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Volume 9 - Opinions of Counsel SBEA No. 96

Opinions of Counsel index

Real property, definition of (polyethylene greenhouse) - Executive Law, § 372; Real Property Tax Law, § 102(12)(b):

The exclusion of “plastic” greenhouses from the definition of “building” in the State Building Code Act is not determinative of their taxable status for purposes of the Real Property Tax Law. Such greenhouses are real property for real property tax purposes if they are fixtures.

Our opinion has been requested as to the taxable status of polyethylene covered greenhouses. It has been suggested that the exclusion of temporary greenhouses from the statutory definition of “building” in the State Building Code Act (Executive Law, § 372, as amended by L.1992, c.496) also removes polyethylene greenhouses from the definition of real property for purposes of the real property tax (RPTL, § 102(12)(b)). {*}

We have long expressed the opinion that so-called plastic greenhouses may constitute real property where an intent is shown to permanently affix such structures (2 Op.Counsel SBEA No. 24; 3 id. 48). More recently, the Appellate Division, Fourth Department, upheld the taxability of certain greenhouses, finding the common law definition of fixtures to be satisfied (Maines v. Board of Assessors, Town of Lafayette, 125 A.D.2d 951, 510 N.Y.S.2d 348 (4th Dept., 1986)).

The Appellate Division in Maines relied, in part, on the Court of Appeals’ 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 in Metromedia 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.

In Maines, the Appellate Division, Fourth Department, noted that, although the greenhouses’ posts were not embedded in the ground, they were of sufficient size and weight to be deemed annexed or appurtenant to the land. The Court noted that it would take six to eight hours to dismantle the structures, that they were applied to the owner’s commercial nursery business, and that, although they had been moved to various sites on the owner’s property, they had never been completely removed from the parcel.

The fact that a greenhouse may not be considered to be a building in the context of a building code or for some other taxing purpose is not determinative of its status for purposes of real property taxation. Indeed, some structures may be subject to inconsistent forms of taxation. For example, in Broadway Mobile Home Sales Corp. v. State Tax Commission, 67 A.D.2d 1029, 413 N.Y.S.2d 231 (3d Dept., 1979), the Appellate Division, Third Department, held that mobile homes are tangible personal property and, therefore, subject to the sales tax (Tax Law, § 1105(a)), despite the fact that they may also be liable to real property taxation (RPTL, § 102(12)(g)).

Therefore, the determination of the taxable status of a polyethylene greenhouse for purposes of real property taxation is to be made in accordance with the Real Property Tax Law as interpreted in decisions such as the Maines case. That is, such greenhouses are real property for real property tax purposes if they are fixtures.

November 13, 1992

NOTE:  See also RPTL, sec. 483-c.

{*}  In fact, chapter 496 is not the first context in which greenhouses have been excluded from the meaning of the term “building.” For example, in Thirup v. Commissioner of Internal Revenue, 508 F.2d 915 (9th Cir., 1974), the Federal Court of Appeals for the Ninth Circuit held that a greenhouse was not a “building” within the meaning of an exemption to the investment tax credit (26 USC § 48).