Taxpayers and Assessors: Chapter 91 Requests MUST Be Sent By Regular AND Certified Mail

by: Allan Zhang
22 Aug 2022

A recent tax court opinion by Judge Cimino, J.T.C. clarifies whether the service of a tax assessor’s request for income and expense information (“Chapter 91”) by certified mail only was sufficient to satisfy N.J.S.A. 54:4-34. In short, the answer is no.

In this matter, on September 15, 2020, the City of Brigantine’s (“City”) Tax Assessor, mailed a Chapter 91 request to Brigantine Marine Superstore Inc. (“Superstore”) by certified mail only. The letter was returned to the Assessor on December 15, 2020, marked “Return to Sender – Not Deliverable As Addressed – Unclaimed.” The request was not sent by regular mail and Superstore did not respond to the request.

The Assessor set the 2021 assessed value at $693,000 and Superstore appealed the assessment to the Atlantic County Board of Taxation. The City filed a motion to dismiss the appeal under Chapter 91, which was granted. Superstore then filed its appeal with the Tax Court and the City renewed its motion to dismiss under Chapter 91.

Since 1918, taxpayers in New Jersey have been required to provide certain information to the tax assessor upon request. Failure to respond to such a request could result in the barring or dismissal of one’s appeal. N.J.S.A. 54:4-34 reads:

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 produce his title papers, and he may be examined on oath by the assessor, and if he shall fail or refuse to respond to the written request of the assessor within 45 days of such request, or to testify on oath when required, or shall render a false or fraudulent account, 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 or to testify on oath when required, or shall have rendered a false or fraudulent account. The county board of taxation may impose such terms and conditions for furnishing the requested information where it appears that the owner, for good cause shown, could not furnish the information within the required period of time. In making such written request for information pursuant to this section the assessor shall enclose therewith a copy of this section.

Thus, when a tax assessor sends a Chapter 91 request, there are three requirements: 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. Southland Corp. v. Township of Dover, 21 N. J. Tax 573. 578 (Tax 2004); See also Thirty Mazel LLC v. City of Orange, 24 N.J. Tax 357, 362 (Tax 2009); Fairfield Dev. v. Borough of Totowa, 27 N.J. Tax 306, 308 (Tax 2013).  The Appellate Division has held that where a Chapter 91 request was sent by certified and regular mail and only the regular mail was received, service was sufficient. Towne Oaks at South Bound Brook v. Borough of South Bound Brook, 326 N.J. Super. 99, 102 (App. Div. 1999), certif. den., 164 N.J. 188 (2000).

These statutory requirements are buttressed by the concept that government will act “scrupulously, correctly, efficiently, and honestly” (F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 427 (1985)) and likewise, that “[d]ue process requires that deprivation of property by state action be preceded by notice and an opportunity to be heard.” Twp. of Jefferson v. Block 447A, Lot 10, 228 N.J. Super. 1, 4 (App. Div. 1988). As such, a taxpayer should not be barred from filing a tax appeal unless fair notice has been given to the taxpayer of its Chapter 91 obligations. Towne Oaks, 326 N.J. Super. at 102. (citing Cassini v. City of Orange, 16 N.J. Tax. 438, 450 (Tax 1997)).

Here, the Assessor mailed the Chapter 91 request by certified mail which was returned as “unclaimed” and took no further action. When the letter was returned, the Assessor knew that the taxpayer had not received it.  As the Assessor failed to further attempt to notify the taxpayer, no notice was given to the taxpayer was given as to the consequences of failure to comply with the Chapter 91 request. Had the Assessor sent a copy of the Chapter 91 request by regular mail, it would have sufficiently informed the taxpayer of the consequences of noncompliance. Therefore, taxpayers and assessors beware, Chapter 91 requests should be sent by both certified and regular mail to ensure fair notice of the request. Otherwise, the request may be insufficiently noticed.

To read the full Brigantine Marine Superstore Inc. v. City of Brigantine opinion, please click here.