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Volume 6 - Opinions of Counsel SBEA No. 98

Opinions of Counsel index

Real property, definition of (plastic air bubble) - Real Property Tax Law, § 102(12)(b):

A plastic and steel air bubble, installed over commercial tennis courts, which is in place part of the year and removed for the balance is not real property. Accessory equipment necessary to the operation of the bubble is real property.

We have been asked whether a plastic and steel air bubble installed over a commercial tennis court, and accessory equipment, is real property. The air bubble consists of two layers which will be in place for the fall. winter and, part of the spring seasons (between September 15 and May 15, annually). In addition, there is a motor, generator and an air unit which is permanently in place in a separate location.

“Real property” is defined in subdivision 12 of section 102 of the Real Property Tax Law, and included within that definition are “buildings and other articles and structures . . . erected upon . . . or above the land, or affixed thereto” (Real Property Tax Law, § 102(12)(b)).

Whether a particular item constitutes a building or article “affixed” to the land is a question of fact determinable only on a case-by-case basis. In 1979, a Supreme Court justice in Manhattan concluded that an air bubble placed over a tennis court was personal property. In Shereff-Schopick Realty Co. v. Tax Commissioners, 181 N.Y.L.J., No. 106, p. 12, c.5 (6-1-79) Justice Kasoff concluded that the air structure did not qualify as real property under paragraph (b) of subdivision 12 of section 102.

Central to the Court’s conclusion was the following:

Petitioner has established that the air structure is not permanently affixed to the real estate, may be removed by the tenant at any time during the term of the lease, must be removed by the tenant at the end of the lease and is readily saleable. Both the building department file and the certificate of occupancy issued by the building department covering the air structure clearly show that it is a temporary structure which by agreement with the city must be removed each year and for which a new certificate of occupancy must be obtained for each year.

Thus, the Court stressed the ready movability of the covering and the fact that it was installed for the purposes of the business carried on on the premises by the tenant. We believe, however, that the latter factor is less important than the former. That is, if it can be proven that the covering is in place for only a portion of the year and is regularly removed and reinstalled in place, the assessor may reasonably conclude that a permanent addition to the real property was not intended (see, e.g., 3 Op.Counsel SBEA No. 48).

This may seem to be a close question because the covering in this case will be in place for eight of the twelve months of the year. Nonetheless, because of the recurring nature of the removal and installation, we believe that it is reasonable to assume that this air bubble should not be considered real property.

The question of the classification of the motor, generator and accessory air unit and equipment must be resolved on a different basis. The first distinction is that this equipment is permanently in place in a separate structure and therefore, we assume, it will not be readily and regularly removed. If this is the case, we may also conclude that the motor and accessory equipment would not qualify for the exception for “movable machinery or equipment” of a corporation taxable under Article 9-A of the Tax Law (the franchise tax) provided by paragraph (f) of subdivision 12 of section 102. Therefore, we believe that this equipment would constitute “articles erected upon or affixed to the land” and should be considered real property under paragraph (b) of subdivision 12 of section 102.

February 27, 1980