Opinion No. (1980)

REQUESTED BY: Fred A. Herrington, Tax Commissioner, Nebraska Department of Revenue, P.O. Box 94818, Lincoln, Nebraska, 68509. Is a self-propelled fertilizer floater-spreader a motor vehicle within the definition of motor vehicles in section60-301(1), R.R.S. 1943?

No. A self-propelled fertilizer floater-spreader is designed for and used primarily for tilling the soil and as such, is excluded from the definition of motor vehicles found in section 60-301(1) R.R.S. 1943.

Section 60-301(1) R.R.S. 1943 defines motor vehicles as follows:

"(1) Motor vehicles shall include all vehicles propelled by any power other than muscular power, except farm tractors and other implements of husbandry designed for and used primarily for tilling the soil and harvesting crops, vehicles which run only on rails or tracks, off-road designed vehicles, including but not limited to golf carts, go-carts, riding lawnmowers, garden tractors, all terrain vehicles, and snowmobiles, and road and general purpose construction and maintenance machinery not designed or used primarily for the transportation of persons or property, including, but not limited to, minibikes which shall mean two-wheel motor vehicles which have a total wheel and tire diameter of less than fourteen inches, or an engine rated capacity of less than forty-five cubic centimeters displacement or a seat height less than twenty-five inches from the ground, ditch-digging apparatus, well-boring apparatus, asphalt spreaders, bucket loaders, leveling graders, earthmoving carryalls, power shovels, earthmoving equipment, crawler tractors, and self-propelled invalid chairs; . . ."

The question posed is whether or not the fertilizer floater-spreader vehicle is an implement of husbandry designed for and used primarily for tilling the soil. Earlier opinions of the Attorney General have addressed similar or related vehicles, (No. 39, March 1, 1979, relating to fertilizer trailers, and No. 97, May 17, 1957, No. 234, June 23, 1976, No. 224, March 29, 1978, relating to trucks with fertilizer equipment mounted on the chassis), but none of the opinions have addressed the status of a self-propelled floater-spreader as a motor vehicle.

We have been provided with a detailed description of the vehicles as well as several pictures of typical floater-spreaders known as ``Big A's' or ``Super T's'. The vehicle is self-propelled, either 3 or 4 wheeled, using large, 44 x 66 inch flotation tires. It may be up to 24 feet in length, ten feet in width, and up to 10' 6" in height. We feel that it is apparent from the appearance of the vehicle that it is designed for the application of fertilizer. We also feel that the primary use of the vehicle coincides with its design. Any other conclusion would ignore the economics of using such a vehicle for other purposes. We note also, that the vehicle does transport the fertilizer that it spreads, however, we feel that the transportation of fertilizer to the job site must be considered ancillary to the application of the fertilizer, the primary use of the vehicle. Therefore, it is our opinion that the fertilizer floater-spreader is not a motor vehicle as defined by section60-301.

Questions have been raised regarding the taxation of the fertilizer floater-spreader. Section 77-205.25, R.R.S. 1943 provides an exemption from taxation for agricultural income producing machinery and equipment except motorvehicles. Section 77-1241.01, R.R.S. 1943, provides for the taxation of motor vehicles not registered for operation on the highway. The only definition of motor vehicle found in Chapter 77 of the Nebraska statutes, 77-1238(1), R.R.S. 1943, provides:

"(1) Motor vehicle shall mean every motor vehicle, trailer, cabin trailer and mobile home, as defined in sections 60-1601 and 60-1601.01, subject to the payment of registration fees, permit fees, or ad valorem taxes under the laws of this state; . . ."

Since the vehicle in question is not a trailer, cabin trailer or mobile home, the definition set out above provides no help in determining what is meant by the term motor vehicle in 77-205.25 or 77-1241.01. Because no particular definition of ``motor vehicle' exits for the purpose of taxation, we have adopted the definition found in section60-301(1), R.R.S. 1943. In opinion No. 224, dated March 29, 1978 we stated:

"We therefore conclude that any vehicle which fits the description of motor vehicle under section 60-301 is a motor vehicle as contemplated by section 77-205.25. . ."

We also are of the opinion that any vehicle excluded under the definition of section 60-301 is not a motor vehicle as contemplated by section 77-205.25. We therefore conclude that a self-propelled fertilizer floater-spreader is not a motor vehicle under 60-301 and is entitled to the exemptions from taxation provided for in 77-205.25.