This is the long-delayed and final entry in this series of posts discussing cases published by the Tax Court of New Jersey during the first week of 2021. Much has happened since that time, but the cases are still relevant. Without any further ado...
The third published Tax Court case involved the trial of a nursing home for seven tax years, Eagle Rock Convalescent Center v. Twp. of West Caldwell, Nos. 6780-08, 8154-09, 2089-10, 10834-11, 264-12, 868-13 & 5687-14 (Tax Court January 6, 2021). For those unfamiliar with the practice, each tax year is a separate, appealable event, and in the case of complex commercial properties (such as a nursing home) where large tax dollars may be at stake, it's not unusual for the case to take many years to resolve. Seven years is definitely on the higher end of the spectrum, but it's not the limit by any stretch.
Nursing homes are something of an enigma for property tax valuation; the Tax Court views them as income producing property, but despite its preference for the income approach to value such property, the court has consistently found the income data to be lacking and turned to the cost approach to value them. This is, in part, because the Tax Court recognizes that the fees charged by the nursing home are only partly for the privilege of residing in the facility, and also because the facilities are almost universally owner-occupied
In this case, the taxpayer's expert utilized the Rushmore methodology, typically applied to hotels to extract the business component of the nursing home's income, leaving that portion attributable to the real estate to find value for tax purposes. However, the Tax Court again rejected the income approach. The court found that the provision of a patient mix at comparable facilities was insufficient by itself, but suggested that patient mix and actual revenue might suffice to produce a reliable market income. Moreover, the court found that the expert's analysis did not strip out all components of value from the revenue stream aside from that attributable to the real estate. With these flaws, the income approach failed.
Turning to the cost approach, the Tax Court once again rejected the use of computerized cost estimators as insufficiently documented and repeatable for use in developing replacement cost figures. As a result, the Tax Court found itself without sufficient evidence to find value for the property for tax years 2008-2010 and 2013 - 2014.
However, since the municipality used a second expert for tax years 2011-2012 who used the manuals to calculate a replacement cost by hand, the Tax Court did find value for those years. The values concluded by the Tax Court exceeded the assessments, but the municipality filed no counterclaim in 2011, a revaluation year (absent unusual circumstances the court cannot increase a revaluation assessment unless a counterclaim has been filed) and the value fell within the common level range for tax year 2012. As a result, all tax years were affirmed.
This marks the end of this series, but keep checking back for more Tax Court case commentary, as the Tax Court has been busy in these early months of 2021!
Our second installment from the Tax Court's busy first week of 2021 is a twist on an exemption opinion penned by Presiding Tax Court Judge Mala Sundar, P.J.T.C. The case, Township of Freehold v. Centrastate Healthcare Services, Inc., Nos. 000047-2016 & 000048-2016 (Tax Court January 5, 2021) marks further fallout from the Tax Court's opinion in AHS Hospital v. Morristown, 28 N.J. Tax 456 (Tax 2015), though this time falling in the favor of the taxpayer. Let's dig in a little to this one.
First, a bit of history. The subject property was transferred to a for-profit entity in 2008, though still used as a clinic for indigent patients. The municipality filed an appeal from the "failure to impose" an omitted assessment for 2014 and 2015. The municipality initially moved for summary judgment on the grounds that a for-profit entity was not eligible for a tax exemption. The Tax Court initially denied that motion, and then later granted it, leaving open the issue of valuation for trial. After a change in counsel, the taxpayer moved for reconsideration of the grant of partial summary judgment rescinding the exemption on the grounds that the Tax Court's decision in another hospital exemption case mandated a dismissal, namely Borough of Red Bank v. RMC-Meridian Health, 30 N.J. Tax 551 (Tax), motion for leave to appeal den., 238 N.J. 455 (2019). In that case, the Tax Court found that a similar municipal appeal had to be dismissed, as the court lacked jurisdiction to consider the appeals. The court held that the municipality should have filed an appeal under N.J.S.A. 54:3-21 from the original assessment, and not from a failure to impose an omitted assessment.
With that background, the outcome of the case was straightforward. Because the statute for the termination of an exemption requires the omitted assessment to be imposed in the year that the change prompting the termination occurs, the court found that there was no basis for reliance upon the standard omitted assessment procedure in a subsequent year. Rather, since the exemption had been granted for that tax year, there was no other change at the property and the township had not filed a timely appeal, the taxpayer was entitled to rely on that exemption. Since the valuation claims could also not survive, the Tax Court directed the entry of judgment dismissing the appeals with prejudice.
While the rest of us were preoccupied with goings on elsewhere, the New Jersey Tax Court was quietly working away, bringing in 2021 with a trio of published decisions.
The first, authored by Tax Court Judge Mary Siobhan Brennan, J.T.C., involved mutual appeals by taxpayer and municipality in 30 Journal Square Partners, LLC v. City of Jersey City, No. 009666-2020 (Tax Court December 30, 2020). In this case, the municipality filed its appeals in early June at the county tax board, and the taxpayer filed directly to Tax Court on the July 1 filing deadline. The taxpayer contacted the county board, requesting that the municipality's appeals be dismissed for lack of jurisdiction. While the municipality did not object to a dismissal, the City wanted the right to appeal from the county's judgment to the Tax Court. The taxpayer took the position that the county board was deprived of jurisdiction, and the judgment would be a nullity from which the municipality would not be able to appeal. The taxpayer moved before the Tax Court to have jurisdiction established in the Tax Court, and to required the City to withdraw its county appeals. While the municipality did not contest the Tax Court's jurisdiction, it did insist that the proper procedure was for its appeal to be dismissed without prejudice, to allow it to appeal to the Tax Court and preserve its right to appeal.
The Tax Court confirmed its exclusive jurisdiction, but permitted the City's county appeal to proceed on appeal to Tax Court. The court adopted the reasoning of the Tax Court in another unpublished opinion, wherein the Tax Court allowed an untimely counterclaim to proceed so as to "harmonize" the municipality's right to appeal and the exclusive Tax Court jurisdiction established in the statute.
Practically, the Court's ruling would allow filers to the county board to preserve their appeal in the event that their adversary files at the Tax Court and that party fails to file a timely counterclaim. However, this loophole is not consistent with the plain language of the statute, and it runs contrary to the principle of strictness required with regards to filing deadlines. However, until the Appellate Division, Supreme Court or Legislature speaks on the issue, it appears that county board filers will be protected from losing their claims if their adversary files at the Tax Court and they fail to file a timely counterclaim. You can read the full opinion here:
30 Journal Square Partners, LLC v. City of Jersey City
Stay tuned for parts 2 and 3, which involve a trial encompassing seven years of appeals, and the reconsideration of a reconsidered decision!
It's been an interesting year for New Jersey real estate. Retail and office markets are hard hit by lockdowns and the introduction and ongoing appeal of remote work, and warehouse is the big winner with asking rents at an all time high. What about the residential market for first time homebuyers, or those with newfound freedom to move farther from a workplace? In a word: crazy.
In prime areas, homes hitting the market are snapped up in days or even hours. Bidding wars are common if not the rule, and sellers have almost unilateral bargaining power in negotiating key contract provisions, such as home inspection, mortgage and appraisal contingencies.
How does this translate into a property tax problem? Under normal circumstances, the sale of real property can't be the sole basis to trigger an assessment increase in New Jersey. That's good news when prices are inflated due to bidding wars and high demand, but there's a catch.
Often, if a seller has made significant updates to the home, or if the property in question is a "flip", or a home purchased and renovated within the last few years, the tax assessor has the freedom to increase the assessment on the basis of the improvements and not run afoul of the prohibition on sale-related increases. Even if there's a long lapse in time between the improvements and the sale, many assessors will still increase the assessment after the sale.
As a result, many homebuyers may see surprising increases in their property tax burden next year or even added assessments. Unfortunately, when the sale price of the property is at or above the new assessment, chances of obtaining tax relief by way of assessment appeal are not clear cut.
The best plan is to get informed during the buying process and budget/buy accordingly. If you are looking to buy, we can help you to determine if an assessment increase is a possibility for the home you're considering. If you see or have seen a tax increase after your purchase already, you can contact us for a complimentary evaluation of your situation.
In a recent case decided by the New Jersey Tax Court, a municipality asked for reconsideration of a decision reducing a commercial property's assessment. The property in question was a mixed-use retail and warehouse building, with some mezzanine space in both the retail and warehouse areas. The main issue on reconsideration involved whether the Tax Court should have included the value-in-exchange of the mezzanine space value in the rent for gross leasable area, or given it a separate rent. Since there was no evidence of the value of the mezzanine, argued the municipality, the Tax Court had to affirm the assessment. The Tax Court rejected this argument, finding that the mezzanine space was properly included in the rental value of the main area.
However, this is a case where the issue isn't really the issue. In general, reconsideration motions are a long shot, and not undertaken lightly. In this case, at the time of the trial, the town withdrew its counterclaims and rested on the assessment without presenting any affirmative evidence. This wasn't necessarily the plan, as they had an appraiser present at trial and ready to testify to an appraisal report. Was it a good idea to rest on the assessment? With the number of tax appeals and the cost of commercial appraisals, balancing the risk of resting on the assessment or presenting affirmative evidence is a delicate decision for a town attorney that can cut both ways. Let's explore that issue a little further; but first, let's take a step back.
In a normal tax appeal, the burden of proof rests on the appealing party. That means it's the party that wants to see the assessment changed (usually the taxpayer) who has to provide proof that the assessment is wrong. That proof typically comes in the form of an appraisal and the testimony of a duly accredited appraisal expert. The defending party, on the other hand (usually the municipality), can present evidence of value, but they're not obligated to do anything. Rather, they're entitled to rely upon a legal construct typically referred to as the "presumption of correctness" to which municipal assessments are entitled. This presumption operates on the assumption that municipal officials do their jobs correctly, and therefore the assessment should be right. The defender of the assessment also has the added protection of another hurdle to changing the assessment - a range of value in non-revaluation years where, if the Tax Court or Board of Taxation finds value in that range, the assessment is affirmed. This range of value, set by statute and commonly called the "corridor," allows assessments to be imprecise, but still not subject to revision. Finally, the Tax Court has become increasingly demanding in recent years, making it difficult for appealing parties to carry their burden of proof to alter the assessment in question.
With these legal protections for the assessment, it's easier to see why a defending municipality may choose not to get an appraisal. First, if they have a lot of appeals to defend, the cost of expert reports and testimony can explode, and it might even cost the town less to have a judgment entered than get an appraisal in some cases. Second, the court may not find value if there are significant gaps in the taxpayer's proofs; it's not unheard of for the town's appraiser to fill those gaps with their testimony and enable the court to reach value if they testify. Finally, it's also possible for the town's expert to find value below the assessment. This last scenario raises some difficulty for the town; while they may want to preserve the tax revenue, the town can't simply sit on an appraisal substantially below the assessment and push for the taxpayer's case to be dismissed.
On the other hand, the court may find its way to value without the town's proofs. Those proofs, if entered into the trial record, might increase the court's value conclusion and even potentially sustain the assessment. If the town has already expended the funds for an appraisal, and that appraisal supports or exceeds the assessment, it may not be worth the risk of having the Tax Court bridge the gaps in the taxpayer's appraisal unexpectedly and result in an adverse decision.
Of course, if the case is a residential matter, the taxpayer hasn't retained an expert, or retained an expert unfamiliar with property tax practice in NJ, it's not a great risk. Particularly in smaller cases, the cost of an appraisal, expert or assessor testimony and trial preparation by the attorney may vastly outweigh the cost of any judgment. However, at the end of the day, deciding whether to rest on the assessment is a litigation strategy that demands careful consideration in any case.
Read the Tax Court's opinion here.
On March 19, in light of the COVID-19 outbreak and the resulting public health emergency, the Chief Justice of the New Jersey Supreme Court entered an order extending the filing deadlines for 2020 property tax appeals with the County Boards of Taxation and the New Jersey Tax Court. Instead of April 1, 2020, the filing deadline has been extended to the *later* of either a) May 1, 2020, or b) 30 days after Governor Murphy declares and end to the state of emergency in effect under Executive Order 103. This order does *NOT* toll or extend the statute of limitations for deadlines that have already passed, e.g. the January 15th deadline for Monmouth County Board of Taxation appeals. The March 19th Order is accessible here:
March 19 Order
Subsequently, the Supreme Court entered an Omnibus order confirming this order, accessible here:
On April 7, the Court entered a further clarifying order, confirming that the filing deadline extension applied not only to original appeals of matters to the county boards of taxation and the Tax Court, but also appeals from judgments of the county boards of taxation participating in the Assessment Demonstration Program (at this time, only Gloucester and Monmouth) retroactive to the Court's March 19th Order. The clarifying order is here:
As of now, the State of Emergency declared by Governor Murphy will expire on
It's been a big week for taxpayers in New Jersey - three significant property tax cases came down from the courts in the last week. First, the Appellate Division granted a property tax exemption to the operators of an upscale restaurant on a university campus, reversing the Tax Court's decision below granting summary judgment to the municipality. A published opinion involving a tax case is rare; one reversing the Tax Court even more so, so it's worth taking notice. It's interesting to see the Appellate Division balancing the interests between state higher education and the needs of local government.
Next, the Tax Court re-affirmed the protections afforded by the Freeze Act, ruling that a sale of the property was not grounds for finding a change in value that would void the Act's protection per se. As in many cases, some of the most interesting comments are reserved for footnotes. It's good that taxpayers can rely on the Freeze Act with confidence, particularly given the rise in rolling reassessments and more frequent revaluations. If the Act applies, the town really has a hurdle to get over to prevent its application.
Finally, the Tax Court gave a massive reduction in assessment to the owners of a former corporate headquarters, finding that the property wasn't special use and could be valued as a single-tenant office building. It goes to show that if you can bring the court with you in your highest and best use determination, you have a good opportunity to win your case. It reminded me of a similar case with far more divergent opinions of highest and best use involving a Jersey Shore hotel. Curious folk can read that case here.
What does all this mean? Call me biased, but I think it means it's a good time to make sure you're only paying your fair share of New Jersey property taxes.
Here are the opinions:
Gourmet Dining, LLC v. Union Township et al
160 Chubb Properties LLC v. Township of Lyndhurst
ML Plainsboro LTD Prntshp/Gomez v. Township of Plainsboro
Both in the trial courts and in the appellate division, oral argument is an opportunity to marshal your best arguments, look the court in the eye and make the case why your client should prevail. However, in a time when it seems that every cost is closely scrutinized, is there still a place for a trip to court to say something already captured in writing? In short, yes. A recent published appellate decision affirmed both the explicit and implicit importance of oral argument.
In this tax foreclosure action, the trial court denied a prior lienholder's request for oral argument in opposition to a dispositive motion to enter final judgment. The trial judge denied the request with a one-sentence explanation, relying on an opinion involving a rule governing family matters. The appellate court found that such a request should have been granted as of right for the dispositive motion at issue, and reversed the trial court's decision.
In an interesting twist, the defending lienholder raised a second basis for reversal for the first time at oral argument. While the court declined to reverse on that issue, the fact that it was mentioned in the court's opinion at all suggests that it had some persuasive force. While it's better to brief every point of argument if you can, better raise it late at oral argument than never. Would the same result have be reached here without that issue being raised at argument? We'll never know, but it's still a good reason to request oral argument.
The decision can be accessed here:
CLARKSBORO, LLC VS. MARK KRONENBERG, ET AL. (F-031537-16, MORRIS COUNTY AND STATEWIDE
Every year, owners of commercial and multifamily residential real estate in New Jersey may receive letters from their municipal assessors requesting income and expense information. These information requests, commonly called “Chapter 91” requests after the law authorizing them, are permissible and there may be consequences for failing to respond. The question becomes – how should a property owner respond to the tax assessor’s request for income and expense information?
One important consideration is the potential consequences of ignoring the request. Failing to respond to a Chapter 91 request may result in a severe limitation on your ability to challenge the property’s tax assessment in the year after the request is made. This is crucial to remember, particularly if your town is planning a revaluation. If your property is over-assessed in the revaluation, you may lose the ability to effectively challenge that figure for a year. Even if your town isn't planning a revaluation, with ever increasing property tax bills, losing the ability to appeal even one year can have significant tax consequences.
Another important consideration is how you should respond to the request. Many Chapter 91 requests are looking for every detail possible about your property. What is really required for a sufficient response? Is your property actually owner occupied, or will the Tax Court consider it to be income producing? Is the request actually a valid Chapter 91 request? The answers to these questions will determine whether you can safely shortcut a burdensome request, or whether you need to provide more information.
Finally, always remember the time limitation. There must be some response within 45 days of the date of the Chapter 91 request. If the final response can’t be provided within 45 days, there must be a good reason. That reason must also be communicated to the tax assessor within those 45 days.
Ultimately, how you handle your tax assessor’s request for income and expense information could be determinative as to your tax liability for the following year. The Englert Law Firm offers no-cost consultation on responses to Chapter 91 requests to help property owners respond efficiently while preserving their appeal rights.
In a recent unpublished opinion, the Appellate Division of the New Jersey Superior Court affirmed the dismissal of a complaint seeking leave to impose omitted assessments on Riverview Medical Center, now owned by Meridian Health Corporation, in Red Bank, New Jersey. This unusual situation grows out of a 2015 Tax Court decision entitled AHS Hospital Corp v. Town of Morristown. In that case, an exempt hospital had its exemption revoked due to an alleged change in use and lost its challenge to the assessments imposed by the municipality thereafter.
In this case, the municipality filed petitions at the county board of taxation, and later at the Tax Court, seeking to impose omitted assessments for 2014 and 2015. Notably, the petitions were filed after the AHS Hospital Corp. opinion was issued, after the 2015 deadline for filing appeals. The Tax Court found that the omitted assessments would be improper as there had been no showing of a change in use, and no timely appeals had been filed.
The Appellate Division affirmed for substantially the same reasons as the Tax Court. The Appellate Division agreed that the Borough's request for discovery to explore the property's use was a "fishing expedition", and that they had no evidence of a change in use.
While this ruling is helpful for hospitals in that it affirms the requirement of a predicate change in use to trigger a removal of an exemption and subsequent omitted assessment, the underlying rationale for the denial of an exemption announced in AHS Hospital Corp. is unchanged. Nevertheless, the procedural and process safeguards should not be overlooked. The Appellate Division's decision can be accessed below.