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BTD-1996 NPC 1 L.L.C. v. 350 Warren L.P.

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Argued September 17, 2001

This appeal requires our review of a Chancery Division determination, affirmed as modified by the Appellate Division, BTD-1996 NPC 1, L.L.C. v. 350 Warren, L.P., 333 N.J. Super. 476 (2000), holding unconstitutional as applied to plaintiff a provision of N.J.S.A. 22A:4-8 authorizing the collection of a Sheriff’s fee based on a settlement that occurred subsequent to the entry of a final judgment of foreclosure and issuance of a Writ of Execution. The Chancery Division determined that the fee in question was essentially equivalent to a tax. The Appellate Division agreed, a divided panel of that court also concluding that the levy was unenforceable in the absence of legislative intent to impose a tax on the users of Sheriffs’ services. Id. at 484.

We conclude that the record before us clearly is inadequate to support the Chancery Division’s conclusion that the charge authorized by the statute “?is intended primarily to raise revenue, and not to compensate the governmental entity for the cost of providing the service.’” Id. at 479. Moreover, absent any procedural challenge to the enactment of N.J.S.A. 22A:4-8, see N.J. Const. art. IV, � 6, � 1 (requiring that revenue bills originate in the General Assembly), we disagree with the holding of the majority below that the statute, if determined to be a tax, is unenforceable absent a legislative intent to impose a tax. Accordingly, we reverse the judgment below.

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