November 9, 1988

Mr. Craig Kennedy 
Yankton County States Attorney 
P.O. Box 58 
Yankton, South Dakota 57078

Official Opinion No. 88-53

Taxation of paraplegic dwelling owned by a tenant in common

Dear Mr. Kennedy:

You have requested an official opinion on the following factual situation:

FACTS: 

A dwelling house owned in Yankton County, South Dakota, qualifies, pursuant to SDCL §  l0-4-24.9 as a paraplegic dwelling. The house was owned by a married couple. The husband, who is paraplegic, is residing at the Sister James Nursing Home in Yankton, South Dakota. It is unclear whether he will be able to live other than in the nursing home in the future. He and his wife divorce, following his move to the nursing home. In their settlement agreement in the divorce they agreed that this property, together with other property, would be owned by them as tenants in common. Each own an undivided one-half interest in the dwelling. 

The wife has remarried and occupies the home with her new husband for five months of the year. During the balance of the year it is under the former husband's supervision and control. I have been advised that although he has not physically occupied the premises, it is available to the former husband on a year-round basis.

Concerning this you have asked whether the undivided one-half interest of the former husband in this residence still qualifies for the tax relief measures provided by the statute.

SDCL l0-4-24.11 provides: 

To the extent that a dwelling or part thereof is owned and occupied by a paraplegic or an individual with the loss or loss of use of both lower  extremities, the individual's tax liability shall be reduced as provided in § §  l0-4-24.12 and l0-4-24.13 on that portion of the dwelling, provided the dwelling was owned and occupied for the full calendar year prior to the year in which the taxes are due and receivable. The term "household income" as used in § §  10-4-24.12 and 10-4-24.13 is the same as defined in subdivision (4) of §  10-18A-1.

In Official Opinion 77-19, my predecessor held that the home of a paraplegic veteran who was hospitalized in the Veterans Administration Hospital, but whose guardian retained the property and where the minor son continued to live, would not lose its tax exempt status during the period of hospitalization. Official Opinion 86-21 had to do with a situation where a widow of a paraplegic veteran later remarried and it was determined that the property at that time became taxable.

In the case you present, it is my opinion that the one-half interest in the dwelling owned by the now remarried former spouse is fully taxable.

The facts, as given, do not disclose exactly when the husband moved into the nursing home. If he resided in the dwelling for the entire preceding year there should be no question that his one-half interest is exempt.

If, in subsequent years, the husband lives in the nursing home and does not use the dwelling for any other purpose, such as rented or other non-personal use, and if the income conditions set forth in §  l0-4-24.12 for a single  family dwelling are met, his one-half interest in the dwelling may continue to be tax exempt to the extent provided in that section.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General