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Volume 9 - Opinions of Counsel SBEA No. 75

Opinions of Counsel index

Real property, definition of (swimming pools, above ground) - Real Property Tax Law, § 102(12)(b):

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.

In 2 Op.Counsel SBEA No. 93, we concluded that the taxable status of an above-ground pool must be determined by the assessor on a case-by-case basis, with consideration given to the pool’s “degree of substance” and the intent of permanence. We have been asked whether our opinion has changed, given the decision of the court in Roberts v. Board of Assessment Review, 84 Misc.2d 1017, 375 N.Y.S.2d 988 (S.Ct., Orange Co. 1975).

In the above-cited Opinion, the State Supreme Court in Orange County found a particular type of above-ground pool to be personal property. The decision does not establish precedent which has binding effect Statewide and, in fact, has limited precedential value given more recent case law.

Subsequent to the rendering of our Opinion and the Roberts decision, the Court of Appeals handed down the landmark decision in Metromedia, Inc. v. Tax Commission, 60 N.Y.2d 85, 455 N.E.2d 1252, 468 N.Y.S.2d 457 (1983). The issue before the Court was whether advertising signs which were bolted to frames on elevated railways were taxable real property. In reaching its decision, the Court recited the common law test used for determining whether a particular item is a “fixture”; i.e., the item must

1) be actually annexed to the real property or something appurtenant thereto;

2) be applied to the use or purpose of the real property; and

3) be intended as a permanent accession thereto.

The Court found that the advertising signs met all three criteria and, accordingly, were taxable. Significantly, in its analysis of the third item, the Court relied on the fact that few, if any, of the signs had ever been removed. Thus, the ease of removal was of considerably less significance than the fact that no such removal had ever been made (see also, South Seas Yacht Club v. Board of Assessors, 136 A.D.2d 537, 523 N.Y.S.2d 157 (2d Dept. 1988)).

Applying this precedent to the analysis of the taxable status of above-ground pools, it seems clear that the intent of permanence is the critical issue and, in fact, the last paragraph of 2 Op.Counsel SBEA No. 93 concludes that:

. . . 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. . . .

Given the foregoing, we see no reason to depart from this conclusion.

June 19, 1991