Archive for the tag 'Tax Appeals'

Contract purchaser cannot file tax appeal

SteveK November 17th, 2012

Presiding Tax Court Judge DeAlmeida rendered a very interesting decision in Omega Storage v Lawrence Township. In this case of first impression, Judge DeAlmeida ruled that a contract purchaser did not have standing to file a tax appeal.
In other words, a party who is the purchaser under a contract of sale of a property which did not close before the filing of the complaint did not have standing to file the complaint and the case was dismissed. In Omega Storage, at the time the Complaint was filed on March 29, 2012, the Plaintiff did not yet own the property and was only a contract purchaser. The Court held that being the contract purchaser was not enough of an interest in the property to file a tax appeal.
This certainly will have an effect upon appeals going forward. I am sure some of you will recollect appeals over the years by contract purchasers who filed petitions or complaints before they owned the property, but, before the hearing or trial acquired at closing the property. Based upon our reading of this new case, these petitioners or plaintiffs cases should be dismissed for lack of standing.
The case can be reviewed in detail at the Tax Court’s web site as follows:

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

 

 

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Semi Private Golf Course Assessment is Affirmed by Tax Court

SteveK December 29th, 2011

In an recently reported decision the Tax Court affirmed the assessment of a semi private golf course in Gale & Kitson Fredon Golf v Township of Fredon.
Fredon Township conducted a revaluation and the owners of the golf course appealed the new assessment. After trial, the Tax Court, however, did not make a determination of the market value of the golf course. Instead, Judge Vito Bianco held that neither of the parties’ expert appraisers met the burden of proving any adjustment to the assessment at issue was warranted. Stated another way, Judge Bianco found deficiencies in both appraisers opinions to the point of not being able to arrive at anything other than the existing presumed valid assessment.
The taxpayer’s expert used the income capitalization approach in valuing the property. The Court found numerous deficiencies in the development of the capitalization rate. But, more importantly, Judge Bianco held that the cost approach was a more appropriate valuation method than the income capitalization approach for a semi private golf course.
The revaluation firm was the appraisal expert for Fredon and used the cost approach. However, the Court found deficiencies in the land sales used by their appraiser. The Court criticized the use of deed restricted land sales to public and not for profit entities, and held in part that these comparable properties were therefore not of the same highest and best use as the subject golf course.
As stated at the outset, this case is unreported and of limited precedential value. That being said, we have little in the way of any Tax Court decisions on valuing golf course properties. We are also awaiting a decision on another golf course case from Presiding Judge DeAlmeida. It will be interesting to see if Judge DeAlmeida agrees with Judge Bianco’s analysis that the cost approach is the correct valuation method in that golf course case.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

 

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Too Many Appraisals, Too Little Credibility A Cautionary Tax Court Tale

SteveK December 6th, 2011

The Tax Court in a recent unreported decision allowed evidence, including adjustments to comparable sales by a pro se taxpayer at trial. However, the case, Kula v. Township of Downe, provides a more important strategic lessons to municipal attorneys and tax assessors. Sometimes it is better not to put a case on at all.
The pro se taxpayer did not have an appraiser. But, unlike the town’s appraiser she relied upon comparable sales in the subject municipality. A lay person generally is not permitted to provide expert testimony. But, it appears that the lack of credibility of the municipal appraiser may have influenced the court’s decision to reduce the assessment on the property and give more than the usual weight to valuation evidence provided by a lay person.
The pro se taxpayer effectively cross examined and apparently destroyed the town’s appraiser. The taxpayer was able to show that the appraiser for the municipality produced three different appraisal reports, first, at the County Tax Board, then secondly in Discovery, and then a third, at trial at the Tax Court. The appraiser made widely different adjustments on the same properties in each report. In addition, the appraiser used sales outside of the subject municipality. The Court therefore found that the town’s appraiser lacked credibility and relied upon the pro se taxpayer’s comparable sales and even her adjustments.
It is, of course, easier to criticize trial strategy after a case is over. But, perhaps in this instance, it would have been better for the town to leave well enough alone and not put on its case at all.
The case can be found at the Tax Court web site: http://www.judiciary.state.nj.us/taxcourt/tax_unpublished/13984-09opn.pdf

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

 

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Martin Allen obtains dismissal of tax appeal where property owner did not provide information in response to a “may dismiss” letter.

SteveK October 20th, 2011

In James Dale Enterprises v. Berkeley Heights, 26 N. J. Tax 117 (Tax 2011), Martin Allen, chairman of the firm’s Real Estate Tax Department successfully argued that a tax assessor’s request for income and expense information pursuant to Chapter 91 (N.J.S.A.54:4-34) does not require an unequivocal statement that a tax appeal will be dismissed. The inclusion of a copy of the law with the request is adequate notice to the property owner of the possible consequences of non-compliance. The assessor’s letter to the property owner stated that a failure to provide income and expense information “may” result in the taxpayer’s tax appeal being dismissed.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.


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Martin Allen Panelist for Upcoming Municipal Tax Appeal Programs

SteveK August 18th, 2011

Martin Allen, partner in the firm, will be a panelist on “A Mock County Board Hearing” at the Annual Meeting of the  New Jersey Association of County Tax Boards. Friday, September 2, 2011 at 9:00 am at The Grand Hotel, Cape May. Martin will be acting the role of municipal defense attorney on the panel.

Martin will also be participating in a similar program at the League of Municipalities convention on Thursday, November 17th at 9 am  at the Convention Center in Atlantic City.

The title of that program is: “League Tandem Session with the Association of Municipal Assessors of New Jersey and the New Jersey Institute of Local Government Attorneys: Tax Appeals – Trials and Tribulations.” The League program is described as: “Being ‘Trial-Ready’ is a crucial strength in the appeal process as, unfortunately, not all cases are resolved through ‘negotiation’. Join this experienced panel and explore the process through a mock trial which resolves the appeal of a ‘trophy’ single family residence.” Martin is one of the experienced panelists for this program.

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Tax Court Developments

SteveK April 12th, 2010

In Davanne v. Edison, (see previous blog entry of Feb. 19,2010) Martin Allen successfully argued before the New Jersey Supreme Court that the 8th Amendment prohibition against unreasonable and excessive fines does not apply to a dismissal of a tax appeal because of an income producing property owner’s failure to respond to a request from a tax assessor for income and expense information.

More recently, in Stellakis v South Plainfield, an unreported decision of the Tax Court, we argued, and the Court determined that taxpayer’s counsel failed to present any evidence at the County Tax Board despite calling the Assessor as his witness and referring him to comparable sales referred to in a settlement letter. The Tax Court, after reviewing an audio recording of the County Board hearing, held that the hearing was a sham and dismissed the Tax Court appeal pursuant to N.J.S.A. 54:51A-1(c), which precludes review by the Tax Court if the County Board matter was dismissed for lack of prosecution.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

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Firm Argues That Hospital’s Offsite Physical Therapy Services at “Wellness Center” Is Not Entitled to Exemption

SteveK February 19th, 2010

Martin Allen recently argued before the NJ Appellate Division in the case of Hunterdon Medical Center v. Readington. In that case, the N J Supreme Court reversed in part and remanded the matter to the Tax Court to determine if the physical therapy services provided at the off site heath and wellness center owed by the hospital are exempt from taxing under N.J.S.A. 54:4-3.6. On remand the Tax Court agreed with the argument that in the particular facts of the case, the portion of the property where the physical therapy was conducted is taxable. The hospital has appealed that decision which was recently presented to the Appellate Division.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

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Martin Allen speaks to Monmouth County Tax Assessors

SteveK February 19th, 2010

Mr. Allen appeared on February 4 as a speaker at the Monmouth County Assessor’s 4th Annual Conference. The topic of his talk was the “Legal Pathway through the Appeal Process” in which he discussed the procedural defenses and technical issues that may be employed by a municipality in a tax appeal. Mr. Allen will be speaking at the New Jersey Assessor’s Association Conference at Forsgate Country Club in Monroe Township on March 18th.

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Tax Court Decision Holds that Taxpayer Counsel May Not Communicate with Assessor Without Consent of Municipal Attorney

SteveK February 19th, 2010

Martin Allen of the firm recent obtained a decision from the Tax Court in Kolvites v Manville (unreported), which has become a case frequently cited for its holdings. The Court held that a case cannot be dismissed at the County Board for lack of prosecution if the taxpayer’s attorney on the day of the hearing faxes a proposed stipulation of settlement to the Tax Board because that action is not “deliberate and contumacious.” Also important was the Court’s finding that the taxpayer’s attorney’s actions may have implicated the “long standing rule that an attorney may not communicate directly with parties represented by counsel without the permission of that counsel. R.P.C. 4.2.” The Presiding Judge of the Tax Court, in his decision, stated:

“While it may be common,   . . . , for taxpayers’ counsel to discuss settlement with tax assessor, the court doubts that such negotiations are conducted without the prior approval of municipal counsel. If the court is mistaken in this regard, taxpayers’ counsel would be wise to modify this practice. Direct communication with a party who is represented by counsel with out first obtaining the consent of that counsel runs contrary to the rules of professional conduct applicable to all attorneys.”

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

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Martin Allen Argues Tax Appeal Issues Before the NJ Supreme Court

SteveK February 19th, 2010

Martin Allen recently argued before the New Jersey Supreme Court in Davanne v. Edison.  The issue of the case is whether the dismissal of a tax appeal pursuant to Chapter 91 (N.J.S.A.54:4-34) is unconstitutional pursuant to the 8th Amendment of the U S Constitution and its N.J. equivalent as an “excessive fine.” N.J.S.A.54:4-34 provides that a tax assessor may request income and expense information from income producing property owners. If the owner fails to respond, it is precluded, by the Chapter 91 amendment to that law, from filing a tax appeal for the next tax year, subject to its testing the resulting assessment’s reasonableness in a hearing. The taxpayer in this case argued that any difference between the assessments put on the property by the assessor and its opinion of the correct assessment would result in overpayment of taxes that are unconstitutional excessive fines. Mr. Allen argued that taxes are not fines, that the law in question was a procedural mechanism for calculating a tax, that the law provided a due process mechanism for testing the reasonableness of the resulting assessment and therefore the law was constitutional. He also argued that the taxpayer failed to take advantage of a reasonableness hearing, and therefore waived any constitutional argument.

The argument can be seen at http://www.judiciary.state.nj.us/webcast/archive.htm

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq

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