Untitled Texas Attorney General Opinion ( 1959 )

OF 7rExAs
WILSON
AA. /9&9U
FVILI.
November 25, 1959’
.&TrO- GENERAL
-id- & P/Y6 Id.,
Hon. Burney Walker Opinion No. ‘WC742
District Attorney
~Waco, Texas Re: Whether a house trailer owned
by a non-resldent serviceman
can be consideredreal prop-
erty~ and thus subject to tax-
ation if said house trailer
is situated on a plot of’ land
owned by the nonqeaident
Dear Sir: serviceman.
By letter dated September 17, 1959, you state:
“I have briefed the following proposition and
wish td inquire ,iP your departinent is in agreement.
“The proposition is: ‘whether a house trailer
,owned. by a non-resident serviceman can be consid-
ered real property and thus subject to taxation if
said house trailer is situated on a plot of land
owned by the non-resident serviceman, who does not
intend that the house trailer should beoome a per-
mar&antpart of’ the land, but merely temporary
rerldenoe during his period of duty in the .State
.‘oi Texa6.l
“It seems that a house trailer is inherentiy
an item of personal property and thus the following
authorities would appear to be relevant:
“a. The Soldiers and Sailors’ Relief
Aot, 50 USA sic; should be U.S.C.A. 573,
state6 that c For the purposes of taxa J ion 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 ia not domiciled . . . personal
property shall not be deemed to be located or
present in or have a situ6 for taxation in
such state ‘. . . ’
“b. In Dameron v. Broadhead, 345 U.S.
322 (1953), the Supreme Court heId that the
u6e of the word ‘deemed’ in the above-cited
act did not create a rebuttable presumption
such a8 would permit taxation by the state
of the servicemen,~ 6 temporary residence In
some eases.
Hon. Burney Walker, Page 2 Opinion IJO. Ww~742
”c . In addition, the Courts of the State
of Texas, in construing Article 7146 of the
Texas Civil Code relating to the taxation of
real property, have stated that the teat for
.determining whether property connected with
realty is personal or real property depends
upon whether there has been a real or -con-
structive annexation of the property to real-
ty, whether It is fit for or adaptable to uses
or purposes of realty, and, preeminently,
whether the party making the annexation in-
tended the property to become a permanent annex-
ation to the freehold. Mar6 Co. v. State, 168
S.W. 26 510 (Tex.Clv.AppT)
“It would be greatly appreciated if we could
have your department’s opinion in this connection
at your earliest convenience.”
Your entire letter is reproduced since lt.contalns
the authorities pertinent to solution of the question posed.
We are in agreement with your conclusion. Under the facts
presented, the trailer remains personalty and is not taxable
In Texas.
In Attorney General’s Opinion No. W-691, a aiml-
tar queatlon was presented, The Opinion concluded that the
queetlon of whether property I.6 real or personal for the
purpose ‘of taxation Is determined by the general principles
of the law of fixtures. As you have correctly pointed out,
the criteria controlling the determination are as follows:
(1) There must be a real or constructive annexa-
tion of the’ Article In question to the realty.
(2) The Article must be adapted to uses or pur-
poses of the realty to which it is connected.
(3) The party making the annexation must intend
that the lmpr’ovement become a permanent accession to the
freehold.
Under the present fact eltuatlon, It ie apparent
that rkquisites (1) and (2) are met, but that the party,
making the annexation does not intend that the trailer
become a permanent accession to the freehold.. Consequently,
the house trailer remains personalty and, In view of the
portion of then Soldiers and Sailors Relief Act quoted above,
is not taxable within the State.
.. .-
Hon. Gurney Walker, Page 3 Opinion No. WW-742
SUMMARY
A house trailer owned by a non-resident
serviceman situated on a plot of land owned
by said serviceman cannot be considered
realty where the serviceman does not intend
that it becomes a permanent acaession to the
property, but,merely intends that it be a
temporary residence during hie period of,duty
in the State of Texas.
Very truly yours,
WILL WILSON
Attorney General
Jm.;bct
APPROVED:
OPINIONCOMMITTEE:
W. V. Qeppert, Chairman
C. Dean Davis
Narietta McQregor Payne
Robert 0. Soofield
APPROVED
FOR THE ATTORNEY
GENERAL
By: Leonard Passmore