Gamma-Upsilon Alumni Association of Kappa Sigma, Inc. v. New Brunswick City

*
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINION
____________________________________
GAMMA-UPSILON ALUMNI ASS’N OF : TAX COURT OF NEW JERSEY
KAPPA SIGMA, INC . :
: DOCKET NO. 007576-2017
Plaintiff, :
:
v. :
:
CITY OF NEW BRUNSWICK, :
:
Defendant. :
___________________________________ :
Decided: April 26, 2018
Joseph G. Buro for plaintiff
(Zipp Tannenbaum Caccavelli, L.L.C., attorneys).
Joseph D. Palombit, and Emil H. Philibosian for defendant
(Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys).
SUNDAR, J.T.C.
This opinion decides defendant’s motion to dismiss plaintiff’s complaint. Defendant
(“City”) urges a dismissal on grounds plaintiff failed to respond to the City’s assessor’s request
for income and expense (“I&E”) information of plaintiff’s property (“Subject”) under N.J.S.A.
54:4-34 (commonly known as Chapter 91).
Plaintiff does not dispute its non-response. However, it contends that the City’s motion
should be denied for several reasons. One is that the Subject cannot be income-producing because,
among others, plaintiff is organized, and recognized as a federally tax exempt fraternal
organization under I.R.C. § 501(c)(7). Another reason is that the City failed to file an answer to
plaintiff’s complaint, and thus, failed to plead the non-response as an affirmative defense,
therefore, has waived its right to litigate this issue. Plaintiff further argues that the City’s motion
should be denied because (1) it is barred by the square corners doctrine; (2) it is substantively a
Approved for Publication
In the New Jersey
Tax Court Reports

2
summary judgment motion, which must nonetheless be denied because it did not contain a
statement of undisputed material facts; (3) it fails to make a prima facie case for dismissal because
it failed to allege, with support, that the Subject was income-producing; and (4) it is premature
since plaintiff must be allowed discovery to determine whether the third party revaluation
complied with the statutory requirements of Chapter 91.1
For the reasons following, the court finds the Subject to be income-producing for purposes
of Chapter 91, and finds no procedural deficiencies as barring the grant of the City’s motion.
Plaintiff is however entitled to a reasonableness hearing under Ocean Pines, Ltd. v. Borough of
Point Pleasant, 112 N.J. 1 (1988).
FACTS
The Subject is a fraternity house located at Rutgers University. It is owned by plaintiff, a
non-profit fraternal organization which is exempt from federal income tax under I.R.C. §
507(c)(7). It is used for fraternity purposes by members, who are students of Rutgers University.
In addition, it serves as housing for several members of the fraternity.
Plaintiff’s counsel described the Subject as akin to a college dormitory with common areas,
such as a lobby, and bedrooms which could be occupied on a shared or single occupancy basis.
Plaintiff’s counsel also conceded that the fraternity members who reside at the Subject pay rent
pursuant to lease agreements with plaintiff, thus, the Subject earned rental income attributable to
real property.
On or about June 1, 2016, the City’s assessor mailed to plaintiff, by certified mail, return
receipt requested, a Chapter 91 request for I&E information for the “last year,” or the prior calendar
year, or if plaintiff was the owner for only a part of the year, then to so indicate, and to provide
1 The City underwent a district-wide revaluation in 2016, effective for 2017.

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such information for the period of the ownership. The return receipt for the certified mailing was
acknowledged with a signature (and a printed name). It is undisputed that plaintiff received the
Chapter 91 request and failed to respond.
Plaintiff filed a complaint challenging the Subject’s 2017 assessment of $1,488,700 on or
about April 28, 2017. The City’s motion to dismiss the complaint followed.
ANALYSIS
N.J.S.A. 54:4-34 requires a property owner to “render a full and true account of” the
property owner’s “name and real property and the income therefrom,” if the property is “income-
producing.” Failure or refusal to respond within 45 days of the Chapter 91 request allows the
assessor to reasonably determine the property’s “full and fair value” based upon any information
he or she has. A non-response also bars the property owner from appealing that assessment. Ibid.
The justification for such a consequence is that the I&E information of an income-
producing property enables the assessor to set the initial assessment of such property, which would
be significantly hampered if it is received only after the assessment is on appeal. See Ocean Pines,
Ltd., 112 N.J. at 7-8 (“If the economic data are to be of any use in the valuation process, they must
be submitted in timely fashion to the assessor, and not to a tribunal on a subsequent appeal.”).
Further, the assessor would be completely “unprepared to challenge or even evaluate the
information provided by plaintiff” if the assessor were to be confronted with the economic
evidence of the value of the property for the first time on the appeal of the property. Id. at 8.
Thus, the statutorily provided appeal limitation for income-producing property ensures
compliance by its owner. Nonetheless, the owner is entitled to a hearing as to the reasonableness
of the assessment in light of the available data and methodology used by the assessor. Id. at 11-12.

4
Chapter 91 does not provide any exceptions to, or exemptions from, the requirement to
respond to a valid request. Rather, it only allows for an extension of time to provide the response.
See N.J.S.A. 54:4-34 (“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.”).
However, under few circumstances, precedent has permitted an owner to escape the
consequences of a non-response, i.e., an appeal being limited to a reasonableness hearing. One
exception is if the property is not income-producing, which is generally the case where the property
that is used for commercial purposes (including retail), is owner occupied. H.J. Bailey Co. v.
Township of Neptune, 399 N.J. Super. 381, 382-83 (App. Div. 2008) (“Chapter 91’s appeal-
preclusion provision and the limited appeal process fashioned . . . in Ocean Pines apply solely to
income-producing properties,”); see also Monsanto Co. v. Township of Kearny, 8 N.J. T Tax 109,
111 (Tax 1986) (an “owner-occupied” property is not “income producing” therefore, the
consequences of a non-response do not apply).2
As noted earlier, plaintiff opposed the City’s motion on several grounds, some for
substantive reasons, and most for procedural deficiencies. The City refuted each argument as
having no support in the law. Each argument, and its disposition, is addressed below.
(A) Is the Subject Non-Income-Producing because Plaintiff is Organized as an I.R.C. § 501(c)(7)
Organization?
The answer is no. As noted above, the owner of a non-income-producing property suffers
no consequences for failing to respond to a Chapter 91 request, thus, may “ignore” the request
2 A non-responsive property owner of an alleged non-income producing property risks the loss of
an appeal if the property used to be income-producing, or the owner was under a “mistaken belief
that his property was non-income-producing,” or, the “property was, in fact, income-producing.”
H.J. Bailey Co., 399 N.J. Super. at 389-90 (citations omitted).

5
“with impunity.” H.J. Bailey Co., 399 N.J. Super. at 389. “Income” for purposes of the “income
producing” qualification of Chapter 91 is rental income, i.e., income attributable to the use of real
property, as opposed to business income, or income from business operations. Great Adventure,
Inc. v. Township of Jackson, 10 N.J. Tax 230, 232-34 (App. Div. 1988) (the “term income-
producing property is generally limited to property producing rental income,” and for charges
which are “for the use of the property in any tenancy sense”).
Plaintiff concedes that for the period encompassed by the Chapter 91 request, it had lease
agreements with the fraternity members who resided in the Subject, and received rental income
from its members (students) pursuant to those agreements. Thus, there can be no question that the
Subject generates income from rent, which is attributable to the use of real property, and the
fraternity members, as tenants, are entitled to continuous and exclusive possession and use of the
Subject. This undoubtedly renders the Subject income-producing. See Southland Corp. v.
Township of Dover, 21 N.J. Tax 573, 589 (2004) (“The distinction drawn by the courts in defining
income-producing . . . is whether the fee paid . . . is for the continuous and exclusive use of a
specific portion of the land and buildings . . . or for the brief right to enter the land and buildings
with others on a non-exclusive basis, more akin to a license. If the owner is paid for access to a
property to which others have access . . . the property [is] not income-producing . . . . [H]owever,
payment . . . for continuous and exclusive use of a portion or all of the property . . . [renders] . . .
the property . . . income-producing for purposes of Chapter 91.”). Thus, although in addition to
rental income, plaintiff may receive other income (e.g., dues for the privilege of being a member
of, and having access to, the Subject for social gatherings and other functions, on a non-exclusive
basis), its concession that it receives rental income suffices for purposes of deciding that the
Subject is income-producing.

6
Plaintiff argues that its receipt of rental income is irrelevant because the focus of the inquiry
should be the “character” of a property as income-producing, which would result when a property
is “created primarily to produce monetary income.” (quoting the definition of “income producing
property” in Appraisal Institute, The Dictionary of Real Estate Appraisal, 99 (5th ed. 2010)). Here,
plaintiff is organized under I.R.C. § 501(c)(7), which applies to clubs “organized for pleasure,
recreation, and other nonprofitable purposes.” Thus, plaintiff argues, in keeping with this federal
statute, the Subject is foreclosed from being primarily created to produce monetary income, as
evidenced by the fact that its tenants are restricted to fraternity members who occupy the Subject
at allegedly “nonmarket rents.”
The argument is unpersuasive. The federal income tax code does not control the application
of Chapter 91. Thus, being granted status as a federal income tax exempt entity does not convert
the Subject to a non-income-producing property for purposes of Chapter 91. Indeed, even where
a property may be exempt from local property tax, the owner is not immune from the requirements
of Chapter 91 because such exempt property must nonetheless be valued, and must have an
assessment (but not have the consequent tax imposed and collected). See Cascade Corp. v.
Township of Middle, 323 N.J. Super. 184, 188, 190 (App. Div. 1999) (“Chapter 91 requires
[economic] data with regard to all income-producing property, irrespective of whether it is entitled
to exemption from taxation,” and the statute does not accord “any special status” to owners of
property that may be ultimately exempt from local property taxation) (citation and internal
quotation marks omitted). The court observed that the statute’s “language . . . requiring disclosures
in respect of all ‘income-producing property’ must logically be interpreted literally to include even
tax-exempt property that produces income (as distinguished from profit).” Id. at 191.

7
Thus, regardless of plaintiff’s tax-exempt status under I.R.C. § 501(c)(7), the Subject is
properly deemed income-producing for purposes of Chapter 91.3 See also Southland, 21 N.J. Tax
at 589 (when “the property owner . . . receives money from its franchisees for the continuous and
exclusive use of its real estate . . . [then a] tenancy was created and the money received is, at least
in part, rental income and therefore, the subject property is income producing for purposes of
Chapter 91.”).
Plaintiff next argues that the Subject is not an income-producing property because this type
of property is typically valued under the income approach and in which an investor seeks a return
of investment.4 Rather, it is akin to special purpose property, for which the cost approach method
of valuation is more appropriate. See TD Bank v. City of Hackensack, 28 N.J. Tax 363, 379 (Tax
2015) (special purpose properties are “(1) unique and specially built for the purpose for which they
are used, (2) without a market or comparable sales, (3) unlikely to be converted without substantial
economic expenditure, and (4) reasonably expected to be replaced or reproduced if destroyed.”)
(citations omitted). Examples of special purpose properties include “manufacturing plants,
railroad sidings, research and development properties, museums, schools, houses of worship,
theaters, and sports arenas.” Ibid. (citation omitted). However, a property will not be considered
special purpose property “where it possesses certain features which, while rendering the property
suitable to the owner's use, are not truly unique.” Id. at 380 (citation omitted).
3 Plaintiff provided no proof for its contention that the fraternity members pay “nonmarket rents.”
Regardless, this allegation is of no moment for purposes of Chapter 91. See SKG Realty Corp. v.
Township of Wall, 8 N.J. Tax 209, 211 (App. Div. 1985) (rental income from a related entity, even
if not at market, is no excuse for a non-response, since “[t]ransactions among related corporations
are not privileged” or exempted from Chapter 91).
4 The City refuted this allegation noting that plaintiff had properly responded to a Chapter 91
request for tax year 2014.

8
Plaintiff provided no evidence to support its theory that the Subject is unique, or has limited
marketability. The only information conveyed to the court was that the Subject is akin to
dormitory-style housing, with common areas accessible by non-resident fraternity members. No
evidence was submitted to show that the Subject could not easily be converted into any type of
residential use, without its demolition or large capital investment by an investor, or that it would
have no buyers. Therefore, the court rejects plaintiff’s theory that the Subject should be considered
a special purpose property as to which the income approach would not be the appropriate valuation
method.
Similarly, that the Subject may be valued by using a methodology other than the income
approach does not require a conclusion that a necessary corollary is that the Subject is not income-
producing. This argument was rejected in Rolling Hills of Hunterdon L.P. v. Township of Clinton,
15 N.J. Tax 364, 368 (Tax 1995) (“The income approach may ultimately not be chosen to value a
particular nursing home, . . . does not mean that nursing homes are not income-producing
properties.”). That sound reasoning applies here as well.
In sum, the court finds that the Subject was income-producing for purposes of Chapter 91.
(B) Should a Non-Response to a Chapter 91 Request be pled in an Answer as an Affirmative
Defense?
The answer is no. The parties agree that a claim of failure to respond to a request for
income information under Chapter 91 is an affirmative defense. They part ways as to the procedure
in which the “defense” should be raised. Plaintiff argues that Chapter 91 is no different than any
other civil affirmative defense, therefore, must be pled in an answer to its complaint, or deemed
waived, as required, and provided, by the Rules Governing Civil Practice (hereinafter “Part IV”).
See R. 4:5-4; 4:6-2; 4:6-7; Brown v. Brown, 208 N.J. Super. 372, 384 (App. Div. 1986) (“It is well
settled that an affirmative defense is waived if not pleaded or otherwise timely raised.”) (citing R.

9
4:6-7). Plaintiff maintains that as is the purpose of any affirmative defense, it must be put on
notice that its complaint may be dismissed because of an alleged non-response to a Chapter 91
request. Per plaintiff, therefore, the City must file an answer within 35 days of the service of the
complaint under R. 4:6-1 and specifically plead a Chapter 91 violation s an affirmative defense.
Only if such an answer is filed with the affirmative defense of the Chapter 91 non-compliance,
plaintiff argues, can the City then move to dismiss the complaint, see e.g. R. 4:6-3, but within the
time limits set forth in the Rules Governing Practice in the Tax Court (hereinafter “Part VIII”),
specifically, R. 8:7(e).
The City contends that such a reading not only contradicts R. 8:3-2(b) (which allows taxing
districts the option of filing an answer) and R. 8:7(e), but also severely prejudices all taxing
districts, which have thus far relied upon R. 8:7(e) as controlling the practice and procedure for
filing Chapter 91 motions since the rule’s inception in 1998. It also maintains that regardless of
being viewed as an affirmative defense, it cannot be deemed waived because a Chapter 91 violation
is jurisdictional.
The scheme of Part VIII does not permit the conclusion plaintiff desires. First, while it is
true that Part VIII seeks to emulate, to the extent possible and applicable, Part IV, it is not a
wholesale adoption. As pointed out,
[t]he basic scheme of Part VIII is to conform the practice and
procedure of the Tax Court as nearly as practical to that applicable
to all other trial courts in the State and yet to retain, insofar as
possible, a high degree of expedition in the initiation, progress and
determination of the matters constituting the business of the Tax
Court. These rules are also designed to prescribe with particularity
the practice of the Tax Court in respect of those procedural
considerations unique to it. Thus, to a large extent the rules of Part
IV have been incorporated by reference where appropriate, and the
implicated rules of general application were also amended to include
and provide for the Tax Court.

10
[Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 8:1
(2018) (emphasis added).]
Those “implicated rules” include certain Rules of General Application, specifically, R. 1:1-1, 1:1-
2, 1:2-2, 1:2-4, 1:12-3, 1:30-5, 1:32-1, 1:33-1, 1:34-2, 1:35-1, 1:37-1, 1:37-3; the Rules Governing
Appellate Practice, specifically, R. 2:2-3, 2:4-1, and, Part IV, specifically, R. 4:1, 4:3-4 and 4:69-
1. Pressler & Verniero, cmt. on R. 8:1.
Rule 4:1, titled “Scope of Rules” similarly states that “[t]he rules in Part IV, insofar as
applicable, govern the practice and procedure of civil actions in . . . the Tax Court except as
otherwise provided in . . . Part VIII.” See also Pressler & Verniero, cmt. on R. 4:1 (the general
applicability of Part IV is subject to “contrary procedures . . . prescribed by . . . Part VIII”).
Pleadings under Part VIII for local property tax assessment complaints are distinctly
different from civil pleadings under Part IV. Specifically, while Part IV requires an answer be
filed to a complaint, see R. 4:5-1, Part VIII does not so mandate. See R. 8:3-2(b). In contrast, and
similar to Part IV, an answer is required for “State Tax Cases.” See R. 8:3-2(c). Thus, the
requirement under Part IV that a “responsive pleading” such as an answer must “set forth
specifically and separately a statement of facts constituting an . . . affirmative defense,” see R. 4:5-
4, does not abrogate or alter the permissiveness of filing an answer under Part VIII in local property
tax cases. If an answer is not required, then a deemed waiver of something required to be pled in
an answer is simply not implicated.
It is true that Part VIII also provides that “[i]f an answer is filed, it shall conform to the
requirements of R. 4:5-3.” See R. 8:3-6 (captioned “Answers”). Rule 4:5-3 however, only
provides instructions as to the form of an answer, i.e., state a defense to each claim in “short and
plain terms,” “admit or deny the allegations,” assert lack of knowledge or belief in the veracity of
the allegation, admit part of an allegation, and specifically deny the “designated allegations or

11
paragraphs.” It does not require that the answer include any affirmative defense. This is provided
for separately in R. 4:5-4.
Does the absence of an incorporation of R. 4:5-4 in R. 8:3-6 mean that the former is
applicable under the umbrella of the general applicability of Part IV, and by such extension, require
a conclusion that something not affirmatively pled should be deemed waived? In this particular
scenario, i.e., involving a Chapter 91 assertion, the answer is no. This is because, regardless of the
general applicability of Part IV, the scheme of Part VIII is “yet to retain, insofar as possible, a high
degree of expedition in the initiation, progress and determination of the matters constituting the
business of the Tax Court.” Pressler & Verniero, cmt. on R. 8:1 (emphasis added). Similarly, Part
VIII rules “are also designed to prescribe with particularity the practice of the Tax Court in respect
of those procedural considerations unique to it.” Ibid. (emphasis added).
Rule 8:7(e) is precisely one which falls outside the scope of the general applicability of
Part IV as to Chapter 91 assertions by a taxing district. First, the preface to the rule states that
while motion practice “shall be governed by the applicable rules in Part I and Part IV,” those rules
will not apply if “otherwise provided in Part VIII.” See R. 8:7(a).
Second, R. 8:7(e) describes “with particularity the practice of the Tax Court” as to the
procedure by which a Chapter 91 assertion is made (by motion). It crystalized the practice which
had existed as to Chapter 91 motions since 1979. The consequences for a failure to respond to a
Chapter 91 request for income-producing properties has been effective since 1979 (L. 1979, c. 91,
§ 1). Since then, the procedural mechanism for asserting a failure to comply with Chapter 91 was
by motion as evidenced by precedent. See e.g. Terrace View Gardens v. Township of Dover, 5
N.J. Tax 469, 470 (Tax 1982); SAIJ Realty Inc. v. Township of Kearny, 8 N.J. Tax 191, 193 (Tax
1986); Delran Holding Corp. v. Township of Delran, 8 N.J. Tax 80, 81 (Tax 1985); Southgate

12
Realty Assocs. v. Township of Bordentown, 246 N.J. Super. 149, 150 (App. Div. 1991). These
cases did not indicate any time limit as to the motion filing, nor a requirement that the same be
pled as an affirmative defense in an answer to a complaint. In 1998, R. 8:7(e) was adopted to
reduce this practice into a formal procedure to be governed by the court rules because a time limit
to file such motions was needed. See Township of Phillipsburg v. ME Realty, L.L.C., 26 N.J. Tax
57, 71 (Tax 2011) (“[T]he commentary of the Supreme Court Committee” indicates that the rule
“[s]ets time limitations on municipality’s obligation to file [a] motion to dismiss for failure to
comply with N.J.S.A. 54:4-34.”) (citations and internal quotation marks omitted).
Third, R. 8:7(e) assists the expeditious resolution of cases subject to such motion, i.e., the
“business of the Tax Court,” by imposing short, specific time limits for filing a motion (the earlier
of “180 days after the filing of the complaint,” or “30 days before the trial date,” unless the motion
claims that the response was “a false or fraudulent account” as to which the motion can be filed at
any time). In Paulison Ave. Assoc. v. City of Passaic, 18 N.J. Tax 101 (Tax 1999), the court
explained the salutary purposes of R. 8:7(e). There, the taxing district, which had filed a
counterclaim, filed an untimely motion to dismiss the complaint for failure to respond to a Chapter
91 request. The court held that the rule “simply imposes on the municipality time limitations for
enforcing the statute,” without which a property owner that had failed to respond to a Chapter 91
request “has no way of knowing whether the municipality will file its motion.” Id. at 109. Further,
it also “permits early disposition of the appeal” which would save “both parties . . . unnecessary .
. . time and expense, including the expense of appraisal reports, and enabling the court to avoid
unnecessary expenditure of its time and resources,” which in turn, allowed for an “orderly and
expeditious processing and disposition of litigation.” Id. at 110. See also ME Realty L.L.C., 26
N.J. Tax at 70-72 (court rules also ascribe to a “plain language” interpretation, thus, the 180-day

13
time limit is triggered from the filing of a complaint by a taxing district, not from the time the
taxpayer filed its counterclaim).
In sum, the court rejects plaintiff’s argument that compliance with R. 4:5-4 is a mandatory
condition precedent to a taxing district’s motion under R. 8:7(e).5 In light of this conclusion, the
court finds it unnecessary to address the City’s argument that a Chapter 91 violation is
jurisdictional, and therefore cannot be waived. But see Paulison, 18 N.J. Tax at 111-12 (Chapter
91 motions do not deprive the court of subject matter jurisdiction, therefore, the time limits in R.
8:7(e) do not “conflict with the general principle that objections to subject matter jurisdiction may
be raised at any time”).
Plaintiff also claims that without notice of a possible Chapter 91 assertion by a taxing
district, it is deprived of its opportunity to conduct discovery in connection with the factual
allegations in a Chapter 91 motion (i.e., as to the alleged non-response, or a false or fraudulent
5 Although not necessary, in light of the above conclusion, the court is not persuaded that the
assertion of a non-response to a Chapter 91 request in a motion is an affirmative defense, in the
sense that an affirmative defense acts as a complete bar to a property owner’s claim for relief or
cause of action. A Chapter 91 motion does not “dismiss the appeal in its entirety,” since a taxpayer
is nonetheless entitled to a reasonableness hearing. Pressler & Verniero, cmt. on R. 8:7(e). See
also Paulison, 18 N.J. Tax at 111-12 (“A failure to respond to” a Chapter 91 request “does not
require a dismissal of an appeal but only a limitation on the scope of the hearing to be held before
the Tax Court,” thus, the court can “hear the matter, but only on a limited basis.”); ME Realty
L.L.C., 26 N.J. Tax at 72 (“The plain language of R. 8:7(e) affords no distinction, exception, or
tolling of the 180-day time period in which to move for dismissal, based upon the type of relief
sought in the complaint.”). Importantly, if in a reasonableness hearing a taxpayer can prove that
the assessor’s data and methodology was so arbitrary and capricious that the ensuing assessment
was unreasonable or aberrant, then, the taxpayer can proceed to prove what the property’s value
should be. See Ocean Pines, 112 N.J. at 12 (citing to Transcontinental Gas Pipe Line Corp. v.
Township of Bernards, 111 N.J. 507 (1988) as an “example of an aberrant methodology that
dispelled the presumption of correctness of the” assessment). In Transcontinental, the Court held
that “when confronted by . . . a totally deficient valuation methodology, which provides no reliable
indication that the quantum of the assessment is itself reasonable, the Tax Court is obligated to
exercise its power to make an independent assessment based on the evidence before it and data
properly at its disposal.” 111 N.J. at 538.

14
response). This is because it must complete valuation discovery within 150 days of the filing of
the complaint in standard track cases (such as the instant one), see R. 8:6-1, which leaves it only
30 days to conduct discovery as to the Chapter 91 motion. Plaintiff claims that the 180-day period
“assumes” that standard track discovery is complete, which will put the parties on notice of what
the “legal issues are.” It notes that not knowing the existence of a Chapter 91 “defense” would
leave it vulnerable to a waste of, or misdirected expense of time, resources, and costs.
The arguments are unpersuasive. As noted in Paulison, the time limits are meant precisely
for an expeditious resolution of an appeal so that costs can be saved. Additionally, although Part
VIII provides 150 days for completion of discovery in standard track cases, see R. 8:6-1, there is
nothing to prevent the parties from requesting an extension of the discovery end-date while a
Chapter 91 motion is pending, so that resources may be devoted to discovery on the factual aspects
of the motion (which is essentially whether or why a response was allegedly not provided by the
plaintiff taxpayer). Nor is there any rule in Part VIII which prevents this exercise.6
The City’s motion fully complied with R. 8:7(e), the court rule in Part VIII that is
specifically applicable to assertions of a Chapter 91 non-compliance by a taxing district, the
resolution of such motion being undisputedly the “business of the Tax Court.” Therefore, the court
rejects plaintiff’s argument that the City’s motion should denied pursuant to Part IV.
(C) Should the Chapter 91 Motion be Compliant with R. 4:46-2?
Plaintiff argues that the City’s motion equates to a summary judgment motion because the
motion relies upon statements outside the pleading. See R. 4:6-2 (e) (if a motion is made for a
“failure to state a claim upon which relief can be granted,” and movant presents “matters outside
6 Indeed here, plaintiff sought a two-cycle adjournment for its initial response to the motion on
grounds it needed time to “respond.” Nonetheless, in its response, plaintiff did not refute either
the receipt of, or its failure to respond to, the Chapter 91 request.

15
the pleading” which are “not excluded by the court,” such a motion is treated “as one for summary
judgment”). Plaintiff maintains that the City failed to comply with the requirements of a summary
judgment motion under R. 4:46-2 because it did not file a Statement of Undisputed Material Facts
with or without supporting affidavits, and a brief in support of the motion.
The City contends that its Chapter 91 motion is not one seeking to dismiss plaintiff’s
complaint “for failure to state a claim” under R. 4:6-2(e), but is a “jurisdictional objection.” See
Cascade Corp., 323 N.J. Super. at 191 (“[T]he barring language of Chapter 91 must be seen as
jurisdictional (except for the right to a reasonableness hearing) where the scope of the assessor’s
request is plain”) (citation omitted).
The City’s Chapter 91 motion is not a motion for failure to state a claim upon which relief
can be granted. It does not allege that plaintiff’s complaint challenging the Subject’s assessment
as not reflective of true value, is a claim for which no relief can be granted. Rather, the motion
seeks to limit the scope of plaintiff’s complaint. Even if the City’s motion were granted, plaintiff
is entitled to a hearing on the reasonableness of the very same assessment.
Additionally, plaintiff’s argument is problematic. If the City’s motion is to be treated as a
summary judgment motion, then plaintiff has violated the court rules governing such motions.
Rule 4:46-2(b) requires an opposition to specifically dispute the movant’s duly supported factual
allegations, and to be submitted in compliance with R. 4:46-2(a). The latter rule requires “a
citation to the portion of the motion record establishing the fact or demonstrating that it is
uncontroverted . . . . identify the document and . . . specify the pages and paragraphs or lines
thereof or the specific portions of exhibits relied on.” R. 4:46-2(a). More importantly, R. 4:46-
5(a) clearly states that the non-movant “may not rest upon the mere allegations . . . but must
respond” with affidavits or in compliance with R. 4:46-2(b), “setting forth specific facts showing

16
that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered.”
Yet plaintiff is doing exactly what R. 4:46-5(a) forbids, namely, seeking denial of a motion
on mere suppositions. It did not provide any properly supported certification or affidavit to show
that there are material facts in dispute as to which it needs discovery. The City filed its motion
October 19, 2017. It provided certifications and adequate documents to support its allegations in
the motion, including the certified mail return receipt, demonstrating that plaintiff received the
Chapter 91 request. In response, after adjournments, plaintiff filed its opposition with one
certification, that of plaintiff’s counsel’s. That certification averred certain facts, viz., plaintiff is
organized as a federally tax exempt entity under I.R.C. § 501(c)(7), owns the Subject, which is
used as a fraternity house consistent with the purposes of I.R.C. §501(c)(7), and for “housing
members of the fraternity currently attending Rutgers,” and averred that there were two
unpublished opinions in support of plaintiff’s arguments that it is entitled to discovery whether the
Chapter 91 request was a pretext. There was no independent certification denying receipt of the
Chapter 91 request, or the validity of the certified mail return receipt. In sum, plaintiff did not
dispute the City’s asserted facts of the mailing and receipt of the Chapter 91 request. Therefore,
even if the court were to find that the Chapter 91 motion should be treated as a summary judgment
motion, plaintiff has not pointed to any materially disputed facts as to which discovery is allegedly
required.
(D) Prima Facie Case for Dismissal
Plaintiff’s argument that the City’s motion should be denied for failing to make a “prima
facie” case because the City failed to “plead, support, and . . . demonstrate (or establish a rebuttable
presumption)” that the Subject was income-producing lacks merit. As certified by the assessor,

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an identical Chapter 91 request is sent to all income-producing property owners in the City.
Additionally, the request did not seek I&E information from non-income-producing properties
because it stated, clearly, in bold and italicized font:
Please Note: If this property is 100% owner occupied, and there are no leases or
rents, or other income derived from this property, complete PART I –
PROPERTY IDENTIFICATION, then write the words “Owner Occupied across
PART 2 – PROPERTY INFORMATION, and then certify your response . . . with
your signature and the date, and return the completed form to the Tax Assessor
within 45 days of receipt.
Plaintiff never denied receipt of the Chapter 91 request. It never advised the City that the
Subject was owner occupied, that it does not receive income from the Subject, or that there are no
leases or rent from the Subject. It was plaintiff’s obligation to respond, and not having so done,
bears the burden of proving that the Subject was not income-producing. “The whole premise of
[C]hapter 91 is that the taxpayer is in control of the income information; using the income
information is a good, if not the best, measure of value; and if the taxpayer withholds that
information, the municipality has no other choice but to set the assessment without the benefit of
income information of the subject property.” Carriage Four Assoc. v. Township of Teaneck, 13
N.J. Tax 172, 177 (Tax 1993).
The City’s motion was properly supported by the assessor’s certification as to the mailing
of the Chapter 91 request, the mailing method, mailing date, and of its receipt, and included a copy
of the request as well as the signed return receipt. In reply to plaintiff’s opposition, the assessor
further certified that he believed the Subject was income-producing when he sent the Chapter 91
request, and plaintiff responded to such request for tax year 2014. He also certified that his office
mailed Chapter 91 requests to all commercial property owners, and for properties classified as
commercial, so that he can use such critical information in setting assessments.

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Thus, the court rejects plaintiff’s contention that since the City failed to make a showing
that the Subject is income producing, its motion should be denied.
(E) Discovery on the Involvement of the Revaluation Firm
Plaintiff’s claim for discovery on the revaluation firm’s involvement in sending the Chapter
91 requests is rejected. Not only is such claim belied by the credible refutation of the assessor, but
the Chapter 91 request does not indicate anywhere that the request was sent from, and was to be
returned to, the revaluation firm. Cf. Tri-Martin Assocs. II, L.L.C. v. City of Newark, 21 N.J. Tax
253, 257-58 (Tax 2004) (where the Chapter 91 request “was on” the revaluation company’s
“letterhead, with requested information to be forwarded to the same company,” it violated the
Chapter 91 statue which “clearly indicates that no one other than the assessor may send a request
for income and expense information”). See also TMC Props. v. Borough of Wharton, 15 N.J. Tax
455, 465 (Tax 1996) (“acceptance and use” of financial information by a revaluation company “for
purposes of setting” an assessment, “does not excuse or vitiate [the taxpayer’s] failure to respond”
timely to a Chapter 91 request).
(F) Square Corners Doctrine
Plaintiff’s argues that the City’s motion should be barred by the square corners doctrine.
See F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985) (government officials
must act “solely in the public interest,” and ‘“[i]n dealing with the public, [the] government must
turn square corners”) (citation and internal quotation marks omitted). Plaintiff maintains that it
must engage in discovery to explore whether the Chapter 91 request was simply a pretext to have
its complaint dismissed, or was genuinely needed to ascertain the Subject’s assessment. The court
is unpersuaded.

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It is true that the implied purpose of a Chapter 91 request is to make I&E information
available to an assessor to assist in determining the assessment of the property. See N.J.S.A. 54:4-
34 (in the absence of a response, or if a false one is provided, then the assessor must “value [the]
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”). See also John Hancock Mut. Life Ins.
Co. v. Township of Wayne, 13 N.J. Tax 417, 422 (Tax 1993) (the “purpose of N.J.S.A. 54:4-34 is
to assist the assessor in making the assessment and to diminish the likelihood of litigation,”
therefore, “the assessor’s request must be timely, so that [when received], the assessor can utilize
the information by January 10,” consequently, a “taxpayer must show that the information could
not have been used by the assessor in completing the assessment by January 10 to defeat a [Chapter
91] motion.”).
However, this court does not extend the holding in John Hancock, such that property
owners are excused from their statutory obligation to respond to a Chapter 91 request on grounds
that they are entitled to know whether or not the information that could (or would) have been
provided, was (or would have been) used by the assessor in setting the assessment. Such a reading
turns the statute on its head. N.J.S.A. 54:4-34 places two express burdens: one upon the property
owner to respond in a timely manner; and another upon the assessor to send a written request by
certified mail with a copy of the statute. There is nothing limiting, prescribing, or determining the
method or means by which the assessor can or must use such information. See SKG Realty, 8 N.J.
Tax at 211 (“[I]t is up to the assessor and not the taxpayer to decide whether to consider the
information furnished.”). Indeed, requesting the I&E data itself is discretionary.
The court thus, rejects plaintiff’s argument that it must be afforded the opportunity to
conduct discovery to explore whether the assessor would have used the Chapter 91 information in

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the assessing process, had the same been provided by plaintiff. Plaintiff is not prejudiced because
it would be entitled to a reasonableness hearing should its complaint be dismissed, and in that
context, is permitted discovery on the methods employed by the assessor in setting the Subject’s
assessment.
CONCLUSION
For all of the aforementioned reasons, the court grants the City’s motion in part subject to
plaintiff’s right to seek a reasonableness hearing under Ocean Pines Ltd.