Judges: WILLIAM J. GUSTE, JR.
Filed Date: 12/7/1989
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Walker:
Your recent inquiry has been referred to me for attention. Your questions, as I understand them, are as follows:
Whether it is possible to separately assess land and a building owned by the City of New Orleans from the assessment of the leasehold improvements therein; and
Whether the property owned by the City, which will be leased for public purpose of improvement of the downtown area as well as the restoration of this building to its original historic elevations, should be exempt from ad valorem real estate taxation despite the rental received by the City?
The D. H. Holmes Canal Street property acquired by Dillard's was then donated by the latter for the restoration, improvement and development of the Central Business District to the Canal Street Development Corporation which was created by the City pursuant to the public benefit law. R.S.
We have no doubt that property owned and used by the City for a public purpose is not subject to ad valorem taxation. Art.
Therefore, in answer to your first question, we can see no reason why the separate assessments sought by the City and the leasehold interest should not be done in order to properly exempt that portion subject to exemption and taxation of that which should be taxed.
As concluded by this office in Attorney General Opn. No. 76-114, our office does not have the authority to make a decision as to whether any particular taxpayer is exempt, as that decision is based upon a factual determination, but we can furnish our opinion as to the applicable law which may be used in making individual decisions.
As observed above, Article 7, Section 21 of the Constitution of 1974 exempts from ad valorem taxation "Public lands, other public property used for public purposes." Therefore, the question is not simply whether the title is in a public entity, but the use of the land must also be considered. Moreover, the fact that public property is leased to private business does not preclude it from being for a public purpose which would likewise be exempt.
In Charleston County Aviation v. Wasson,
Similar reasoning is seen in Tri-County PublicAirport Authority v. Board of County Commissioners,
Likewise, in Town of Harrison v. Co. of Westchester,
In order to assist in a determination of whether property qualifies for exemption the actual activities of the lessor, the purpose of the corporation's charter and use of the particular portion of the property under consideration should be examined and how this relates to a public purpose.
It must be concluded that property cannot be exempt when it serves no governmental function or is not reasonably incidental to the governmental function. The fact that the property will produce revenues which go toward financing governmental functions will not be sufficient to bring property within the purview of the exemption, nor would such ancillary public benefits as set forth in the donation in question of "increased employment opportunities, increased tourism, aesthetic improvements to the area", be such incidental governmental functions to bring the property within the constitutional tax exemption. Moreover, as reasoned in the Schulingkamp case, supra, "To tax private lessees of private lands and not to tax private lessees of public lands would be unjust and inequitable."
We hope this guideline will be of assistance in answer to your second question as to whether property owned by the City and leased for public purpose of improvement of the downtown area should be exempt from ad valorem taxation.
If we can be of further assistance, please do not hesitate to contact us.
Yours very truly,
WILLIAM J. GUSTE. JR. Attorney General
__________________________ BARBARA B. RUTLEDGE Assistant Attorney General
BBR:atb
cc: Moise S. Steeg, Jr., Esq. Steeg O'Connor 201 St. Charles Ave. Suite 3201 New Orleans, La. 70170