                          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
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