Volume 5 - Opinions of Counsel SBEA No. 26
Assessments, generally (serviceman’s mobile home) - Military Law, § 314; Real Property Tax Law, § 102(12)(g):
A mobile home, which is taxable real property pursuant to section 102(12)(g) of the Real Property Tax Law, remains subject to real property taxation despite ownership by a serviceman entitled to the protection of the Soldiers’ and Sailors’ Civil Relief Act. In the event the taxes on the mobile home are not paid, the remedies available to the taxing jurisdiction may be limited or delayed pursuant to the provisions of such act.
Our opinion has been requested concerning the legality of assessing the mobile home of an Air Force sergeant. The question is whether the mobile home should be classified as real property in view of the provisions of the Soldiers’ and Sailors’ Civil Relief Act (50 U.S.C. App. § 501 et seq.).
Pursuant to section 574 of such act, the taxable domicile of servicemen is not changed by military assignments. This section, with certain exceptions, exempts the serviceman’s income and personalty from taxation by the state in which he is stationed.
In reliance on this section, a Federal District Court held in United States v. Chester County Board of Assessment and Revision of Taxes, 281 F.Supp. 1001 (E.D.Pa., 1968), that a trailer, which was not permanently attached to land, although it was connected to water, sewerage, and electrical facilities, was personal property belonging to a serviceman and exempt from taxation. In our opinion, this decision is not controlling.
Whether a trailer or mobile home is real or personal property for purposes of real property taxation in New York is governed by paragraph (g) of subdivision (12) of section 102 of the Real Property Tax Law.
Subdivision 12 of section 102 of the Real Property Tax Law provides in relevant part as follows:
12. “Real property”, “property”, or “land” mean and include:
g) 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 sixty days or (2) unoccupied and for sale. The value of any trailer or mobile home shall be included in the assessment of the land on which it is located; provided, however, that if either the trailer or mobile home or the land on which it is located is entitled to any exemption pursuant to article four of this chapter, such trailer or mobile home shall be separately assessed in the name of the owner thereof;
The constitutionality of this statute was upheld in New York Mobile Homes Association v. Steckel, 9 N.Y.2d 533, 175 N.E.2d 151, 215 N.Y.S.2d 487, motion denied, 10 N.Y.2d 814, 178 N.E.2d 231, 221 N.Y.S.2d 517, appeal dismissed, 369 U.S. 150, 82 S.Ct. 685, 7 L.Ed.2d 782.
Section 304 of the Real Property Tax Law directs that “[a]ll assessments shall be against the real property itself. . . .” No reference to ownership is made in the statute. Thus, a mobile home, which constitutes real property pursuant to section 102 (supra), remains taxable real property despite the fact that it is owned by a serviceman.
Accordingly, 50 U.S.C. App. § 574 is not relevant because it is concerned with the taxation of personal property. Rather, it is another section of the Soldiers’ and Sailors’ Civil Relief Act which is applicable (50 U.S.C. App. § 560). The corresponding section in New York law is section 314 of the Military Law. Subdivision 2 of section 314 expressly provides that the payment of real property taxes falling due, prior to or during military service, upon real property which is owned and occupied for dwelling purposes by the person in the military service, or occupied by his dependents or employees prior to or during his military service, cannot be enforced by sale or other proceeding, except by permission of the court upon application of the officer whose duty it is to enforce the tax. In the event of such an application, the court may grant a stay of the proceeding for a period of six months until after the termination of military service, unless, in the opinion of the court, the ability “of the person in military service” to pay such taxes is not materially affected by reason of such service. Thus, neither section 506 of the Federal law nor section 314 of the State law exempts soldiers from real property taxation, but rather only delays and limits the remedies available to the taxing jurisdiction in the event such taxes are not paid.
Accordingly, it is our opinion that the sergeant’s mobile home is assessable as real property and its value should be included in the value of the land on which such mobile home stands, since from the facts submitted, it does not appear that either he or the landowner is entitled to a tax exemption.
June 16, 1975