Published Tax Court Opinions

STATE GROSS INCOME TAX

Tax Court: Donna Porcaro v. Director, Division of Taxation, Docket No. 012296-2020; opinion by Bedrin Murray, J.T.C., decided May 31, 2024.  For plaintiffs – Donna Porcaro (Self-Represented); for defendant – Linzhi Wang (Matthew Platkin, Attorney General of New Jersey, attorney). 

Held:  Plaintiff’s challenge to defendant’s denial of her claim for a refund of New Jersey gross income tax (GIT) for tax year 2016 is dismissed as untimely, depriving this court of subject matter jurisdiction.  Based on the totality of credible testimonial and documentary evidence presented, the court finds that plaintiff received defendant’s December 21, 2017 final determination denying plaintiff’s refund claim in December 2017, and not in May 2020 as plaintiff alleges.  Therefore, plaintiff was unable to overcome the presumption of receipt that attaches to defendant’s final determination under N.J.S.A. 54:50-6(a).  As such, plaintiff’s complaint is dismissed with prejudice.  

(18 Pages)        
 

LOCAL PROPERTY TAXATION – MUNICIPAL CHARGE – NON-RESIDENTIAL SITE DEVELOPMENT FEE – PLANNING BOARD ESCROW FEES – LEGISLATION, INTERPRETATION – LOCAL GOVERNMENTS, FINANCE
Tax Court:  Freda, Joseph A. by Acme as tenant v. City of Sea Isle City; Docket No. 006381-2023, opinion by Cimino, J.T.C., decided March 5, 2024.  For plaintiff – Pablo M. Kim(Heinze Law, P.A.); for defendant – Paul J. Baldini, (Paul J. Baldini, P.A.).
Held:  A tax appeal cannot go forward if a municipal charge is not paid.  Municipal charge is a term of art defined by the Legislature.  Since neither the non-residential development fee nor the planning board escrow fees constitute a municipal charge in this case, nonpayment cannot bar a tax appeal. 
(11 pages)
 

THIRD PARTY APPEALS; TRANSFERS OF MATTERS NOT COGNIZABLE IN TAX COURT TO LAW DIVISION

Tax Court:  Westerhold v. Toms River Township, Docket Nos. 008087-2022, 007534-2023, 009583-2022, 007535-2023;  Westerhold v. Brick Township, Docket Nos. 010281-2020, 010282-2020, 008086-2022, 007536-2023, 008085-2022, 007532-2023, opinion by Fiamingo, J.T.C., decided February 20, 2024.  For plaintiffs - Paul Tannenbaum, Peter Zipp, Michael Kurpiewski (Zipp & Tannenbaum, attorneys).  For defendant, Toms River Township – Kelsey A. McGuckin-Anthony (Dasti, Murphy, Ulaky, Loutsouris & Connor, attorneys); for defendant, Brick Township – Scott W. Kenneally (Starkey, Kelly, Kenneally, Cunningham, et al., attorneys). 

HELD:  Plaintiffs’ complaints contesting the local property tax assessments of third parties filed after February 21, 2021, were not cognizable in the Tax Court as a result of amendment to N.J.S.A. 54:3-21 eliminating subject matter jurisdiction over such appeals in the County Boards of Taxation and the Tax Court; third party tax appeals filed in the Tax Court after February 21, 2021, should be transferred to the Law Division pursuant to R.1:13-4, to be heard as actions in lieu of prerogative writs, per R. 4:69. 

(11 pages)
 

LOCAL PROPERTY TAX – VETERAN’S EXEMPTION – ARMY NATIONAL GUARD

Tax Court: Alemany v. Township of Marlboro, Docket No. 007209-2023; opinion by Sundar, P.J.T.C., decided January 29, 2024.  For plaintiff - Sheryl Alemany, self-represented; for defendant - Lani M. Lombardi, Esq. (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys).

HELD: Plaintiff, who served in the National Guard, was declared 100% and permanently disabled due to a service-connected disability by the federal Department of Veterans’ Affairs, and was honorably released by the U.S. Army.  Defendant denied local property tax exemption for her residence under N.J.S.A. 54:4-3.30 because federal Form DD-214 stated that she was released from “active duty training” and the pre-2019 precedent held that veterans training in the National Guards were not entitled to the exemption.  The court found that the New Jersey Constitution and N.J.S.A. 54:4-3.30 require only “active service” in the Army; the Form DD-214 evidenced that plaintiff was in active service with the U.S. Army National Guard; and full-time National Guard duty is considered as “active service” under the federal military law; therefore, plaintiff qualified for the exemption.  The term “active duty training” in Form DD-214 cannot be viewed in a vacuum and solely control determination of plaintiff’s qualification for the exemption.

(10 pages) 
 

STATE TAXATION – EARNED INCOME TAX CREDIT – GROSS INCOME TAX – FILING STATUS
Tax Court:  Doreen A. Scott v. Dir., Div. of Tax’n; Docket No. 010435-2022, opinion by Cimino, J.T.C., decided December 22, 2023.  For plaintiff – Doreen A. Scott, pro se.; for defendant – Michelline Capistrano Foster, Deputy Attorney General (Matthew J. Platkin, Attorney General of New Jersey, attorney).

Held:  In this challenge to the Director’s denial of the Earned Income Tax Credit (EITC), Ms. Scott filed her tax returns as head of household.  Her husband, Robert Scott, filed as single.  Since the Scotts are married and living together, Ms. Scott cannot file as head of household and Mr. Scott cannot file as single.  Instead, their tax status is married, either joint or separate.  The Director selected married-separate which maximizes the State’s recovery.  The Scotts want married-joint which reduces, but does not eliminate, the EITC. 

The Director argues that taxpayers must file a married-joint federal return to qualify for the credit.  The court rejects this contention.  Further, barring any specific statutory prohibition, married taxpayers are entitled to select whether they want a tax status of joint or separate.  An incorrect selection of tax status, such as head of household or single, does not preclude a married-joint return, nor allows the Director to impose married-separate status.  The Scotts are entitled to the EITC, albeit somewhat reduced.

(25 pages)
 

ADDED ASSESSMENT APPEALS (N.J.S.A. 54:4-63.11) – CASE TRACK REASSIGNMENT (R. 8:6-7) 

Tax Court: Jantzen, Giuseppin Nina & Matthew D. v. Green Township; Docket Nos. 008224-2022 & 008229-2022, opinion by Bianco, J.T.C., decided May 30, 2023.  For plaintiff – Kevin S. Englert (The Englert Law Firm, L.L.C.; attorney); for defendant – Robert B. McBriar (Schenck, Price, Smith & King, L.L.P.; attorney).

Plaintiff Taxpayers moved to change the small claims track designation assigned by the Tax Court Management Office for both above-referenced docket numbers, to the standard track to secure more comprehensive discovery.  Defendant Township cross-moved for summary judgment to dismiss the added assessment appeal under docket number 008224-2022 as untimely pursuant to N.J.S.A. 54:4-63.11. The court denied Defendant’s cross-motion to dismiss the added assessment appeal finding that the Township did not establish that the Tax Collector mailed notice of the 2021 added assessment to the Taxpayers, nor did the Taxpayers have constructive notice of the added assessment, and, Taxpayers were further denied a hearing before the Sussex County Board of Taxation. The court granted Plaintiffs’ motion the change the track designation in both matters finding that the change is necessary for Plaintiffs to pursue their claims against Defendant. 

(26 Pages)
 

LOCAL PROPERTY TAX

Tax Court:  Levy v. City of Long Branch, Docket No. 000448-2021, opinion by Sundar, P.J.T.C., decided May 5, 2023.  For plaintiff - Michael I. Schneck (Schneck Law Group, LLC, attorney) and Robert E. Spiotti (Spiotti & Associates, PC, attorney); for defendant – Shaun Peterson (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorney).

Held: Parties reached a global settlement agreement as to plaintiff’s complaint in the Tax Court for tax year 2021 and his petition before the county board of taxation for tax year 2022. The stipulation in the Tax Court matter was silent on the Freeze Act’s application. The stipulation in the County Board matter included plaintiff’s express waiver of the Freeze Act. Based on the four corners of the Tax Court stipulation, the court found that plaintiff did not waive application of the Freeze Act in the Tax Court matter.  Based on the record, the court found that plaintiff’s waiver of the Freeze Act in the County Board matter did not extend to, nor would be implied in settlement of the Tax Court matter. The court was unpersuaded that the only base year in a multi-year settlement must be the last year of the value judgment. The court was also unpersuaded that, without more, the County Board’s judgment is proof of a change in value for Freeze Act purposes.  
The court granted plaintiff’s motion for application of the Freeze Act to tax year 2023 based on the Tax Court’s final value judgment for tax year 2021.

(15 Pages)

STATUTE OF LIMITATIONS, RESPONSIBLE PERSON LIABILITY FOR GROSS INCOME TAX-ER AND SALES AND USE TAX.

Tax Court:  Gill v. Director, Division of Taxation, Docket No.004035-2021, opinion by Fiamingo, J.T.C., decided May 1, 2023.  For plaintiff  - Maria L. Dooner; for defendant Lindsey R. Curewitz (Matthew Platkin, Attorney General of New Jersey, attorney). 

HELD:  Plaintiff moved to apply the limitations period for assessment of tax to imposition of responsible person liability for gross income tax withholding under N.J.S.A. 54A:9-6(f) and (g) and for sales and use tax under N.J.S.A. 54:32B-2(w).  Director opposed and moved to uphold notification of responsible person status issued beyond limitation periods of the Gross Income Tax Act and Sales and Use Tax Act.  The court ruled that the notification of responsible person for purposes of imposing the penalty assessed by N.J.S.A. 54A:9-6(f) and/or (g) for gross income tax employer withholding required by N.J.S.A. 54A:7-1 et seq. was subject to the limitations period applicable to assessment of gross income tax.  The court ruled that no limitations period applied to the notification of responsible person liability for Sales and Use Tax, as such tax by statute was assessed against the responsible person upon the filing of the return by the seller.

21 pages
 

No summary available for this Appellate Division opinion which has been approved for publication in the Tax Court Reports.

Tax Court:  New Jersey State Firemen’s Association v. Dir., Div. of Taxation, Philadelphia Contributionship Ins. Co., Germantown Insurance Co., Greater New York Mutual Ins. Co., and Strathmore Ins. Co., Docket No. 000151-2019, opinion by Sundar, P.J.T.C., decided January 30, 2023.  For plaintiff - Michael E. Sullivan (Parker McCay, P.A., attorney); for defendant, Dir., Div. of Taxation - Michael J. Duffy (Matthew J. Platkin, Attorney General of New Jersey, attorney), for remaining defendants and intervenor Strathmore Ins. Co. - Michael A. Guariglia and Jamie Zug (McCarter & English, LLP, attorney).

Held: Defendant, Division of Taxation’s (“Taxation”) decision via its web-published Notice in 2016, to extend the statutory cap on premiums applied when computing the insurance premium tax (IPT) for domestic and foreign companies, in calculating the fire insurance premium tax (FIPT) paid to plaintiff by foreign insurers, is contrary to the plain language and intent of the FIPT statute, N.J.S.A 54:18-1, thus is not entitled to any deference.  Its interpretation of the provision in N.J.S.A. 54:18A-2(a) that the FIPT is considered “a part of” the “payable” IPT as requiring the cap to apply in computing the FIPT is unreasonable because, (a) since 1945, this provision has been interpreted to simply mean that the IPT statute requires a credit for the FIPT paid so that a foreign insurer does not pay a tax on fire insurance premiums twice, and (b) it results in plaintiff receiving less than the mandated 2% FIPT on “all of the” fire insurance premiums earned in New Jersey.  The cap on premiums for purposes of computing the IPT need not, and should not, be extended in computing the FIPT unless the Legislature acts to amend the respective statutes.

Due to this holding, the court did not need to consider plaintiff’s arguments that Taxation’s decision violated the Administrative Procedures Act, or Taxation’s arguments that its Notice, as a public guidance document should be upheld under the temporary validity doctrine until it formally promulgates and finalizes regulations reflecting its changed position as to FIPT computation.  

The court granted NJSFA’s motion for partial summary judgment, invalidated the Notice, and denied Taxation’s motion for summary judgment.
 

Tax Court; Options Imagined v. Parsippany-Troy Hills Township; Docket Nos. 010456-2020, 09577-2021 and 007910-2022; opinion by Bianco, J.T.C., decided October 31, 2022. For plaintiff – Robert B. McBriar (Schneck, Price, Smith, & King, LLP., attorneys); For defendant – Richard P. DeAngelis (Connell Foley., attorneys).

The court held that Options Imagined, a New Jersey nonprofit and Federal § 502 (c) (3) corporation, satisfied the requirements for property tax exemption under N.J.S.A. 54:4-3.6, finding that it was actually used in furtherance of the nonprofit’s charitable purpose, to provide care to mentally disabled adults, where its sole and current resident is the son of the President of the corporation. The court found that Options satisfied the Paper Mill use test because it is opened to the public and serves a public purpose.

Tax Court: SF III Kinderkamack, LLC v Borough of Oradell; Docket Nos. 005860-2021, opinion by Orsen, J.T.C., decided October 21, 2022. For proposed Intervenor – Paul Tannenbaum (Zipp & Tannenbaum, LLC, attorneys); for plaintiff – Michael Ash (Carlin, Ward, Ash & Heiart, LLC, attorneys); and for defendant – Alan Spiniello (Alan Spiniello Law Offices, attorneys).

Held: Intervenor, Dabby Bergen Medi Pro, LLC, Sianes Bergen Medi Pro, LLC, YB 690 Kinder, LLC, and Yazam Investments, LLC collectively, sought to be joined as a party to the 2021 property tax appeal filed by plaintiff, SF III Kinderkamack, LLC. Intervenor asserted that the court rules pertaining to the transfer of interest, intervention and joinder were applicable; and standing existed to participate in the case as the new owner of the property. Defendant, Borough of Oradell, opposed the motion and maintained that Intervenor did not have standing because it was not the property owner as of the property tax appeal filing deadline, its claim was not within the statute of limitations and the requirements of the applicable court rules were not met. The court determined that Intervenor met the standards to join due to the transfer of interest of the property per the court rules. Moreover, the court found that Intervenor had standing in its fact-sensitive analysis through multiple factors including the review of its financial interest in the property and responsibility to pay taxes. Intervenor was also not barred by the statute of limitations as no new relief was sought. Accordingly, the court granted Intervenor’s motion to join the case as a party.

Tax Court: Bloomingdale’s, Inc. and Bloomingdale’s c/o Federated Department Stores, Inc. v. Hackensack City; Docket Nos. 006396-2016, 007619-2016, 004282-2017, 006959-2018, 003279-2019, 004117-2020, opinion by Novin, J.T.C., decided August 8, 2022; publication date September 28, 2022. For plaintiff – Gregory S. Schaffer and Adam R. Jones (Garippa, Lotz & Giannuario, P.C., attorneys); for defendant – Kenneth A. Porro (Chasan Lamparello Mallon & Cappuzzo, P.C., attorneys).

The court concluded that the subject property’s tax assessments should be afforded a presumption of validity because defendant’s tax assessor relied on reasonable available market data and methods in fulfilling his constitutional and statutory obligations. The court found that defendant’s ineligibility to conduct an annual reassessment program, under N.J.A.C. 18:12A-1.14(i), was not singularly dispositive on the issue of whether the local property tax assessments were entitled to a presumption of validity. Rather, the court observed that the inquiry must focus on whether the valuation and local property tax assessments were reasonably related to sound assessment practices, based on reasonable data and information, a sensitivity to changing market conditions, and consideration of physical factors uniquely applicable to the property. The court found that plaintiff offered no evidence that the market data, analysis, and/or methodology relied upon by the defendant’s tax assessor were flawed or arbitrary. Accordingly, the court rejected plaintiff’s arguments that no presumption of validity should attach to the subject property’s tax assessments.

Tax Court: Jaguar Land Rover North America v. Director Division of Taxation and Township of Mahwah; Docket No. 014046-2018; opinion by Bianco, J.T.C., decided July 29, 2022. For plaintiff – Joseph E. Bock, Esq. (Spiotti & Associates, P.C., attorney); for defendant Director, Division of Taxation – Anthony D. Tancini, Esq. (Matthew J. Platkin, Acting Attorney General of New Jersey, attorney); for defendant Township of Mahwah – Nylema Nabbie (Cleary Giacobbe Alfieri Jacobs, LLC, attorney).

In interpreting an exemption under the Statewide Non-residential Development Fee Act, N.J.S.A. 40:55D-8.1 to -8.7, the court found that an urban transit hub must be located within one-half mile radius surrounding the mid point of a New Jersey Transit Corporation, Port Authority Transit Corporation or Port Authority Trans-Hudson Corporation rail station platform area and be specifically delineated by the New Jersey Economic Development Authority (NJEDA). The court found that while the Subject Property was within one-half mile of a qualifying rail station, it was not specifically delineated by the NJEDA and thus was ineligible for the exemption under N.J.S.A. 40:55D-8.4(b)(4). Because the court found the Statute to be unambiguous and plain on its face, it declined to consult extrinsic sources in its interpretation of the statute.

Tax Court: Giant Realty, LLC v. Lavalette Borough; Docket No. 001063-20142014, opinion by Fiamingo, J.T.C., decided April 28, 2022. For plaintiff – Michael I. Schneck (Schneck Law Group, LLC., attorneys); for defendant - Dominic P. DiYanni (Eric M. Bernstein & Associates, LLC, attorneys).

HELD: Plaintiff moved to apply the provisions of the Freeze Act, N.J.S.A. 54:51A-8, for the judgment entered in tax year 2014 to tax years 2015 and 2016. Defendant opposed arguing that the issuance of a permit to develop the subject property under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 to -51 ("CAFRA"), constituted a change in value so that the Freeze Act should not apply. The court ruled that the issuance of a CAFRA permit in and of itself was insufficient to establish a prima facie case that an external change in the value of the subject property materialized which "substantially and meaningfully" increased the value of the property. Such change can only be demonstrated by showing the value of the property before and after the change. Having failed to make the required prima facie showing, defendant was not entitled to a plenary hearing on the applicability of the Freeze Act. Plaintiff’s motion to apply the Freeze Act was granted.

Tax Court: Twp. of Green v. Life With Joy, Inc.; Docket Nos. 009572-2016 and 009068-2018; Life With Joy, Inc. v. Twp. of Green; Docket Nos. 008566-2017, 013541-2019, 010728-2020; opinion by Bianco, J.T.C., decided March 24, 2022. For Life With Joy, Inc. – Jay J. Freireich (Freireich, LLC., attorney); For Twp. of Green – Robert B. McBriar (Schneck, Price, Smith, & King, LLP., attorneys).

In granting nonprofit status under N.J.S.A. 54:4-6.3, the court found that the Subject Property was actually used in furtherance of the nonprofit’s charitable purpose, to provide a living and learning center for young adults with developmental disabilities, and that any profit-making activity happening on the Subject Property pursuant to state designed and instituted programs was de minimis. The court dismissed the untimely 2019 appeal for lack of jurisdiction. In denying the township’s claim that the exemption must be denied in light of alleged zoning violations, the court revisited the current juxtaposition between municipal land use law and N.J.S.A. 54:4-6.3 presented by Soc’y of the Holy Child Jesus v. City of Summit, 418 N.J. Super. 365, 368 (App. Div. 2011).

Tax Court: Sylvester and Yongjie Touhy v. Director, Division of Taxation, Docket No. 013607-2018; opinion by Bedrin Murray, J.T.C., decided March 1, 2022. For plaintiffs – Sylvester Tuohy and Yongjie Tuohy (Self-Represented); for defendant – Miles Eckardt, Deputy Attorney General (Matthew Platkin, Acting Attorney General of New Jersey, attorney).

Held: Defendant’s motion for summary judgment seeking dismissal of a complaint challenging the assessment of New Jersey gross income tax ("NJ GIT") for tax year 2014 is granted. Plaintiffs contend that defendant improperly added back into their gross income the following: (1) dividends, (2) capital gains, and (3) wages withheld to fund a § 403(b) retirement plan. In addition, plaintiffs argue that defendant erroneously calculated their resident tax credit under N.J.S.A. 54A:4-1 for income subject to tax in other states or political subdivisions. As to the resident tax credit calculation, the court holds plaintiffs are collaterally estopped from relitigating this issue because they unsuccessfully litigated the same issue in the Tax Court for a prior tax year. Even if the principle of collateral estoppel was not applied, plaintiffs’ allegations are without merit based on statutory, regulatory, and case law. With regard to plaintiffs’ challenge to the addition of dividends, capital gains, and certain wages to their 2014 gross income, the court finds their arguments to be unsupported by statutory or regulatory law, or precedent. Thus, plaintiffs have failed to overcome the presumption of validity accorded to defendant’s interpretation of the relevant NJ GIT statutes. Therefore, summary judgment in favor of defendant is appropriate.

Tax Court: Branchburg Hospitality LLC v. Township of Branchburg, Docket No. 011494-21, opinion by Fiamingo, J.T.C., decided February 24, 2022. For plaintiff – Farhan Ali McCarter & English, LLP, attorneys); for defendant - Wesley E. Buirkle (DiFrancesco Bateman Kunzman, Davis, Lehrer & Flaum, P.C., attorneys).

HELD: Plaintiff timely appealed the decision of the County Board of Taxation which dismissed plaintiff’s petition pursuant to N.J.S.A. 54:4-34 (Chapter 91) for tax year 2021. Defendant moved before this court to dismiss plaintiff’s complaint for (a) lack of subject matter jurisdiction; (b) failure to pay taxes pursuant to N.J.S.A. 54:51A-1 and (c) failure to respond to a request for income and expense statement pursuant to Chapter 91. The court denied defendant’s motion to dismiss for lack of subject matter jurisdiction. The court found that plaintiff’s prior filing and withdrawal of a direct appeal as to which a judgment of dismissal was entered, did not bar plaintiff from filing an appeal at the County Board of Taxation for the same tax year, or from appealing the resultant decision of the County Board of Taxation to the Tax Court. The court however dismissed the complaint for failure to pay real property taxes as required by N.J.S.A. 54:51A-1(b) since plaintiff failed to produce sufficient proofs of the impact of COVID-19 on its ability to pay the taxes due. As a result, the court did not reach the merits defendant’s motion to dismiss for failure to comply with Chapter 91.

Tax Court: 3 University Plaza SPE, LLC/3 Univ. Plza SPE % Normandy RE P v. Hackensack City; Docket Nos. 005002-2014, 001670-2015, 003553-2016, 001163-2017, 003768-2018, and 012891-2019, opinion by Novin, J.T.C., decided February 24, 2022. For plaintiff – Michael J. Caccavelli and Grace Chun (Pearlman & Miranda, LLC, attorneys); for defendant – Kenneth A. Porro (Chasan Lamparello Mallon & Cappuzzo, P.C., attorneys).

The court found that no globally accepted practice has been adopted for the handling of tenant improvement allowances and leasing commission expenses under reconstructed operating statements. For local property tax valuation purposes, the decision to include or exclude tenant improvement allowances and leasing commissions, as stabilized operating expenses, is a function of context, the market, and the intended use of the appraisal report. The characterization of tenant improvement allowances and leasing commissions must be based on the appraiser’s examination of a property’s historical operations, and evaluation and analysis of market conditions. When tenant improvement allowances and leasing commission expenses are necessary to achieve economic or market rent, stabilize occupancy, and maintain a property’s value, they may be treated as operating expenses and deducted from effective gross income in calculating net operating income. However, an appraiser may reject certain expenses, including tenant improvement allowances and leasing commissions, when they are erratic, uncharacteristic, and not typical in the market or industry. Here, the court concluded that plaintiff’s expert’s approach, deducting tenant improvement allowances and leasing commissions as "above-the-line" stabilized operating expenses, was reasonable and supported by the trial record. The court further concluded that the Band of Investment technique provided the most accurate and reliable method of deriving a capitalization rate because it is not polluted or impacted by questions of how potential survey recipients perceived hypothetical transactional questions or how a market perceives an annually reoccurring operating expense. Finally, in reducing the property’s 2014 and 2015 tax assessments, the court found that the subject property’s 2019 sale was not credible evidence of true or fair market value. The court scheduled the 2016, 2017, 2018, and 2019 tax year matters for further proceedings.

Tax Court: Erez Holdings Urban Renewal, LLC, v. Director, Division of Taxation and Township of Lakewood, Docket No. 013941-2018, opinion by Sundar, P.J.T.C., decided February 1, 2022. For plaintiff - Catherine J. Bick (Giordiano Halleran Ciesla PC, attorneys); for defendants - Joseph Palumbo, Anthony D. Tancini (Andrew J. Bruck, Acting Attorney General of New Jersey, attorney); Harold H. Hensel (Secare & Hensel, attorneys).

Held: Plaintiff’s contention that the Non-Residential Development Fee (NRDF) imposed under N.J.S.A. 40:55D-8.4 should be computed by attributing $0 to equalized assessed value of the improvements because they are exempt from local property tax under the Long - Term Tax Exemption law, N.J.S.A. 40A:20-1 to -22, is rejected based on the plain language of the NRDF statute. The amount to be excluded for the parking lot when computing the NRDF is its value as determined under the accepted methods employed for valuing all real property in the local property tax arena (cost, income, comparable sales). The court’s standard of review of the assessor’s value determination of the parking lot for purposes of its exclusion when computing the NRDF, is the same as in local property tax matters. Thus, a presumptive correctness attaches to the assessor’s determination with the burden of proof upon the property owner to overcome the same and persuade the court that the exclusion amount should be different. Here, based on the evidence provided, plaintiff failed to persuade the court that the value of the parking lot to be excluded for purposes of calculating the NRDF should be $3,407,000. The court therefore affirms the final determination of defendant, Director, Division of Taxation, that the assessor of defendant, Township of Lakewood, correctly determined the NRDF.