Dear Mr. Maygarden:
You requested an Attorney General's opinion regarding the qualifications for the Special Assessment Level ("SAL") provided for under Article VII, Section 18 of the Louisiana Constitution of 1974. You indicate that your opinion request is based upon the following factual situation:
• A property resident is the principal beneficiary of a trust which owns the property.
• The property resident is applying for the SAL on the basis of disability.
• The property resident was determined eligible for disability benefits by Louisiana Rehabilitation Services, Department of Social Services.
Based upon these facts, your questions are as follows:
1. Can a disabled property owner receive the Special Assessment Level if his or her income is above the annual income level allowed for persons qualified for the Special Assessment Level?
2. If a disabled property owner is under age 65 and must meet the income requirement to receive the Special Assessment Level, is annual income certification required for them to maintain the Special Assessment Level?
3. Can a property occupied by the beneficiary of a trust receive the Special Assessment Level, either on the basis of age or disability?
Before addressing your question, we must advise that the determination of whether property is subject to homestead exemption and the SAL is a factual determination which is the responsibility of the various tax assessors, subject to review by the Louisiana Tax Commission and, ultimately, the courts. Article VII, Section 18 of the Louisiana Constitution of 1974 and R.S. 47:1952. In accord are Attorney General Opinion Nos. 00-321 and 01-315. *Page 2
With respect to your first and third questions, the requirements for the SAL are set forth in La.Const. Art. VII, Sec. 18, which provides in relevant part as follows:
(G)(1) Special Assessment Level
(a)(i) The assessment of residential property receiving the homestead exemption which is owned and occupied by any of the following and who meet all of the other requirements of this Section shall not be increased above the total assessment of that property for the first year that the owner qualifies for and receives the special assessment level, provided that such person or persons remain qualified for and receive the special assessment level:
* * * * *
(dd) Any person or persons permanently totally disabled as determined by a final non-appealable judgment of a court or as certified by a state or federal administrative agency charged with the responsibility for making determinations regarding disability.(ii) Any person or persons shall be prohibited from receiving the special assessment as provided in this Section if such person's or persons' adjusted gross income, as reported in the federal tax return for the year prior to the application for the special assessment, exceeds fifty thousand dollars. For persons applying for the special assessment whose filing status is married filing separately, the adjusted gross income for purposes of this Section shall be determined by combining the adjusted gross income on both federal tax returns. Beginning for the tax year 2001, and for each tax year thereafter, the fifty thousand dollar limit shall be adjusted annually by the Consumer Price Index as reported by the United States Government.
As can be gleaned from the above, to qualify for the SAL the following conditions must be met:
*Page 3(1) The residential property in question must be receiving the homestead exemption.
(2) The residential property must be owned and occupied by a person or persons permanently totally disabled as determined by a final non-appealable judgment of a court or as certified by a state or federal administrative agency charged with the responsibility for making determinations regarding disability.
(3) The person or persons' adjusted gross income, as reported in their prior year federal tax return, must not exceed a certain level.
For the purposes of your first and third questions, the pertinent conditions are the income level and ownership requirements. It is the opinion of this office that a person or persons must meet all of the conditions set forth in La.Const. Art. VII, Sec. 18, including income limitations and ownership, in order to receive the SAL.1 Thus, the answer to your first question is no. A disabled property owner cannot receive the SAL if his or her income is above the annual income level allowed for persons qualified for the SAL. The answer to your third question is also no. In order to receive the SAL, whether based upon age or disability, the property must be owned and occupied by an eligible person or persons. If the property is owned by a trust, then it is not owned and occupied by an eligible person.
As for your second question, the answer is yes. Art. VII, Sec. 18(G)(1)(a)(iv) provides:
(iv) An owner who is below the age of sixty-five and who has applied for and received the special assessment level may qualify for and receive the special assessment level in the subsequent year by certifying to the assessor of the parish, or in the parish of Orleans, the assessor of the district where the property is located, that such person or persons' adjusted gross income in the prior tax year satisfied the income requirement of this Section. The provisions of this Subsubparagraph (a)(iv) shall not apply to an owner who has qualified for and received the special assessment level for persons sixty-five years of age or older or to such owner's surviving spouse as described in Subsubparagraph (a)(i) of this Subparagraph.
This section requires an owner below the age of sixty-five who has applied for and received the SAL to certify that such person or persons' income satisfied the provisions of Article VII, Section 18(G)(1)(a)(ii) in the prior tax year in order to receive the SAL in the subsequent year. Thus, a disabled property owner under age sixty-five must certify that they meet the income requirements of Article VII, Section 18(G)(1)(a)(ii) on an annual basis.2 *Page 4
Trusting this adequately responds to your request, we remain
Yours very truly,
CHARLES C. FOTI, JR.
ATTORNEY GENERAL
BY: _________________________
KENNETH L. ROCHE, III
Assistant Attorney General
CCF, JR/KLR, III/crt
1 In accord is Attorney General Opinion No. 05-0132.
2 The provisions of this subsection do not apply to persons sixty-five years of age or older. For persons over the age of sixty-five who qualify for and receive the SAL, the SAL remains on the property as long as the owner who is sixty-five years of age or older remains the owner of the property. Article VII, Section 18(G)(2).