**NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINION**  **S**

**_______________________________ SHERYL ALEMANY,**  **: TAX COURT OF NEW JERSEY**  **: DOCKET NO. 007209** 

**- 2023**  **:**

**Plaintiff, :**  **:**

**v. :**  **: TOWNSHIP OF**  **MARLBORO , :**  **:**

**Defendant. :** 

**______________________________ :**  **Decided: January 2 9**  **, 2024 Sheryl Alemany**  **, plaintiff**  **(self**

**- represented)** 

**. Lani M.**  **Lombardi for defendant**  **( Cleary Giacobbe Alfieri Jacobs, LLC**  **, attorneys ).**  **SUNDAR, P.**  **J.T.C. This opinion decides whether**  **the homestead**  **of plaintiff, a veteran, qualifies**  **for l ocal property tax exemption**  **u nder N.J.S.A. 54:4** 

**- 3.30(1)(a), as amended by**  **L.**
**2019 ,**  **c. 413**  **. This statu t**  **e grants an exemption if the veteran**  **was “honorably discharged or released under honorable circumstances, from active service in a**  **ny branch of the Armed Forces of the United States**  **,” and is declared totally and**  **permanently disabled due to a “**  **service**

**- connected disability**  **” by the**  **federal Department of Veterans**  **’ Affairs (**  **“ VA**  **”). Approved for Publication**  **In the New Jersey Tax Court Reports** **2**

**Plaintiff contends that the exemption is warranted because she satisfies the statutory conditions. Defendant,**  **the Township of Marlboro (**  **“ Township**  **” ) argues**  **that since plaintiff**  **served in the Army National Guard and was discharged from active** 

**- duty**  **training, the exemption does not apply.**  **For the reasons explained below, the court finds that plaintiff**  **is entitled to the exemption.** 
PROCEDURAL HISTORY A ND FACTS **On May 7, 2023, plaintiff**  **timely filed a complaint with**  **this court appealing the**  **judgment of the Mon**  **m outh County Board of Taxation**  **(“ County Board**  **”). That**  **judgment was issued using code 12B, which stands for**  **“100% Disabled Veteran Denied.”**  **On July 27, 2023, the court issued a trial notice that the matter woul d be heard**  **on August 16, 2023. The matter was heard on September 1, 2023 , wherein pa**  **rties presented their arguments and proffered, without objections, their respective**  **exhibits. The Township’s factual documents were those provided to its assessor by plai**  **ntiff in support of her claim for exemption, and the assessor’s determination in**  **this regard . Some of**  **the same documents were included by**  **plaintiff as her**  **exhibits**

**. 1** 

**1 There was no need for trial testimony since**  **, based on the undisputed documents, there was no**  **quarrel that plaintiff**  **served in the U.S. Army**  **National Guard, she was declared 100% disabled by the VA due to a service** 

**- connected disability, and that she was honorably**  **released/dis charged by**  **the U.S. Army. Arguments therefore centered on whether plaintiff**  **qualified for tax exemption.** **3**

**Post**

**- hearing, the court directed the parties to brief**  **whether the legislative**  **history of**  **L. 2019,**  **c. 413 impacted**  **the parties’ respective positions. Both parties filed a**  **n initial brief** 

**. W ith the court’s permission,**  **plaintiff also filed**  **a reply to the**  **Township’s post**

**- hearing brief.**  **2 The following are the facts based on the**  **undisputed documents submitted to**  **the court**

**. Plaintiff**  **is a New Jersey resident. She owns a residence (identified as Block 252, Lot 23) in the Township. On January 20, 2023, the**  **V A notified**  **her that**  **she is entitl**  **ed to benefits commencing December 1, 2022, because effective March**  **29, 2021, she was determined to be totally and permanently disabled solely due to**  **her service**

**- connected disabilities. The letter noted that she served in the Army,**  **entered “active duty” o n March 26, 2012, and was released/discharged honorably on**  **August 16, 2012, although there may have been additional periods of service. Based on the above,**  **plaintiff applied for local property tax exemption (Form**  **D.V.S.S.E.) on January 23, 2023. She inclu ded the**  **Certificate of Release or**

**2 Although the Township declined**  **to file a response to**  **plaintiff’s initial post** 

**- hearing brief,**  **it filed a letter**  **(claiming them to be “comments”), objecting to certain contentions in that brief.**  **One contention was**  **plaintiff’s claim that**  **, as evidenced from the New York Orders (“SAD 316**  **-2647”), she was “called into State Active Duty (SAD) under section 316**  **as referenc ed in . . .**  **10 U.S.C. ”**  **thus, she “**  **unquestionably meet [s]**  **the law’s definition of full-time National Guard Duty which meets the definition of**  **‘ active service**  **.’” This ,**  **per the Township ,**  **should be disregarded because there was no trial testimony in this rega**  **rd . The court therefore conferenced the matter to ensure**  **that there**  **wa s**  **no confusion , and**  **afforded t he Township the opportunity to open the**  **record for any testimony**  **it desired . The Township declined and noted that the purpose of its comments w**  **as merely**  **t o point out**  **that plaintiff’s interpretation of the New York orders and her explanation of**  **the acronym “SAD” (which allegedly was un**

**- abbreviated**  **as State Active Duty for the first tim**  **e )**  **are mere lay opinions. The court does not consider these “comments” as relevant since its**  **decision is not based upon, nor impacted by,**  **plaintiff’s New York services** 

**. 4** 

**Discharge from Active Duty ( Form**  **DD 214 or DD**

**- 214) dated August 8, 2012,**  **which stat**  **ed that**  **she was in the “ARMY/ARNGUS**  **, ” enlisted in the Army**  **on November 9, 2011, and was transferred from Missouri to the U.S. Army National**  **Guard of New York on August 8, 2012, after a “net active service” of four months, which was for “initial entry training.” The certificate noted that she “has completed**  **first ful l term of service” honorably.**  **The “type of separation” was “release from active** 

**- duty**  **training” which means “completion of required active service” under Army Regulation 635** 

**- 200.**  **3 Plaintiff was also called into active duty by the State of New York in** 
**Nov ember 2012.**  **Two Orders from the Office of the Adjutant General, New York (numbered SAD 316** 

**- 2647 and SAD 330** 

**- 1889)**  **were issued in this regard,**  **ordering plaintiff**  **, at the direction of the Governor, “into the active military service of the State of New York”**  **for the purposes of “support of Operation Sandy,” pursuant to “Section 6, Military Law, State of New York” for two separate periods: Nove**  **mber 10 through November 12, 2012; and November 13 and 14, 2012. Mrs. Alemany was**  **required to report to Jamaica, New York ,**  **both times**

**. On**  **January 31, 2023, the Township’s assessor denied the tax exemption on**  **grounds “[w]e use the information that is on your DD** 

**- 214 and** 

**. . . that document** 

**3 Plaintiff**  **provided the Township with**  **other documents which showed that she continued to serve in the**  **Army National Guard until her commitment period ended in 2019. The court deems them**  **relevant only as proof of her service in the Army**  **National Guard from 2011 to 2019. 5** 

**states that you were called to active duty for training purposes**

**. ” The assessor** 
**at tached an explanation**  **routinely sent by the New Jersey D ivision of Taxation**  **(“Taxation”) to veterans requiring clarification “as to why [veterans] discharged**  **from the National Guard do not qualify” for a statutory deduction or exemption. Th**  **e explanation**  **s tated that per**  **N.J.A.C. 18:27**

**- 2.2(d)**  **, “ ineligible service” for purposes**  **of the exemption means**  **“[a]ctive duty training or fie l**  **d training as a member of a reserve component of the Armed Forces of the United States during the pendency of** 

**a conflict,” thus, “[s]uch military service is not eligible military service for the**  **purposes of qualifying for the veterans’ tax deduction.” 4**  **It further noted that Taxation**  **’s regulations,**

**long interpreted the term ‘active service in the Armed Forces of th**  **e United States’ to include . . . activation to regular active duty for Reserve Components, and**  **federalization of National Guard Units. The initial regulations from 1948 and 1951 concerning veterans’**  **property tax benefits allowed for members of the Armed Forces Reserves and National Guard to be eligible for**  **those benefits only if their units were activated into federal service.** 

**4 Note that N.J.A.C. 18:28-2.7(b) mirrors this ineligibility and provides as follows:**  **Ineligible service. Active duty is defined in N.J.S.A. 38A:1-**  **1(i ) as full** 

**- time duty**  **in active military services of the United States. Active duty for training or field training as a member of a reserve component of the Armed Forces of the United**  **States during the pendency of a conflict**  **does not constitute active duty o r active**  **service in time of war for the purpose of qualifying for the veteran’s tax exemption. [50 N.J.R. 1501(a)**  **(July 2, 2018)**  **(emphasis added).]** **6**

**T axation’s interpretation, the explanation noted,**  **was upheld in Township of Dover**  **v. Scuorzo, 392 N.J. Super. 466 (App. Div. 2007 )**  **and supported by a 1973**  **New Jersey**  **Attorney General ’s**  **opinion (**  **“members of the Armed Forces Reserves and National Guard would not qualify for the property tax benefits if they served periods**  **of ‘active duty for training’” vis -à-**  **vis the Vietnam War**  **, unles s “their unit was**  **activated by Presidential or Congressional order” ).**  **Further, T**  **axation’s explanation noted,**  **while L.**  **20 19,**  **c. 413**  **eliminated the wartime service requirement, the condition for “active military service is still**  **required.” Th us**  **, “that requirement has retained its same scope” as previously interpreted to exclude any training service**  **and that**  **:**

**[i] f the New Jersey Legislature disagreed with the long** 

**** **standing interpretation of ‘active duty’ in the regulations on veterans’ property tax benefits and the judicial approval**  **thereof, it could have amended the statutes to extend these benefits to Reservists and National Guard per**  **sonnel with active duty for training. When the bill that was enacted as**  **P.L. 2019, c.413 was first introduced, it had language specifically qualifying service ‘in a reserve component.’**  **That language was deleted in Committee, evincing the Legislature’s in**  **tent to retain the existing requirements of active duty.** 
ANALYSIS **The New Jersey Constitution allows real property owned by veterans**  **who are New Jersey residents**  **, to benefit from special local property tax treatment if they are**  **“now or hereafter honorably discharged or released under honorable cir cumstances** **7**

**from active service in any branch of the Armed Forces of the United States” when declared by the VA to have experienced a**  **“ service** 

**- connected disability.**  **” N.J.** 
**Const. art. VIII, § I, ¶ 3(a).**  **Prior to 2020, the above provision granted the benefits provided th at a v**  **eteran was honorably discharged “from active service in time of war in any branch of the**  **armed forces of the Unit ed States.”**  **L. 2019,**  **c. 413 deleted the phrase “in time of** 

**war .” S**  **ee S.**  **Comm. Substitute for S**

**. 2599**  **(2019) . A**  **constitutional amendment in this regard was approved by the voters effective December 3, 2020. The purpose of**  **the amendment was to allow veterans who did not serve in time of war or other**  **emergency, i.e., “peacetime veterans ,**  **” to enjoy the**  **benefit of**  **the exemption.**  **S. Budget & Appropriations**  **Comm. Statement to S**

**. Comm. Substitute for S** 

**. 2599**  **(2020). Consequently, the definition of “active service in time of war” in N.J.S.A.** 
**5 4:4** 

**- 8.10(1)(a); 54:4** 

**- 8.11(a); and 54:4** 

**- 3.33a was repealed. The phrase “in time**  **of war” was simultaneously removed from other statutory provisions.**  **See e.g. ,**  **N.J.S.A. 54:4**

**- 3.30**  **( exemption entitlement); N.J.S.A. 54:4** 

**- 3.31 (**  **application for**  **exemption );**  **N.J.S.A. 54:4** 

**- 8.10 (definitions);**  **5 N.J.S.A.**  **54:4**

**- 8.11**  **(deduction entitlement); N.J.S**  **.A. 54: 4-**  **8.12 (application for deduction**  **).**

**5 Amendments by**  **S. Comm. Substitute for S**  **. 2599 were as follows: (phrase in parenthesis**  **deleted) :** **8**

**Thus, the relevant statute, N.J.S.A. 54:4**

**- 3.30, now provides that a home**  **owned by a New Jersey resident is exempt from local property tax if the owner is a veteran who is/was honorably discharged**  **or released “from**  **active service in any branch of the Armed Forces of the United States” and is/was declared by the VA to**  **be totally or permanently disabled due to a “service** 

**- connected disability.” There is**  **no dispute as to four of the five criteria, i.e., that plaintiff**  **is a New Jersey resident; she owns her primary residence in New Jersey; she was honorably**  **releas ed by the**  **U.S. Army; and she was declared by the VA to be 100% permanently disabled due to a service** 

**- connected disability. The only issue is whether**  **plaintiff was**  **honorably discharged**  **or released “from active service in any branch” of the U.S. Armed Forces** 

**. T**  **he term “active service” remains**  **undefined in N.J.S.A. 54:4**

**- 8.10 or elsewhere in**  **the local property tax statutes. The term “armed forces” is defined as i**  **ncluding the “United States Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard, including the re**  **serve components thereof.” 38**  **U.S.C. §**  **101(a)(10). The**  **U.S. Army**  **National Guard**  **is a** 

**“‘Honorably discharged . . . from active service [in time of war]’ means and includes eve ry form**  **of separation from active, full-time duty with military or naval pay and allowanc es in some branch**  **of the Armed Forces of the United States [in time of war] . . . .” N.J.S.A. 54:4-8.10(d). “Veteran” means any citizen and resident of this State honorably discharged or relea**  **sed under honorable circumstances from active service [in time of war] in any branch of th**  **e Armed Forces of the United States. N.J.S.A. 54:4-8.10(h).**  **“No application for a veteran’s deduction based upon service in the” United States A rmed**  **Forces “shall be allowed unless there is annexed thereto a copy . . . of claimant’ s certificate of**  **honorable discharge . . . from active service [in time of war] in a branch of the Armed Forces of**  **the United States.” N.J.S.A. 54:4-8.12. 9** 

**reserve component**  **of the**  **U.S. Armed**  **Forces. 38 U.S.C.**  **§ 1 01(a)(27).**  **See also 10** 
**U.S.C. §**  **101(c)(1); (c)(3)**  **(“‘National Guard’**  **means the**  **Army National**  **Guard ,’**  **” and**  **“‘Army National**  **Guard of**  **the United**  **States’ means the reserve component of**  **the Army all of whose members are members of the Army National Guard ’**  **”) ; 1**  **0 U.S.C. § 10101(1)**  **(“The reserve components of the armed forces are . . . [t]he Army National Guard of the United States.”); 32 U.S.C. § 101(5) (same)** 

**. 6**  **It is undisputed ,**  **and as evidenced by the documents, that plaintiff**  **served in the Army National Guard starting in 2011 and ending in 2019. During this time, she**  **completed her initial required active**

**- duty**  **training, and**  **thereafter, continued to serve (**  **and on two occasions , served**  **in state active duty in New York under order s of the**  **Governor of that State ),**  **through and until 2019** 

**. The Township**  **emphasizes that Form**  **DD**

**- 214 shows**  **plaintiff was discharged**  **because she completed “active duty training ,**  **” and training in the National Guard is** 
**not covered under**  **N.J.S.A. 54:3**

**- 3.30.**  **T he court is unpersuaded by this argument.**  **First, o ur**  **Constitution and N.J.S.A. 54:4**

**- 3.30 only require that a veteran have been**  **in “active service.” The May 2018 regulation**  **( see**  **p.5 and n.4 of this opinion**  **) , is**  **tied to the requirement of at time of war or conflict, thus, does not apply. Therefore,** 

**6 10**  **U.S.C. §§ 101-20605, address the Armed Forces, and Subtitle A (Parts 1** 

**- V) addresses**  **General Military Law.**  **32 U.S.C. §§101 -908,**  **address the National Guard. 38 U.S.C.**  **§§ 101-8528, address Veterans’ Benefits (monetary compensation).** **10**

**the validity of the**  **Townsh i**  **p’s sole basis for denying an exemption, i.e., that plaintiff**  **was released “from active duty training” is questionable. Second, the For**  **m DD- 214 contains**  **much more tha n**  **just the type of separation.**  **It states that plaintiff**  **served in the “ARMY/ARNGUS” from March through August 2012**  **. Box 12 of the Form, titled “Record of Service” shows that her “net**  **active service ”**  **period as four**  **months and 21 days, from March 2012 to August 2012 (as compared to her “total prior inactive service” period of four mont**  **hs) (emphasis added). This period (**  **four months and 21 days) was for**  **“initial entry training.” The**  **DD- 214 also indicates that she comp**  **leted her “**  **first full term of service**  **,” (emphasis added) and was therefore released from “active duty training”**  **for transfer to the National Guard of New York.**  **Thus, the Township’s isolated emphasis on the phrase “active duty training” is misplaced.**  **Third , t**  **he term “active service” is defined under the federal military law as “active duty or full** 

**- time National Guard duty.” 10 U.S.C. § 101(d)(3). In turn, the**  **phrase “full**

**- time National Guard duty” is defined to mean any duty, including**  **training (but not i nactive duty) which is “performed by a member of the Army**  **National Guard of the United States . . . in the member’s status as a member of the 11** 

**National Guard of a State or territory.” 10 U.S.C. § 101(d)(5). Thus, full**

**- time**  **National Guard duty is consider**  **ed as “active service” in the Army.**  **7 Therefore,**  **pursuant to the 2012 Form DD**

**- 214 (used by the Township’s**  **assessor) and the VA’s determination that plaintiff**  **was 100% disabled due to her service** 

**- connected disability, she qualifies for local property tax exemption under** 
**N.J.S.A. 54:3**

**- 3.30.**  **The court’s conclusion does not require any further analysis into the Township’s**  **arguments that (1) the term**  **“active service” in N.J.S.A. 54:3**

**- 3.30**  **does not extend to the National Guard**  **pursuant to controlling precedent; (2) the legislative history of**  **L. 2019,**  **c. 413**  **, evidences an intent to deny exemption because**  **S. Comm.**  **Substitute for S**

**. 2599**  **omitted the phrase “or a reserve component thereof” proposed in the original bill (**  **S. 2599**  **); and**  **, (3)**  **plaintiff’s se rvice**  **in New York is ir relevant**  **for purposes of N.J.S.A. 54:4**

**- 3.30.**  **The court however**  **notes that continued**  **reliance on prior precedents for**  **the definition of the term “active service” is**  **problematic. The**  **conclusions therein**  **were premised up**  **on (i.e., tied to) satisfying the**  **requirement of the**  **qualifying p**  **hrase “in time of war.” See e.g. ,**  **Scuorzo , 392 N.J. Super. at 479**  **(proper to deny tax exemption “to veterans of the National Guard and Reserves**

**7 T**  **hus, exclusion of “full-time National Guard duty” in the definition of “active duty ,”**  **in 10 U.S.C.**  **§ 101(d)(1), does not control**  **because the controlling statute here, N.J.S.A. 54:4**  **-3.30, does not**  **require “active duty.”**  **Note that although the federal Veterans’ Benefits law excludes “active duty for training” from the definition of “active duty**  **”, see**  **38 U.S.C. § 101(21)(A), it nonetheless in**  **cludes “any period of active duty for training during which the individual concerned was**  **disabled ”,**  **as “active military service.” See 38 U.S.C. § 101(24)(B).** **12**

**whose only service during war was for training pu rposes”); 38 N.J.R. 2105(a) (May**  **2006) (deduction allowed only if “[r]eserve unit personnel” were “detailed for and in active service in time of war”). The 1973 New Jersey Attorney General’s opinion**  **referenced in in Taxation’s explanation attached to**  **plai ntiff’s**  **exemption denial (and**  **cited in Scuorzo**  **, 392 N.J. Super. at 47 5**  **) was also in the context of the Vietnam W**  **ar. Also, the earlier regulations in 1948 and 1951 concluded that the National Guard is**  **“not to be considered [a] branch[] of the armed forces, ”**  **see id.**  **at 472, whereas the federal definitions are to the contrary.**  **The court also notes that the lack of definition of the term “active service”**  **in the**  **local property tax statutes**  **is problematic. This is because it requires**  **courts to delv**  **e into a myriad of federal or State definitions in this regard**  **(some under the military laws, some under the benefits laws**  **, each with a different purpose and**
**scope )**  **, to determine whether**  **a disabled**  **veteran was in “active service .”**  **This is a**  **somewhat counter**

**- intuitive exercise**  **when the purpose of**  **L. 2019**  **, c.**  **413 is**  **to extend/expand local (i.e., non** 

**- federal) benefits to a larger population of local (i.e.,**  **New Jersey) veterans, not to a**  **less er number** 

**. The Legislature’s generosity could**  **thus be undermined since d efinitional ambiguities**  **can lead to**  **a lack of clarity**  **in that court decisions**  **may differ as to when ,**  **or whether ,**  **a federal /state**  **definition should apply/**  **control. The Legislature appears to be cognizant that this is a troublesome**  **issue. See**  **S. 2227**  **(2022) (the multitudinous definitions of a veteran or qualificati on** **13**

**for a benefit is to a veteran’s disadvantage ,**  **and proposing a commission to study these pro**  **blems to**  **“recommend changes . . . that may provide greater uniformity and be less restrictive.” One noted instance of confusion was where “[s]ome of the**  **definitions include requiring active service in specific wars and conflicts, requiring that a veteran**  **must have served at least 90 days on active duty on the Armed Forces, or simply requiring that a veteran served in the Armed Forces”).**  **8**
CONCLUSION **For the reasons explained above, the court finds that**  **plaintiff qualifies for**  **local property tax exemption under N.J.S.A. 54:4** 

**- 3.30. Therefore,**  **the judgment of the County Board**  **is reversed**

**. An Order and Final Judgment in this**  **matter will be**  **entered.**

**8 The Bill passed the Senate on June 29, 2022, and is pending review by the Assembly Military**  **an d Veterans’ Affairs Committee.**