EA MNEY GENERAL
XAS
AUSTIN,TEXAR 78711
CWAWPORD c. MAIRTlN
.aT-roRNEY CaENIFRAL
October 5, 1970
Honorable Ted Butler Opinion No. M-701
Criminal District Attorney
Bexar County, Texas Re: The imposition of'ad valorem
San Antonio, Texas tax under Article 7146, V.C.S.
as amended, upon mobile homes
or trailers, which are owned
by nonresident servicemen
and are temporarily situated
withInTexas ,uponproperty
Dear Mr. Butler: not owned by the nonresident.
Your request for an opinion poses the following question:
. . 1 does your Opinion No. Ww-742 still
remaiq effect,iveor with the Amendment to
Article 7146, V.A.T.S., do you have another' ~"I
opinion?',
:
: Article 7146,:Vernon's Civil Statutes, as amended by Acts
1969, 61st Leg., eff.'September,1, 1969, reads'as foll.ows:
"Real property for the purpose of taxation,
shall be construed to Include the land itself,
whether laid out In town lots or otherwise
and all buildings, structures, and lmprove-
ments, or other fixtures of whatsoever kind
thereon, and all the rights and privlleges
belonging or in anywise appertaining'thereto,
and all mines, minerals, quarries and fossils
in and under the same, and forms of housing .'
adaptabae to motlvatlon'by a p.ower connected.
thereto commonly called 'trallers.',or~krabile
homes,' which are or can be used for resideritialp
business, commercial, or office purposes., except
those located within the boundaries of an asses-
sing unit for less than 60 days or unoccupied
and for sale. The value of any trailer or mobile
home shall not be included in the assessment of
the land on which It is located, unless both the
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Honorable Ted Butler, Page 2,: ~. (M-701)
land and the trailer or mobile home are
owned by the same person. If the owner of
the trailer or mobile home is not the owner
of the.land, the trailer or mobile home 'shall
be rendered for taxation separately from the
land and taxes assessed shall be.a liability
of the owner of the trailer or mobile home, and
not a liability of the landowner. Land on which
a trailer or mobile home is located shall not
be subject to execution for the collection of
taxes assessed against a trailer or mobile home ,.:
unless both are owned by the same person.% "'," .:
Opinion No. WW-742 (1959), dealt with the question of
whether a house trailer owned~by a nonresident serviceman
could be considered real property and subject to ad valorem
taxation if it was situated on a plot of land owned by the
nonresident serviceman, who did not intend that the house
trailer should become a permanent part of the land, but merely
his,temporary residence during his period of duty in the .State.
of Texas. In that opinion this office determined by the use
of Texas case law criteria defining real property that the
trailer remained personalty inasmuch as the party annexing
the trailer to the lot did not intend that It become a per-
manent accession to the freehold. Further, the trailer was
determined nontaxable under the Soldiers and Sailors' Relief
Act, 50 USC App 574, which read and still reads, 121,1?%,?%.a?
x5rlows : . :
"For the purposes of taxation in respect of the
~personal property~. . . of any such person (a
serviceman) by any State . . .,of which such
person is not a resident or in which he is not
dcnniciled. . . personal property shall not be
deemed to be ldcated or present in or have a
situs for taxation in such 'state. i s ."
Article 7146, Vernon's Civil Statutes, before its amend-
ment in 196g'and at the time Opinion No'W-742 was issued,
provided: ._
“Real property for the purpose of taxation, ‘.
shall be construed to include the land itself,
whether laid out in town lots~or otherwise,
and all buildings, structures and improve'-
ments, or other fixtures of whatsoever kind
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Honorable Ted Butler, Page 3,(M-701) " _,
thereon, and all the rights and privileges
belonging or in any wise appertaining thereto,
and all mines, minerals, quarries and fossils
in and under the same.'
Thus, mobile homes or trailers were not specifically
defined as real property under Article 7146, Vernon's Civil
Statutes,~until this Article was amended on September 1, 1969.
,Before this date, as was done in Opln,lonWW-742, it was neces-
sary to apply the case law rules of fixtures .to determine:.,
whether property was realty or personalty within the meaning
of Article 7146, However, once the amendment became effec-
tive on the date heretofore mentioned, mobile homes ~or,t~railers
became real orooertv for ad valorem tax ourooses and were~no
lonaer subie;t 'tomketing the definition*set forth in case
authorities e Hurt v. $oope~r,110 S.W.2d 896 (Tex.Sup.
1937) : "Thk si%&e having def ?i?iedthe word,'we are not'con-
cerned Mrith its usual meaning.'! Gifford-Hill & Co. v."State
of Texasi, 442 S.W.2d 320 (Tex.Sup. 1969) : "In imposing the
sales tanix.from which this litigation arose the Legislature
has specifically defined the term 'sale.' This definition is
binding on the courts in an interpretation of this Article.")
In New York Mobile HomesAssociatIon v. Steckel. 9 N.Y.2d
z53ip;15 N.Y.S.2d 487, 175 N.E.2d 151 816A.L.R,2d 270.(N.Y. Ct.
* 1961), the New York Court uph&d an ad valorem tax pro-
vision defining the terms "lands9" 'real estateg,"and "real
property" as "forms‘of housing adaptable to motivation by a
power connected thereto, commonly called 'trailers@ or !mobile
homes,' which are or can be used for residential, business,
commercial or office purposes, except those (1) located within
the boundaries of an assessing unit for less than 60 days D o -’
The Court determined the trailers or mobile homes were used as
residences, that they remained stationary, that their water
supply came from tubing attached to an outlet in the ground,
that they were connected to the tark sewage system and that
they were set on blocks so that m 0 0 there is a rational
basis for the legislative classification a 0 *",of mobile
homes or trailers as real property.
It is, therefore, apparent that Article 7146, Vernon's
Civil Statutes, as amended9 has changed Opinion WW-742, unless
this Article as emended conflicts or interferes with 50 USC
App. 574, Soldiers and Sailors' Relief Act, in which case the
"Supremacy Clause" rule as itvree v. Bland, 82
s.ct. 1089, 369 u-s, 663 (1962) would apply. The United
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Honorable,Ted Butler, Page &,(M-701)~
States Supreme Court in Free v. Bland, supra, held that a ~.
Texas statutory enactment conflicted with a United States
Treasury Regulation. In making this determination, the,
Court pronounced the "Supremacy Clause" rule:'
II
. . . The relative Importance to the State of
'Its own law is not material when the~reis a con-
flict with a valid federal law, for the,Framers
of our Constitution provided~that the federal
law must prevail. ,Artidle'VI,,,Ciaus'e,~2a'~:'This
principle was made clear by Chief Justice., :
Marshall when he stated'for the Court that:&iy'
state law, however clearly within a State'.s '.'.~,
acknowledged power, which interferes with or'
is contrary to federal law, must yield,"
In reaching an opinion on whether there is a conflict,.
between'state and federal law in this 'situation,'thehist'ory
of state taxation of nonresident servicemen under the Soldiers
and Sailors' Relief Act, supra, must be reviewed. Four impor-
tant United States Supreme Court decisions under the above
mentioned Act are Dameron v. Brodhead,,345 U.S.
v. Busard 3
v. Neal, 382 U.S. ~9~8~‘~:&!?fi85
States, 895 U.S. 169,.89 S.Ct.
A Colorado personal property ad valorem tax imposed on
property of a nonresident Air Force officer was held.invalid,
in Demeron v. Brodhead, supra. In reaching its decision; the
couwoldiers and Sailors' Relief Act stated:
. . . For this statute merely states that
the taxable domicile of servicemen'shall not
be changed by military assignment. This we
think is within the federal power.
. . . There is no suggestion that the state
of original residence must.have imposed a'prop-
erty tax. O . . Congress appears to have chosen
the broader technique of the statute carefully;
freeing servicemen from both income and property
taxes imposed by any state by virtue of their
presence there as a result of military orders.
It saved the sole right of taxation to the state
of original residence whether or not that state
exercised the right. O s .
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Honorable'Ted Butler, Page 5,(M- 701)
I,
We reject the argument that the
word ;deemed' as used implies a rebuttable
presumption as to permit taxation in the
state of temporary presence in some cases."
The court in California v, Buzard, supras struck down a
California "license fee" imposed uoon a nonresident service-
man, who attempted to register his-motor vehicle in that state.
The court held that California could collect the tax under the
soldiers and Sailors' Relief Act only if it was a "license,
fee. or excise" on the motor vehiicle and. that since the pur-
pose of the California Act was for general revenue? it dfd not
meet the test of being a "license, fee, or excise, ' The Court
stated:
It. 0 The very purpose of #574 in broadly
freeing the nonresident serviceman from'the
obligation to pay property and income taxes
was to relieve him of the burden of support-
ing the governments of the States where he
was present solely in compliance with mili-
tary orders. e D *"
The authority of a state to levy personal property ad
valorem taxes on a nonresident serviceman's house trailer under
the Soldiers and Sailors 1 Relief Act was determined in Sna
----F&
Neal, supra. The serviceman had not registered or lfcense
trailer or paid,any taxes on itin his home state, The,Court
held therein:
"This a companion case to California v.
Buzard. e D 0 We reverse on the author-
ity of our holding today in Buzard that
the failure to pay the motor vehicle
'license, fee, or excise' of the home
State entitles the host State only to
exact motor vehicle taxes qualifying as
'licenses, fees, or excises,s the ad
valorem tax, as the Mississippi Supreme
Court acknowledged, is not such an
exactfon. 0 D 0
A Sales and Use Tax on a nonresi'dentserviceman was upheld
In Sullivan v, United States, supra, as not being within the
coverage of the A ct 0 The following quotation reflects:
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Honorable Ted Butler, Page 6,(M- 7Oi)'
'Section 574 does not relieve servicemen
stationed away fromhome from all taxes:of
the host State. It was enacted with the
much narrower design 't prevent multiple
State taxation ~of the pFoperty.1' And the:. ~
substantial risk of double taxatkon:un$er::~'
multi-state ad valorem property taxes'does~
not exist with respect to sales and use
taxes. . . ." (Emphasis added.)
Thus, it is apparent that State ad valorenitaxes..
onper- :
sonal property of nonresident military personnel will not be
upheld inasmuch as they violate the Soldiers and Sailors'Relief
Act, supra.
The case of United States v. Chester CountvBoard of Assess-
ment and.Revisio
Supp. 1001 (E.D.
property taxes on house trailen longing.to nonresldentservice-
men. The Pennsylvania Act defined "Real Estate" as ": . . house
trailers and mobile homes permanently attached to land or con-
nected with water, gas, electric or sewage facilities,,.,. '. ."
In reviewing this provision, the Court .determined:
11
..,.
"The salutory purpose of the.federal act
[Soldiers and Sailors' Relief Act] is to
relieve nonresident servicemen of the bur-
den of supporting state and local govern-
ments, whenever their presence results
solely from compliance with military orders.
11
. . . .
"In effect; ,by appropriate exercisesof its, %
taxing powers, Pennsylvania has givenan.
artificial, statutory real property desig-
nation to a specific class of house trailers
which. otherwise, still retain the basic
characteristic of tangible personal prop-
erty,'namely, mobility.
"We conclude that this statute, intended to
raise revenue for the ooeration of local
governments within the &ate,.as sought to
be applied to the personal property,of.non-
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Ted Butler,,Page 7,(M- 701)
resident servicemen in active service
under military orders, is in irreconcfl-
able conflict with the clearly defined
Congressional purpose of #574 fn broadiy
freeing the nonresident servicemen from~
the obligation to pay property and income
taxes. . . .
Thus, under federal case law authority, a state cannot
through statutory enactment change the nature of property and
tax that property when it was prohibited by federal law from
taxing the property in its original nature. To state the rule
more simply, a State cannot tax indirectly what It is prohibited
by federal law from taxing directly. To apply a real property
ad valorem tax to the property in question would result in a
pyramiding of taxes, because the State of the servicemen's
domicile would still have the right to levy an ad valorem tax
on the same.property. As stated in the ca,seshe,reinabpveU.
cited, the purpose of the Soldiers and Sailors' Relfef Act
Is to remedy this situation.
On the basis of this reasoning, it is concluded that the
"Supremacy Clause" of the United States Constitutfon prohibits
the application of Article 7146 to the factual sftuatfon in
auestlon inasmuch as this Article interferes with 50 U,S,C.
App. 574, Soldiers and Sailors' Relief Act,~ and mustyield to
the provisions of that Act. We are of the opfnfon thatmobfle
homes or trailers of nonresident servfcemen are not subject to
ad valorem taxation.
SUMMARY
Article 7146, V.C,S,, defining mobile
homes or trailers as real property for
ad valorem tax purposes must yield to the
provisions of 50 U.S.C, App. 57b9 Soldiers
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Honorable Ted Butler, page 8,(ti- 701)
and Sailors' Relief Act, by virtue of
th "Supremacy Cl " of the United
Stztes Constituti%~e*rtiele VI, Clause
2. Thus;'mobile homes or trailers owned
by nonresident
ject to ad'valorem taxation.
Atto ey General of Texas
Prepared by Harriet D. Burke lT
Assistant At,torneyGeneral
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
S, J. Arenson
R. D, Green
Jack Sparks
John Reese
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant '
NOLA WRITE
First Assistant
,