TOWN OF SHIRLEY vs. ROLAND E. BOURQUE and JUTTA BOURQUE.

This case concerns a petition brought by the Town of Shirley (the "Town") against Roland E. Bourque of Manchester, New Hampshire and Jutta Bourque of said Shirley, husband and wife (the "taxpayers"), to foreclose the latters' equity of redemption pursuant to G. L. c. 60, §76, as amended. The sole issue in the case is whether the taxpayers' home was properly assessed by the Town as real estate. After numerous court appearances and conferences, a trial was held on March 8, 1978 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The court also conferred with counsel subsequent to the trial in order to effectuate a settlement of the dispute, but no agreement was reached between the parties.

On all the evidence I find and rule as follows:

1. In 1964-65, when the male taxpayer was a member of the United States military stationed at Fort Devens, he purchased the trailer in question to facilitate a move from one governmental post to another, should he be transferred. By deed dated May 25, 1965 and recorded with Middlesex South District Deeds, [Note 1] Book 10828, Page 143, the taxpayers acquired title to a parcel of vacant land on Patterson Road in said Shirley, containing about three-quarters of an acre. The trailer was moved to this site in the fall of 1966 and has remained there since. On three occasions it has either been moved to the street or to another location on the lot so that fill might be deposited on the land. Since 1966 it has not, however, been attached to a motor vehicle and moved along the highway, the function commonly associated with a trailer.

2. The trailer is registered pursuant to Chapter 90 of the General Laws, but no excise tax has been paid thereon in accordance with the provisions of Chapter 60A.

3. The interior of the trailer consists of a combination living room-kitchen, two bedrooms and a bath. The trailer is on wheels, has an axle and is mounted on ten or twelve cinder blocks. Next to the trailer, but not attached thereto, are wooden steps and a small deck constructed about one year ago. The steps replace prior portable metal steps. A short distance away is a picket fence put up four or five years ago which rests on four-by-four wooden poles that can be removed in five or ten minutes, and a storage shed erected with nuts and bolts set on plywood. The shed is empty except for an oil drum. Prior to October, 1976 and except for the years 1967 to 1970, the trailer was supplied with electricity, telephone service, plumbing, bottled gas and water. A pipe connects the trailer with the oil tank, the electrical connection consists of a transformer plugged into the trailer, and water is pumped to the trailer from a well. In 1965, the respondents, pursuant to a permit issued by the department of public health, installed a septic system with a 900 gallon tank and a 600 square foot leach bed placed in a substantial amount of fill. The system is said to be fairly sophis- ticated with a useful life of approximately twenty years. The tax- payers claim it was installed in anticipation of the construction of a permanent home on the site. All attachments can be removed in about twenty minutes.

4. The female taxpayer lived in the trailer during 1966 and 1967 when her husband was in Vietnam. From 1967 to 1970 he was stationed in Europe, and she joined him there. The trailer was rented during a portion of this time, but the venture was unsuccessful and no rent was paid. On his return to the United States in 1970 Mr. Bourque retired from the service and moved to Manchester, New Hampshire. Mrs. Bourque returned to the United States shortly after her husband and has made the trailer her residence. She has lived there continuously except for an extended visit to Arizona. Even during 1977 after she had the services disconnected (in the fall of 1976) she lived there; at the time of the trial after a series of misadventures, days are spent at the trailer and nights at Fort Devens.

5. Acting on advice of the Judge Advocate's office that the Town could not tax the trailer as realty the taxpayers initially paid no bills. Consequently, on July 9, 1976 the premises were taken by the Town of Shirley for nonpayment of the 1967-68 real estate taxes by instrument recorded in Book 11598, Page 60. In 1972, the 1967, 1968 and 1972 taxes were paid by the respondents but not interest due thereon. A petition to foreclose the taxpayers' equity of redemption was filed with this Court on July 9, 1976 and the matter heard on March 8, 1978. The Town presently claims to be owed $3,334.38 in taxes and $1,472.32 in interest (exclusive of the payment due on May 1, 1978 and thereafter) plus the expenses of foreclosure.

6. The taxpayers claim that they are ready, willing and able to pay the taxes but dispute the inclusion of any assessment for the trailer in the computations thereof.

After the trial, it became apparent to this Court that, for tax years 1966 through 1970, the trailer might be immune from taxation under G. L. c. 59, §5, cl. 36, which exempts "mobile homes deemed, by section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, not to be located or present in or to have a situs in such city or town for the purposes of taxation in respect to personal property." The federal act, in turn, forbids a state or its subdivision from taxing the personal property of a serviceman, who is neither a resident nor a domiciliary thereof, if the incidence of the tax is predicated upon the situs of such property in the tax jurisdiction. [Note 2] This exemption, which was enacted to protect servicemen from the risk of double taxation, since the ownership of personal property may give rise to tax obligations in both the state of domicile and the state in which the property is situated, applies whether or not the state of domicile has in fact imposed a tax. United States v. County of Champaign, Illinois, 525 F. 2d 374, 377 (7th Cir. 1975); United States v. Illinois, 387 F. Supp. 638, 641 (E. D. Ill. 1975).

For the tax years 1966 through 1970, Mr. Bourque was neither a resident nor domiciliary of Massachusetts but was present in this State solely by reason of compliance with military orders, and I so find. The issue of whether the trailer is personal property within the scope of Section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, is one of federal, not state, law. And, according to the prevailing cases, "mobile homes which are not permanently affixed to realty are determined to be tangible personal property within the meaning of 50 U.S.C. App. §574 and are therefore exempt from local taxation." United States v. Shelby County, Tennessee, 385 F. Supp. 1187, 1189 (W. D. Tenn. 1974); accord, California v. Buzard, 382 U.S. 386, 389-92 (1965); United States v. Chester County Board of Assessmeht & Revision of Taxes, 281 F. Supp. 1001, 1004 (E. D. Pa. 1968).

In United States v. Shelby County, Tennessee, supra, the court held that the mobile homes were personal property since they had never been permanently affixed to the land but were tied to and connected with utility facilities which could be removed without difficulty or damage to the real estate. Similarly, the respondents' trailer is mounted on cinder blocks with utility connections that can be removed in about twenty minutes. Therefore, I find, and rule, that as a matter of federal law the trailer here in question is not permanently affixed to the real estate, is personal property within Section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, and is exempt from local taxation under both the federal act and G. L. c. 59, §5, cl. 36. This being the case, the assessments and taking by the Town of Shirley are void and invalid and the foreclosure proceedings instituted in this Court pursuant to G. L. c. 60, §65 must be and hereby are ordered dismissed. Cf. Town of Norwood v. Norwood Civic Association, 340 Mass. 518 (1960). [Note 3]

This is not to say, however, that the Town may not reassess the land for tax years 1967 through 1970. See G. L. c. 59, §77. And, furthermore, this ruling does not affect the validity of the assessments made after the male respondent's discharge from the armed forces in 1970, since classification of the trailer for the tax years commencing with January 1, 1971 is governed by state law. But to leave this question unsettled now after the tortuous history of this case would undoubtedly lead to more protracted litigation between the parties and, therefore, on the evidence already introduced we offer the following as guidance.

G. L. c. 59, §3 provides in part as follows:

Real estate for the purpose of taxation shall include all land within the commonwealth and all buildings and other things erected thereon or affixed thereto.

It includes as an appropriate subject for local taxation not only "buildings" but also "other things erected thereon or affixed thereto." In Franklin v. Metcalfe, 307 Mass. 386 (1940), at 389 the Supreme Judicial Court stated that the lunch cart there in question "properly was assessed as part of the real estate involved. Land and the buildings 'erected thereon or affixed thereto' are properly taxed as a unit and this rule is not affected by private agreements or by the degree of physical attachment to the land." It is difficult to distinguish in any material respect the lunch cart categorized by the Court as realty in Metcalfe and the taxpayers' trailer. Both were on wheels, neither was firmly attached to the land, and both were easily moveable. A brick veneer wall had been constructed on three sides of the lunch cart, but so far as appears, this did not impede the removal process.

In City of Chelsea v. Richard T. Green Co., 319 Mass. 162 (1946), the Court considered the correctness of a Land Court decision that the cradle and motivating machinery of a marine railway were real estate. In reviewing prior holdings on the question as to what was real estate for the purpose of taxation it was said, at page 165:

The following have been held to be part of the real estate for purposes of taxation: wooden buildings resting upon timbers simply lying upon the top of the ground and so built in order that they might be removed (Milligan v. Drury, 130 Mass. 428 ); a bank vault installed by a tenant, not forming part of the structure of the building but incapable of removal without damage to the building (Callahan v. Broadway National Bank, 286 Mass. 473 ); transplanted trees cultivated for purposes of sale (Paine v. Assessors of Weston, 297 Mass. 173 ); and a lunch cart standing on its own wheels on four cement "abutments" which went two feet into the ground, with a brick veneer wall around three sides of the cart (Franklin v. Metcalfe, 307 Mass. 386 ). In respect to the cradle the case is plainly distinguishable from Hall v. Carney, 140 Mass. 131 , where it was held that a railroad car could be attached as personal property under statutes providing for such an attachment.

It is true that G. L. c. 59, §5, cl. 35 exempts from taxation "[M]otor vehicles and trailers subject to taxation or exempted from taxation under the provisions of chapter sixty A," but the General Court must have intended this exemption to apply only where the trailer was in fact used in conjunction with a motor vehicle on the highways. In the present case the trailer has remained for nearly twelve years on the taxpayers' land without ever having been used for the purpose for which it was manufactured. Despite its regis- tration under Chapter 90A it had lost its character as a trailer entitled to a Clause Thirty-fifth exemption until it is used for its original function.

Tnis is akin to the result reached in Ellis v. Board of Assessors of Acushnet, 358 Mass. 473 (1970), where the Court considered the exemption afforded by Clause Thirty-sixth to mobile homes located in mobile home parks and held that the mobile home of the appellants was so similar to a conventional residence that to exclude it from taxation would give rise to constitutional problems. While the mobile home involved in Ellis was more elaborate than that of the present taxpayers, the principle is the same. The trailer has served for many years as the residence of Mrs. Bourque, it has lost its character as a motor vehicle and become a permanent addition to the land, and it would be constitutionally suspect to assess it other than as a part of the real estate.

Decree accordingly.