County boards of taxation have been put on notice that they should refrain from dismissing property owners’ appeals of their tax bills except in the most egregious of circumstances.
Tax Court Judge Vito Bianco, in a decision released Monday, chided the Morris County Board of Taxation for dismissing appeals by two property owners on the ground that the appraisals they submitted failed to overcome the assessments’ presumption of validity.
“[T]he Board’s refusal to allow the Taxpayers to proceed with their appeals despite appearances by counsel and appraisers effectively created a situation where the Taxpayers were precluded from satisfying the evidentiary standard needed to avoid a dismissal for lack of prosecution,” Bianco wrote in Schaefer v. Chatham, 12915-12.
The owners — Norman Schaefer and John Fauver Jr., both of Chatham — hired appraisers who used standard forms, usually employed by applicants to Fannie Mae for mortgage loans, that state property value determinations.
The Morris County board, acting on the borough’s request, dismissed the appeals for failure to prosecute based on neither owner having presented “complete and competent evidence” as required under N.J.A.C. 18:12A-1.9(e).
On appeal, Bianco held that “under the present facts, the Board’s dismissal of the Taxpayers’ appeals for lack of prosecution was wholly improper.”
Bianco found the case similar to Wilshire Oil Co. of Texas v. Township of Jefferson, 17 N.J. Tax 583 (Tax 1998). There, a tax appeal was dismissed for lack of prosecution when an appellant sought to call the township’s assessor as a witness when his own witness was unavailable on the day of the hearing.
“[A] county board of taxation may not create a basis to dismiss for lack of prosecution by improperly denying a taxpayer the right to present testimony which may be adequate to avert such a dismissal,” Bianco said, quoting Wilshire.
Bianco noted that in 1906, the year the county boards of taxation were created, Republican Gov. Edward Stokes told them that a “square deal” should be offered to every taxpayer.
A decade later, Democratic Gov. James Fielder said of the boards: “[T]he have a real duty through which they can be of real service to the people.”
“In this court’s observation, recent dismissals … by the Board for lack of prosecution occur with much too great frequency for a consequence intended to ‘be granted only in the most egregious circumstances,’” Bianco said. “Clearly this is not the envisioned purpose in the tax appeal process that County Boards were intended to have.
“[D]ismissing appeals for lack of prosecution on facts such as here fall far short of the ‘square deal’ for every taxpayer Governor Stokes had hoped for,” he said.
The lawyer for both appellants, West Orange solo Richard Kostovski, says boards needed to be reminded that they are quasi-judicial bodies that must abide by evidentiary rules.
“This was a wake-up call that the boards must put justice first,” he says. “The boards have been accepting these forms for a long time. We all know that this was just a way to get claims kicked out.”
The board’s attorney, Levi Kool, of Morristown’s O’Donnell McCord, did not return a telephone call seeking comment.