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Volume 1 - Opinions of Counsel SBEA No. 33

Opinions of Counsel index

Real vs. personal property (farm installation) (steel bulk feed bin) - Real Property Tax Law, § 102:

A steel bulk feed bin with a ten-ton capacity, installed on a farm and bolted to a concrete base is taxable real property within the meaning of section 102, subd. 12, (b) of the Real Property Tax Law.

A question has been presented as to whether a steel bulk feed bin which has a capacity of ten tons and is bolted to a concrete pad is real property for taxation purposes. The bin is located near a barn and is used to store feed for cattle and other animals raised on the farm.

Whether or not this bin is taxable real property depends upon whether it is covered by the provision in section 102, subd. 12, (b) of the Real Property Tax Law making “[b]uildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto” real property.

In order for a “structure” (which a bin with a ten ton capacity must be) to be considered real property, the cases have held that the following conditions must be met:

1. It must be actually annexed to the realty or something appurtenant thereto;

2. It must have been adapted to the use or purpose to which that part of the realty with which it is connected is appropriated; and

3. The party installing it must have intended to make a permanent accession to the freehold.

People ex rel. National Starch Mfg. Co. v. Waldron, 26 App. Div. 527, 50 N.Y.S. 523; People ex rel. New York Edison Co. v. Wells, 135 App. Div. 644, 119 N.Y.S. 1057, aff’d, 198 N.Y. 607; People v. Longwell, 131 N.Y.S. 361; Herkimer County Light and Power Co. v. Johnson, 37 App. Div. 257, 55 N.Y.S. 924; People ex rel. Herzog v. Miller, 170 Misc. 1063, 11 N.Y.S.2d 572, aff’d 258 App. Div. 723; and Haas v. Board of Assessors, 109 N.Y.S.2d 527.

In the last two cited cases, a lunch wagon and summer cottages, which could be removed intact for use elsewhere, were found to be real property.

Similarly, we believe that the bin in question appears to meet all three conditions. It has been affixed to the realty with bolts; it is adapted to the use to which the realty is devoted, i.e., farming, and presumptively it is intended to remain there permanently, i.e., as long as that part of the realty has animals to be fed.

Therefore, it is our opinion that the steel bulk feed bin is taxable real property.

March 10, 1972