March 4, 1981

Mr. Douglas J. Luebke 
Douglas County State's Attorney 
Armour, South Dakota 57313

Official Opinion No. 81-8

Assessment of Agricultural Buildings and Structures

Dear Mr. Luebke:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Prior to the elimination of the personal property tax certain portable farm structures, cattle shelters, cattle feeders, grain bins not on a foundation, etc., were classified as personal property. 

Subsequent to the above change of law the Director of Equalization in Douglas County has assessed the above portable structures as real property on the theory that they are buildings and structures within the definition of SDCL 10-4-13.1 and therefore includable in the valuation of the real property before the ten thousand dollar deduction is subtracted.

Based on the above facts you have asked the following question:

QUESTION: 

Is the value of a portable agricultural structure includable in the value of all agricultural buildings and structures for the purpose of determining the value, less the ten thousand dollars, to be added to the value of the land; or are portable structures personal property and excluded from taxation and valuation?

Real property is defined in SDCL 10-4-2 and includes the land itself and all buildings, structures and certain mobile homes and other improvements such as air conditioning, ventilation, etc. Personal property as defined in SDCL 10-4-6 includes all goods, chattels, moneys and credits and effects.  Portable farm structures are, in my opinion, neither buildings nor structures in the contemplation of either SDCL 10-4-2 or 10-4-13.1, nor are they fixtures under SDCL 43-33-1 which provides: 

A thing is deemed to be affixed to the land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.

It would not appear from the type of portable items you describe that there is any intention on the part of the individuals to make the articles permanent accessions to the land.  Killian v. Hubbard, 9 N.W.2d 700 (S.D. 1943).  

The property you have referred to in your question is in my opinion personal in nature and therefore exempt from tax and not subject to the ten thousand dollar exemption of SDCL 10-4-13.1.

Respectfully submitted,

Mark V. Meierhenry
Attorney General