal in July 2017 and issued the judgment by early August 2017, well within the extended deadline.  The corrected judgment however, was not issued until October 20, 2017.

The court found that the facts concerning whether plaintiff failed to prosecute this case before Board are contradictory. However, the court did not address those factual disputes because it ruled that the Board’s corrected judgment dismissing for lack of prosecution was issued after the statutory deadline and was, therefore, void.

A copy of Sherman v. City of Ventnor may be found here.

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