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Volume 10 - Opinions of Counsel SBRPS No. 108

Opinions of Counsel index

Real property, definition of (radio transmission towers and support buildings); Correction of errors (unlawful entry) (personal property) - Real Property Tax Law, §§ 102(12)(i), 300, 550:

Radio station towers and support buildings are taxable real property if they simply support telecommunications equipment, but the towers are personal property (not subject to real property taxation) if they are directly involved in the transmission of the radio signals. It is an unlawful entry for an assessor to assess personal property.

We have received an inquiry concerning the assessment of a radio transmission tower and accessory buildings. The first question is whether the support buildings associated with the tower are taxable or exempt from taxation. Next, assuming that the radio tower is not taxable, the question is if the correction of errors procedure (Real Property Tax Law, Art. 5, title 3) may be used to correct prior assessment rolls which included the tower’s value in the parcel’s assessment.

As a general rule, all real property is taxable unless specifically exempted by law, but personal property is not subject to real property taxation (RPTL, § 300). Real property includes land and things affixed to the land, including “[b]uildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto . . .” (RPTL, § 102(12)(b)).

Special provisions within the definition section of the RPTL apply to telecommunications property. Section 102(12)(d) describes which telephone company-owned property is subject to taxation, {1} while section 102(12)(i) provides that real property includes:

(i) When owned by other than a telephone company . . . all lines, wires, poles, supports and inclosures for electrical conductors upon, above and underground used in connection with the transmission or switching of electromagnetic voice . . . signals between different entities separated by air . . . except that such property shall not include . . . (D) such property used in the transmission of news or entertainment radio . . . signals for immediate, delayed or ultimate exhibition to the public, whether or not a fee is charged therefor (emphasis added).

We discussed the provisions of section 102(12)(d) and (i) in 9 Op.Counsel SBEA No. 16 and concluded:

[Certain] telecommunications property which was in place in 1986 is to be phased out as taxable real property [by December 31, 1991]. Such property which was installed after 1986 is not included in the taxable base amount being phased out, its taxable assessed value already being zero.

In that opinion, we also stated, “The ultimate purpose of chapter 416 [of the Laws of 1987] was to eliminate the tax on . . . telecommunications equipment [which] does not satisfy the common law fixtures test.” In addition, property which may have satisfied the fixtures test, but is excluded from the definition of real property within paragraph (d) or (i) of subdivision 12 of section 102, such as “property used in the transmission of news or entertainment radio,” is no longer real property for real property tax purposes; it is personal property.

The towers themselves are taxable if they are used merely as “supports” for the transmission equipment pursuant to section 102(12)(i). The electronic equipment used in the transmission of radio signals is excluded from the definition of real property in that paragraph and thus is not taxable.

It is our understanding, however, that some radio station towers are not merely structures to which equipment is affixed; rather, they are directly involved in the transmission of the radio signals. These towers are thus also specifically excluded from the definition of realty.

Generally then, equipment used in the transmission or switching of electromagnetic voice signals, which is not owned by a telephone company as defined in 102(12)(d), should be analyzed pursuant to the provisions of 102(12)(i). A literal reading of the statute is the best way to classify broadcasting towers. That is, if the tower is not “actually used in the transmission of radio signals,” but is merely a support for equipment, it should be classified as real property. However, if the tower is actually used in transmitting the signal, it should be treated as personal property. The “support buildings,” not being used in the direct transmission of the radio signal, would be taxable if they satisfy the definition of real property in section 102(12)(b) of the RPTL.

If a non-taxable radio tower is in fact included in the assessment of real property, that constitutes an unlawful entry per section 550(7)(c) of the RPTL: “an entry of assessed valuation on an assessment roll or on a tax roll, or both, which has been made by a person or body without the authority to make such entry.” That is, an assessor has no authority to assess personal property (RPTL, §§ 102(3), 300; Sunnycrest Apartments, Inc. v. Srogi, 100 A.D.2d 730, 473 N.Y.S.2d 660 (4th Dept. 1984)). {2}  A property owner may seek a refund of taxes paid where an unlawful entry has been made for up to three years following the annexation of the warrant to collect such taxes (RPTL, § 556(1)(a), (2)).

June 9, 2000

{1}  The property in issue is not owned by a telephone company.

{2}  We distinguish an “inventory” error such as the description of an improvement (9 Op.Counsel SBEA No. 23). Such issue is addressable only through the assessment review processes of Articles 5 (title 1-A) and 7 of the RPTL.