Opinion
DOCKET NO. A-5963-13T3
10-21-2016
ARGYROSOMUS, LLC, Plaintiff-Respondent, v. SEABOARD LANDING, LLC, and STATE OF NEW JERSEY, Defendants, and REPUBLIC FIRST BANK, Defendant-Appellant.
M. James Maley, Jr. argued the cause for appellant (Maley & Associates, attorneys; Mr. Maley and Erin E. Simone, on the briefs). Linda S. Fossi argued the cause for respondent (Gary C. Zeitz, L.L.C., attorneys; Ms. Fossi, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Salem County, Docket No. F-8544-12. M. James Maley, Jr. argued the cause for appellant (Maley & Associates, attorneys; Mr. Maley and Erin E. Simone, on the briefs). Linda S. Fossi argued the cause for respondent (Gary C. Zeitz, L.L.C., attorneys; Ms. Fossi, on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant Republic First Bank appeals from the Chancery Division's July 30, 2014 final judgment of foreclosure on a tax sale certificate held by plaintiff Argyrosomus, LLC, barring all rights of redemption to defendant's property. Defendant also appeals from prior interlocutory orders denying its motions for a stay of the foreclosure action pending resolution of defendant's separate tax appeal. We affirm.
I.
This appeal pertains to several acres of undeveloped waterfront property in Penns Grove Borough, formally Block 57, Lot 1. Seaboard Landing, LLC, gave defendant a $6.5 million mortgage on the property. The land was intended to play a significant part of a multi-use redevelopment project. As part of that project, a broad waterfront walkway, supported by a decorative bulkhead, was constructed along the property. Public financing supported the construction. Seaboard's predecessor in title leased the walkway to the borough.
A more detailed description of the background of the project and the walkway is found in the decision on the tax appeal, in which the Tax Court ultimately ordered a significant reduction in the assessment and the taxes due. Seaboard Landing, L.L.C. v. Borough of Penns Grove, No. 000091-2009, 000093-2009, 009264-2011 (Tax July 24, 2015).
In October 2008, a year after completion of the walkway, the borough's tax assessor imposed an added assessment on the property based on the walkway's value. An added assessment of $1.25 million was applied to 2008, and a pro-rated added assessment of $208,333 was applied to the last two months of 2007. As a result, taxes on the property rose almost $12,000 for 2007 and over $77,000 for 2008. In January 2009, Seaboard filed complaints before the Tax Court appealing the added assessments. In the meantime, Seaboard paid the base taxes for the two years, but did not pay the taxes attributable to the added assessments.
The Tax Court opined that the assessments "[may be] properly characterized as omitted added assessments, given the timing of their imposition." Seaboard Landing, L.L.C., supra, slip op. at 4 n.3 (citing N.J.S.A. 54:4-63.12).
Seaboard initially appealed to the Salem County Board of Taxation, which dismissed the action because Seaboard "had not paid the taxes attributable to the added assessments." Seaboard Landing L.L.C., supra, slip op. at 5. The Tax Court noted that the board erred, because prepayment of the taxes attributable to the added assessments is not a prerequisite to maintaining an appeal. Id. at slip op. at 6 n.4 (citing BDB Enterps. v. Twp. of Brick, 16 N.J. Tax 22 (Tax 1996)). Later in our opinion, we will return to the issue of payment conditions of a tax appeal.
Over eleven months passed and on September 17, 2009, the borough sold, at a public auction, a tax sale certificate for those unpaid taxes, plus penalty interest pursuant to N.J.S.A. 54:4-67(a). U.S. Bank, NA, as custodian for Sass Muni V, L.L.C., purchased the certificate for $107,649, with an interest rate of eighteen percent. See N.J.S.A. 54:5-32. Seaboard subsequently defaulted on its obligations to pay taxes for 2009 and subsequent years, which Sass Muni paid instead.
In the meantime, defendant assumed the prosecution of the tax appeal involving the 2007 and 2008 added assessments. Defendant also prosecuted appeals for subsequent years' assessments, although Sass Muni continued to pay the taxes.
On May 8, 2012, more than two years since its purchase of the tax sale certificate, Sass Muni filed its complaint for foreclosure against Seaboard and defendant. Only defendant filed an answer. According to the Tax Court, sometime in 2012, defendant accepted a deed in lieu of foreclosure in connection with Seaboard's default of its mortgage, but did not record the deed. See Seaboard Landing, L.L.C., supra, slip op. at 7.
Sass Muni also named the State of New Jersey, in the event Seaboard was delinquent in any tax obligations to the State.
Contending that the answer was non-contesting, Sass Muni filed a motion for summary judgment, entry of default, and striking of defendant's answer. Sass Muni alleged it was owed $765,159.33 as of October 25, 2012.
Defendant responded with its first of three motions to stay the foreclosure action pending resolution of its tax appeals. Defendant asserted, based on its own property appraisal, that the borough grossly overestimated the walkway's value and, thus, over-assessed the property by almost a multiple of four.
On March 4, 2013, the trial court granted summary judgment and denied defendant's request for a stay. The court rejected defendant's claim of irreparable harm, because "N.J.S.A. 54:3-27.2 serves as the statutory authority that prevents the Bank from being subject to the voluntary payment exception" as set forth in Continental Trailways, Inc. v. Director, Div. of Motor Vehicles, 102 N.J. 526, 548 (1986). The court held, "The Bank can redeem the certificate and seek a refund, with interest, from Penns Grove if the tax appeal is successful." The court also distinguished Town of West Orange v. Block 107, Lot 1, 162 N.J. Super. 314 (App. Div. 1978), where this court approved the grant of a conditional stay of a municipality's in rem tax foreclosure action pending adjudication of tax appeals. The court noted that the 1975 foreclosure action in Town of West Orange preceded the effective date of N.J.S.A. 54:3-27.2. The court also rejected defendant's challenge to the taxes and interest due as set forth in the tax sale certificate. The court permitted the foreclosure to proceed as uncontested.
The court noted that the $107,549.20 consisted of $89,283.31 due as of December 16, 2008, plus a 2008 year-end penalty of $5394.50, and interest through September 2009 of $12,871.39. We note that the $107,549.20 does not appear to account for the pro-rated taxes due for 2007 based on the added assessment. However, neither party raises that issue before us.
On May 7, 2013, the court entered an order setting the date, time, place and amount of redemption, with a redemption amount of $803,251.45 as of June 24, 2013. Defendant filed its second motion for a stay. Defendant contended that if it redeemed, and later prevailed on the tax appeal, it would be unable to secure a full refund of the interest it paid on the excess tax. Defendant reasoned that it would be eligible to receive five percent interest from the municipality on the refunded tax, but neither the municipality nor plaintiff would be obliged to refund the eighteen percent that plaintiff received in redemption.
By order entered July 27, 2013, the court denied the motion. In contrast to its opinion in March, the court seemed to acknowledge that defendant might not be able to secure a complete refund of the cost of redemption, given plaintiff's entitlement to eighteen percent interest and the municipality's obligation to pay no more than five percent on refunds. The court stated that "the fact that there may be an anomaly . . . [in which] a favorable tax appeal determination result[s] in a 13 percent . . . interest rate loss to the Bank" did not justify a stay. The court also noted that defendant paid no taxes on the property. Thereafter, Argyrosomus substituted in as plaintiff, after Sass Muni assigned the tax sale certificate to it.
When plaintiff filed its motion for entry of final judgment, defendant again moved for a stay, which the court denied on July 15, 2014. In its oral opinion denying relief, the judge stated she "found no forfeiture would occur since N.J.S.A. 54:3-27.2 requires the municipality to refund the excess taxes and interest paid thereon, including the interest paid by the defendant to the tax sale certificate holder." Thereafter, final judgment of foreclosure was entered July 30, 2014.
Defendant's appeal followed. Defendant contends the trial court erred in denying a stay and permitting entry of final judgment of foreclosure while the tax appeal was pending. Defendant also contends that as applied, the tax laws are unconstitutional.
As only defendant filed a notice of appeal and was the sole party that answered the complaint, we deem defendant to be the sole appellant before us, notwithstanding that defendant's briefs on appeal purport to be on behalf of Seaboard as well.
II.
A.
We review the denial of a stay under an abuse of discretion standard. See Avila v. Retailers & Mfrs. Distribution, 355 N.J. Super. 350, 354 (App. Div. 2002), certif. denied, 176 N.J. 74 (2003). We will reverse only when faced with "'special equities showing abuse of discretion in that injustice would be perpetrated on the one seeking the stay, and no hardship, prejudice or inconvenience would result to the one against whom it is sought.'" Ibid. (quoting Gosschalk v. Gosschalk, 48 N.J. Super. 566, 579 (App. Div.), aff'd, 28 N.J. 73 (1958)). We may also affirm the trial court's order on grounds different from those relied upon by the trial court. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011). We exercise plenary review over issues of law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
This appeal requires us to interpret the statutory provisions governing tax sale certificates and appeals from added or omitted added assessments. See Princeton S. Investors, LLC v. First Am. Title Ins. Co., 437 N.J. Super. 283, 289 (App. Div. 2014) (stating that an added assessment relates to "improvements to real estate that are substantially ready for their intended use after the assessor has completed the annual October 1 assessment"); N.J.S.A. 54:4-63.2 (permitting imposition of "added assessment"); N.J.S.A. 54:4-63.12 (permitting imposition of "omitted added assessment").
Property owners may appeal from an added assessment, as well as an annual assessment. However, the preconditions of an appeal differ. To maintain an appeal of an annual assessment, whether to the county board or directly to the Tax Court, the taxpayer is required to pay all unpaid taxes due, through the first quarter of the current tax year. See N.J.S.A. 54:3-27; see also N.J.S.A. 54:51A-1(b) (requiring payment of "all taxes or any installments thereof then due and payable for the year for which review is sought" when filing a complaint with the Tax Court to review a county tax board judgment).
Both tax payment requirements are subject to relaxation. See Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 188-89, 198-203 (App. Div.) (discussing provisions relaxing tax payment requirement in the interests of justice), certif. denied, 208 N.J. 338 (2011).
If a taxpayer ultimately prevails on its tax appeal, it is entitled to a refund of any excess taxes paid, plus five percent interest. See N.J.S.A. 54:3-27.2 (stating that "in the event that a taxpayer is successful in an appeal from an assessment on real property, the respective taxing district shall refund any excess taxes paid" plus five percent interest from the date of payment); see also GMC v. City of Linden, 143 N.J. 336, 349-50 (1996). The common law "volunteer rule" provided that "in the absence of statutory authority, taxes voluntarily, although erroneously, paid even under an unconstitutional statute cannot be refunded." Continental Trailways, supra, 102 N.J. at 548. It was also well-settled that "interest is not recoverable on an abatement of tax liability unless provision therefor is made by statute." Frieman v. Twp. of Randolph, 185 N.J. Super. 152, 163 (App. Div.), certif. denied, 91 N.J. 282 (1982). However, N.J.S.A. 54:3-27.2 provides the statutory authority for both refund and interest. See id. at 157-61 (reviewing history of statutes governing prerequisites to filing tax appeals and right to refund and interest).
By contrast, to file a direct appeal from an added or omitted assessment, the taxpayer need not pay the taxes arising from the added or omitted assessment. Rather, the taxpayer must pay all unpaid prior and current year taxes as they become due "exclusive of the taxes imposed under the added or omitted assessment." N.J.S.A. 54:3-27 (emphasis added). Nonetheless, if the tax appellant chooses to pay the added or omitted assessment, it is still entitled to a refund should it succeed on appeal. See N.J.S.A. 54:3-27.2; see also Fifth Roc Jersey Assocs., L.L.C. v. Town of Morristown, 26 N.J. Tax 212, 231-32 (Tax 2011) (allowing a refund under N.J.S.A. 54:3-27.2 of excess taxes paid based on an added assessment).
When a property owner pays taxes as a condition of pursuing a tax appeal, it incidentally shields itself from the risks and penalties of non-payment. The same may not be said of a taxpayer who appeals an added or omitted added assessment, but chooses to litigate first and pay later. After non-payment for the prescribed period, the municipality is required to sell a tax sale certificate. See N.J.S.A. 54:5-19. The third-party purchaser acquires three rights:
the right to receive the sum paid for the certificate with interest at the redemption rate for which the property was sold; the right to redeem from the holder a subsequently issued tax sale certificate; and the right to acquire title by foreclosing the equity of redemption of all outstanding interests, including that of the property owner."[B]y virtue of foreclosure, the purchaser of the tax sale certificate may become the owner of the property in fee simple." Id. at 63-64 (internal quotation marks and citation omitted).
[In re Princeton Office Park L.P. v. Plymouth Park Tax Servs., LLC, 218 N.J. 52, 63 (2014) (internal quotation marks and citations omitted).]
Two years after the sale of the tax sale certificate, the owner may commence an action to foreclose the right of redemption, which continues to exist until barred by the court. See N.J.S.A. 54:5-86(a). Moreover, after two years, a defendant is barred from challenging the truth of the statements in the tax sale certificate, or the regularity or validity of the sale. See N.J.S.A. 54:5-52, -82.
The two-year limit does not bar a party from challenging a certificate if the underlying assessment is void ab initio. See Hudson Cty. Park Comm'n v. Jacobson, 132 N.J.L. 287, 288-89 (Sup. Ct. 1944) (allowing defense of invalidity of assessment imposed upon public property); see also Wynwood Condo. Ass'n v. Twin Trees Dev. Co., 250 N.J. Super. 510, 523 (Ch. Div. 1991) (where assessment of condominium common element was erroneously applied to the condominium association, as opposed to unit holders on pro rata basis, court rescinded tax sale certificate).
Furthermore, a tax appeal may not disturb or reduce the third-party purchaser's rights under the tax sale certificate, unless the appeal establishes that the underlying assessment was invalid, as opposed to merely excessive. Simon v. Twp. of Voorhees, 289 N.J. Super. 116, 122 (App. Div.), certif. denied, 145 N.J. 373 (1996); DSC of Newark Enters. v. S. Plainfield Borough, 25 N.J. Tax 120, 131 (Tax 2009); Ramos v. City of Passaic, 19 N.J. Tax 97, 113 (Tax 2000) ("An appeal will not prejudice the rights of a third-party purchaser of a tax sale certificate."). "Our case law underscores the distinction between illegal or 'invalid' assessments on the one hand, and 'overassessments' on the other." Simon, supra, 289 N.J. Super. at 122.
In Simon, we rejected the municipality's argument that N.J.S.A. 54:5-43.1 authorized it to vacate a tax sale certificate based on a settlement of a tax appeal, ibid., and to simply refund the third-party purchaser the amount paid for the certificate and lawful interest, as opposed to the interest due under the certificate. Id. at 122-23. The municipality's proposed action would have "deprived the plaintiffs [tax sale certificate owners] of their statutory and contractual rights . . . ." Id. at 124; see also N.J.S.A. 54:4-99 (stating that a municipality's "abatement, revision, alteration, adjustment [or] settlement of any past due taxes, [or] assessments" shall not "in any wise affect or impair the right, title, interest or estate or the lien of any purchaser, other than such municipality, acquired under any sale made . . . .").
The provision states:
If the assessment itself is valid and the tax, assessment or other municipal charge, or any part thereof, is justly due, no sale shall be set aside, except on condition that the amount due shall be paid to the municipality for the use of the holder of the certificate of sale by the person applying to set it aside. If the sale shall be set aside, the municipality shall refund to the purchaser the price paid by him on the sale, with lawful interest, upon his assigning to the municipality the certificate of sale and all his interest in the tax, assessment or other charges and in the municipal lien therefor, and the municipality may readvertise and sell if the municipal lien remains in force.
[N.J.S.A. 54:5-43.]
Our decision in Brinkley v. W. World Inc., 292 N.J. Super. 134 (App. Div. 1996), aff'g o.b. 275 N.J. Super. 605 (Ch. Div. 1994) is not inconsistent with these principles. In Brinkley, the taxpayer prevailed in his appeal that his property was entitled to a farmland assessment. See id. at 608. In the interim, however, a tax sale proceeded over his objection. Ibid. In the foreclosure action after the tax appeal concluded, the court held the tax sale certificates were void ab initio, because the assessments were void. See id. at 609-10. The court held the certificates could be assigned to the municipality for a refund. See id. at 613.
A taxpayer may also defend a tax foreclosure action if it had no opportunity to contest the assessment. Town of W. Orange, supra, 162 N.J. Super. at 316 n.1. However, defendant had such opportunity in the tax appeal here.
B.
Defendant contends that as a matter of equity, the court should have stayed the foreclosure action, or in the alternative, deferred the equitable remedy of foreclosure. Defendant does not challenge the validity of the tax sale certificate, nor the fact that tax was due and owing. Defendant wanted to hold the foreclosure action in abeyance while it pursued its tax appeals.
Defendant contends that in the absence of a stay, if it had redeemed the property based on a redemption amount that incorporated the eighteen percent interest rate, it still would have suffered an irremediable loss, even if it later succeeded in the tax appeal. That is because the municipality would have been required to pay only five percent interest, under N.J.S.A. 54:3-27.2, on a refund of any excess taxes paid. Defendant presumed — we think incorrectly — that if it secured a lower assessment and tax before foreclosure, plaintiff's lien would be reduced; as a result, the eighteen percent interest would be applied to the reduced amount. Essentially, defendant sought to shield itself from its own costs at plaintiff's expense. In our view, the trial court correctly observed that the "anomaly" that the bank might suffer a thirteen percent interest loss did not justify a stay.
Whether to grant a stay is subject to the same factors that govern the grant of an interlocutory injunction set forth in Crowe v. De Gioia, 90 N.J. 126 (1982): whether the applicant would suffer irreparable harm absent relief; the likelihood of success on the merits and whether the claim rests on settled law; an assessment of the relative hardships; and, in cases of public importance, the impact of the stay on the public interest. See Garden State Equality v. Dow, 216 N.J. 314, 320 (2013) (addressing stay pending appeal). Applying these standards, we discern no error in the court's decision.
Harm is irreparable if it cannot be redressed adequately by money damages. Crowe, supra, 90 N.J. at 132-33. Defendant contends that if it redeemed absent a stay, it would have suffered an irreparable harm because it could not fully recoup its loss, even if it succeeded in the tax appeal. We agree that neither plaintiff nor the municipality would have been obliged to refund defendant the full eighteen percent interest payment to plaintiff if it redeemed. See J.L. Muscarelle, Inc. v. Twp. of Saddle Brook, 14 N.J. Tax 453, 481 (Tax 1995) (Dougherty, J.T.C., concurring) ("[T]he Tax Sale Law provides no refund remedy for the delinquent taxpayer."). However, this harm should be given little weight.
The harm to defendant was of its own making. Defendant could have paid the added assessment before the sale of the tax sale certificate, notwithstanding that the payment was not a prerequisite to mounting the tax appeal. Defendant is a substantial financial institution. There is no issue regarding its ability to pay the tax, to litigate the tax appeal, and to await a refund with five percent interest if successful.
Furthermore, defendant did not seek a stay of the tax sale itself. Courts of equity have stayed the sale of a tax sale certificate while the assessment is subject to a pending tax appeal. See Rice v. City of Newark, 136 N.J. Eq. 53, 55 (Ch. 1944); see also Gen'l Elec. Co. v. City of Passaic, 48 N.J. Super. 604, 606 (Ch. Div. 1958). Arguably, a stronger argument can be made for a stay in cases involving added assessments. That is because, unlike annual assessments, a municipality generally has not anticipated the revenue of such assessments in its budget. See Inwood Owners, Inc. v. Twp. of Little Falls, 216 N.J. Super. 485, 489-91 (App. Div. 1987). On the other hand, a party that is undeniably able to pay the tax may have a weak case for a stay of the sale.
Although defendant obtained the deed in lieu of foreclosure after the tax sale, it should have been on notice of the prospective tax sale. See N.J.S.A. 54:5-25.
We recognize that a significant factor supporting a stay in Rice was the fact that the voluntary payment rule would have applied to a payment beyond the amount the tax appellant believed was due. Supra, 136 N.J. Eq. at 55. --------
In any event, once the tax sale proceeds and the third-party purchaser, such as plaintiff, acquires the tax sale certificate, the court must weigh the expectations of the purchaser to earn the promised rate of return, and the remedial goals of the tax sale law. See Princeton Office Park, supra, 218 N.J. at 65-66 (discussing remedial purpose of tax sale law); Caput Mortuum, L.L.C. v. S&S Crown Servs., Ltd., 366 N.J. Super. 323, 335 (App. Div. 2004) ("It is generally the expectation that the certificate will be redeemed at a profit to the lien holder."); Pressler & Verniero, Current N.J. Court Rules, comment 6 on R. 4:64-6 (2016) ("The enforceable expectation of a tax sale purchaser is return of his purchase price plus interest in the event of redemption.").
Defendant's prospects for success in the tax appeal also were deserving of little weight in determining whether to stay the foreclosure action. Success on the tax appeal, had a stay been granted, would not have altered the scope of relief to which plaintiff was entitled. "The statutory amount required for redemption is calculated on the sum bid at the sale, not on the tax which may result" from the appeal. Rice, supra, 136 N.J. Eq. at 55 (citing N.J.S.A. 54:5-58). Consistent with this principle, the certificate states that the "sale is subject to redemption on repayment of the amount of sale, together with interest at the rate of 18.00 per centum per annum from the date of sale, and the costs incurred by the purchaser as defined by statute." As discussed above, proof of an overassessment does not affect the validity of the tax sale certificate, nor would a reduction in the assessment justify a reduction in the amount due to the tax sale certificate owner. See Simon, supra, 289 N.J. Super. at 122.
The balance of hardships also did not favor granting a stay, particularly when considering the public interest. The tax sale law shall be "liberally construed to effectuate the remedial objects thereof." N.J.S.A. 54:5-3. The tax sale law assists in raising revenue by enticing third parties to pay delinquent taxes, in return for the promise of interest and the possibility to acquire the property itself. Princeton Office Park, supra, 218 N.J. at 66; Caput Mortuum, supra, 366 N.J. Super. at 335-36. In this case, plaintiff committed substantial sums to acquire the tax sale certificate and then expended multiples of that amount to pay the subsequent annual taxes. Staying the foreclosure action, or deferring entry of final judgment, would not only frustrate the rights and expectations of plaintiff, but it would also indirectly make the purchase of tax sale certificates less attractive, which would undermine the revenue raising goal of the tax sale law.
These considerations outweigh defendant's self-inflicted hardship arising out of its decision to allow the tax sale to proceed without objection and to refuse to redeem at any early stage in the process. Defendant's apparent business judgment to eschew payment of taxes, even in the face of a tax sale, does not compel equitable relief.
Finally, we reject defendant's constitutional challenge to the tax law. Defendant contends the law is unconstitutional because if it redeemed the certificate, it would have been unable to secure a complete refund upon obtaining a favorable verdict in its tax appeal. We are unpersuaded. Defendant could have avoided the prospect of this loss by paying the tax before the tax sale, and then litigating the tax appeal.
Due process is not offended by a system in which a taxpayer is required to pay first, and litigate second. See McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, 496 U.S. 18, 37, 110 S. Ct. 2238, 2250-51, 110 L. Ed. 2d 17, 36 (1990) (stating due process does not require a "predeprivation process for the exaction of taxes" and "a State may employ various financial sanctions and summary remedies such as distress sales in order to encourage taxpayers to make timely payments prior to resolution of any dispute over the validity of the tax assessment."); N.Y., Susquehanna & W.R.R. v. Vermeulen, 44 N.J. 491, 501 (1965) ("[D]ue process does not forbid compulsion to pay taxes now and litigate later."); Echelon Glen Coop. v. Voorhees Twp., 275 N.J. Super. 441, 445 (App. Div.) (stating a taxpayer does not have a "constitutional right to pursue a tax appeal before payment of the taxes"), certif. denied, 138 N.J. 272 (1994); see also J.L. Muscarelle, Inc. v. Saddle Brook Twp., 15 N.J. Tax 164, 166-67 (App. Div. 1994); Jefferson-Halsey Rds. Assocs. v. Parsippany-Troy Hills Twp., 13 N.J. Tax 138, 139 (App. Div. 1993).
We need not address whether a different analysis would apply to a taxpayer that is unable, due to indigence, to pay taxes and then litigate the appropriateness of the assessment. Defendant presents no claim that it was unable to pay the tax. See J.L. Muscarelle, supra, 14 N.J. Tax at 458 (Rimm, J.T.C., concurring) ("The critical claim of a denial of due process is vitiated by the complete failure of the taxpayer to prove or even claim that it is unable to pay its taxes."); see also id. at 464 (Hamill, J.T.C., concurring) ("Being unable to establish its inability to pay, plaintiff cannot mount an 'as applied' constitutional challenge to the tax payment requirement . . . .").
To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION