Volume 2 - Opinions of Counsel SBEA No. 93
Real property, definition of (swimming pool) - Real Property Tax Law, § 102:
Where an above-ground pool is of such construction and size, and the installation is of such nature as to indicate an intent to permanently affix the pool to the realty, the pool should be considered a permanent installation, and taxable as real property after installation.
Above-ground pools of any size which, due to the nature of their installation, and materials employed in their construction, are portable in nature, lack the degree of substance and permanency to be considered real property.
Our opinion has been requested on the question of whether sales of prefabricated above-ground swimming pools are sales of tangible personal property which, when installed, remain tangible personal property, or whether such sales of tangible personal property, when installed, constitute an addition to real property.
The type of pool in question consists of a vinyl liner resting on the ground, supported by an aluminum and wood frame, also resting on the ground, and a raised wood and metal deck. The vinyl liner rests on a bed of sand, and the pool area is sometimes leveled or graded to provide necessary depth for the pool. The size of the pool in question varies from 12 feet by 20 feet to 16 feet by 24 feet and is sold as a package, with or without installation. Assembling of the pool is accomplished in approximately a day and it is stated that the pool may be dismantled in several hours for storage. There are no permanent service connections.
We have previously expressed the opinion, with respect to several types of above-ground swimming pools, that where the above-ground pool is of such construction and size, and the installation is of such nature as to indicate an intent to permanently affix the pools to the realty, these pools should be considered permanent installations and taxable as real property after they are installed.
Apparently, a new type of above-ground swimming pool has been developed in recent years which is very large in size, but relatively inexpensive because of the short life-expectancy of the pools and the nature of installation. We concluded that these above-ground pools which consist primarily of plastic linings with braces, and possibly modest deck arrangements (even though of a very large size) are portable in nature and lack the degree of substance and permanency to be considered real property.
Where buyers in conditional sales contracts agree that the pools shall remain personal property, we are of the opinion that the agreements as to classification or ownership of property made in connection with financial agreements or otherwise are entitled to little or no weight for real property tax purposes (United States v. Tax Commission of City of New York, 22 App. Div.2d 290, 254 N.Y.S.2d 785; Interstate Lien Corp. v. Schmidt, 180 Misc. 910, 44 N.Y.S.2d 709).
The controversy about the classification of above-ground swimming pools appears to result from conflicting interpretations of the facts in regard to permanency of these types of pools. We are of the firm opinion that the character of the larger above-ground pools which involve installation of substantial decking and elaborate equipment (e.g., connections, filters, skimmers and pumps) indicates an intention to make a permanent addition to the realty. Size is not the only criterion. Some above ground pools, even though very large, do not fall into the classification of real property by virtue of the fact that the construction and installation of the pool does not indicate an intent to permanently attach the pool to the realty.
Nevertheless, these larger pools should be considered to be real property until the assessor is convinced that they are regularly and customarily moved upon the sale of the premises, or for winter storage or other reasons. This is a factual determination to be made by the local assessor.
January 23, 1973