February 4, 1977

Mr. Gene Paul Kean 
Minnehaha County State's Attorney 
Minnehaha County Courthouse 
Sioux Falls, South Dakota 57102

Official Opinion No. 77-19

Whether certain homes owed by, but not inhabited by, certain handicapped individuals are tax exempt

Dear Mr. Kean:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

John Doe is a paraplegic veteran.  His dwelling is located in Sioux Falls, Minnehaha County, South Dakota.  His wife is now deceased.  Mr. Doe has two children, one of whom is still a minor. At the present time, Mr. Doe is in the Veteran's Administration Hospital in Sioux Falls.  He suffers from multiple sclerosis and the prospects of his returning to his dwelling are limited.  The dwelling is now exempt from taxes under the provisions of SDCL 10-4-24.10 because of his paragraph condition. 
    
Recently Mr. Doe's sister has moved into the house to care for the minor son.  The son still lives in the house.  The guardian of Mr. Doe's estate as well as the sister all have intentions of keeping the minor son in the dwelling.  The dwelling is owned by Mr. Doe.

Based on the above facts, you ask:

QUESTION: 

Does Mr. Doe's dwelling still qualify as tax exempt under the provisions of SDCL 10-4-24.10?

SDCL 10-4-24.9 provides:
    
All dwellings or parts of multiple family dwellings which are specifically designed for use by paraplegics as wheelchair homes are hereby specifically classified for the purposes of taxation.  For purposes of this section and §  10-4-24.10, the term “dwellings” shall include real estate in an amount not to exceed one acre upon which the building is situated or so much of the surrounding real estate as is necessarily incident to the use of the premises as a dwelling.

SDCL 10-4-24.10 provides:
    
To the extent that a dwelling or part thereof designed as provided in § 10-4-24.9 is owned and occupied for the full calendar year in which a tax is to be levied by a paraplegic veteran, a veteran with the loss or loss of use of both lower extremities, or the unremarried widow or widower of such a veteran, the same shall be exempt from taxation.

In my opinion, Mr. Doe's dwelling does qualify for the tax-exempt status granted by SDCL 10-4-24.10.  Mr. Doe does not, in my judgment, cease to “occupy” his home by virtue of the fact he is in the Veteran's Administration Hospital in Sioux Falls.  Further, I do not believe the fact that his prospects of returning to his dwelling are low should have any bearing on the matter.  To me it is inconceivable that the Legislature intended that a paraplegic veteran lose this tax-exempt status when it becomes necessary for him to be hospitalized.

The answer to your question, therefore, is yes.

Respectfully submitted,

William J. Janklow
Attorney General

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