B-165255, OCT. 24, 1968

B-165255, OCT. 24, 1968

TO MISS SOPHIE G. CYZESKI:

THIS IS WITH REFERENCE TO YOUR LETTER OF SEPTEMBER 10, 1968, REFERENCE 3622, SUBMITTING FOR ADVANCE DECISION THE QUESTION OF ENTITLEMENT TO PAYMENT OF PURPORTED REAL ESTATE COSTS ON THE PART OF MR. LORNE L. TESKE, AN EMPLOYEE OF THE BUREAU OF RECLAMATION, IN CONNECTION WITH A PERMANENT CHANGE OF STATION FROM OTHELLO, WASHINGTON, TO MATTAWA, WASHINGTON.

YOU HAVE ENCLOSED MR. TESKE'S VOUCHER IN THE AMOUNT OF $594.33, WHICH REPRESENTS SALES COMMISSION AND OTHER EXPENSES INCURRED IN THE SALE OF A TRACT OF LAND AND A MOBILE HOUSE TRAILER WHICH WAS ATTACHED TO A BASEMENT ERECTED ON THE PROPERTY.

THE RECORD INDICATES THAT SINCE MATTAWA WAS DESIGNATED AS AN ISOLATED STATION MR. TESKE WAS GIVEN THE OPTION OF MOVING INTO A FURNISHED GOVERNMENT HOUSE TRAILER OR TRANSPORTING HIS OWN TRAILER. MR. TESKE ELECTED TO MOVE INTO THE GOVERNMENT TRAILER AND DISPOSED OF HIS MOBILE HOME WHICH INCLUDED SUCH IMPROVEMENTS AS A BASEMENT UNDER THE TRAILER, AN UNDERGROUND SPRINKLER SYSTEM IN THE FRONT YARD, TWO VEGETABLE GARDENS, SHRUBS AND TREES. IN RESPONSE TO OUR REQUEST YOU SUBMITTED THE FOLLOWING ADDITIONAL INFORMATION: "THE OFFICE OF THE ADAMS COUNTY (STATE OF WASHINGTON) AUDITOR STATED THAT MR. TESKE'S TRAILER WAS NOT LISTED AS REAL ESTATE IN THEIR RECORDS. INFORMATION PROVIDED BY MR. TESKE INDICATES THAT THE TRAILER WAS NOT DISMANTLED AND THE WHEELS, AXLE AND TONGUE WERE NOT REMOVED; THE TRAILER WAS SET ON WOOD AND CONCRETE BLOCKS, THE BACK HALF OF THE TRAILER WAS OVER THE BASEMENT WITH SKIRTING AROUND THE TRAILER BUT IT WAS NOT SECURELY FASTENED TO THE BASEMENT; ELECTRICITY TO THE TRAILER WAS PROVIDED BY THE WASHINGTON WATER POWER COMPANY AND WATER FOR MR. TESKE'S TRACT OF LAND WAS PROVIDED BY A DOMESTIC WATER ASSOCIATION.'

YOU INQUIRE AS TO WHETHER THE ABOVE EXPENSES ARE REIMBURSABLE TO THE EMPLOYEE AS EXPENSES INCURRED IN THE SALE OF A RESIDENCE.

IN THIS CONNECTION WE STATED IN B-164707, AUGUST 26, 1968:

"WHILE 5 U.S.C. 5724 (B) AND SECTION 9 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, CONTEMPLATE REIMBURSEMENT OF THE EXPENSES OF TRANSPORTING A MOBILE DWELLING UPON TRANSFER OF AN EMPLOYEE TO A NEW OFFICIAL STATION NEITHER THE STATUTE NOR THE REGULATIONS EXPRESSLY AUTHORIZE REIMBURSEMENT OF THE EXPENSES OF THE SALE OF A MOBILE DWELLING INCIDENT TO THE TRANSFER OF STATION. IN THAT REGARD, HOUSE REPORT NO. 1199, 89TH CONGRESS, ON H.R. 10607, ENACTED AS PUBLIC LAW 89-516, IN DISCUSSING THE SALE OR PURCHASE OF A RESIDENCE SPECIFICALLY REFERS TO - REAL ESTATE.- (SEE PP. 6 AND 13.)

"IF AUTHORIZED BY BUILDING REGULATIONS OR CONSTRUCTION CODES IN A GIVEN LOCALITY, OUR VIEW IS THAT A MOBILE DWELLING OR TRAILER MIGHT BE SO PERMANENTLY AFFIXED TO THE LAND BY THE CONSTRUCTION OF A FOUNDATION AND PERMANENT CONNECTIONS WITH UTILITIES SERVICES AS TO CONVERT A MOBILE DWELLING INTO A HOUSE WHICH COULD BE CONSIDERED AS REAL PROPERTY WITHIN THE PURVIEW OF 5 U.S.C. 5724A (A) (4). IT COULD THUS CEASE TO BE A - MOBILE- DWELLING.'

WITH RESPECT TO EXEMPTION FROM TAXATION AS A MOBILE TRAILER (PERSONAL PROPERTY) BECAUSE OF BEING AFFIXED TO THE REALTY THE REVISED CODE OF WASHINGTON PROVIDES:

"82.50.180 EXEMPTIONS

"/5) A MOBILE HOME WHICH HAS SUBSTANTIALLY LOST ITS IDENTITY AS A MOBILE UNIT BY VIRTUE OF BEING PERMANENTLY FIXED IN LOCATION UPON LAND OWNED BY THE OWNER OF THE MOBILE HOME AND PLACED ON A PERMANENT FOUNDATION, SUBSEQUENT TO THE REMOVAL OF THE HITCH, WHEELS AND AXLES OF SAID UNIT, AND WITH FIXED PIPE CONNECTIONS WITH SEWER, WATER OR OTHER UTILITIES.

"FOLLOWING THE PERMANENT PLACEMENT OF SAID MOBILE HOME AS PROVIDED HEREIN, AND UPON THE REQUEST OF THE OWNER, MADE TO THE COUNTY ASSESSOR, THE ASSESSOR SHALL CONFIRM COMPLIANCE WITH THE CONDITIONS OF THIS SUBSECTION AND IF THE UNIT SO QUALIFIES, THE UNIT WILL BE ENTERED ON THE REAL PROPERTY TAX ROLLS OF THE INVOLVED COUNTY, AND SAID UNIT SHALL BE EXEMPTED FROM THE PROVISIONS OF THIS CHAPTER FROM AND AFTER THE DATE IT IS ASSESSED AS A PART OF THE REAL PROPERTY.'

THE VARIOUS DOCUMENTS CONNECTED WITH THE CLAIM, SUCH AS THE CONTRACT AND THE CLOSING STATEMENT, EVIDENCE THAT THE MOBILE TRAILER IN QUESTION WAS REGARDED AS PERSONAL PROPERTY. UPON ITS SALE BY MR. TESKE TO THE PURCHASER THE SALES TAX WAS PAID AND THE PERSONAL PROPERTY TAX WAS APPORTIONED BETWEEN THE PARTIES. MOREOVER, AS PREVIOUSLY INDICATED THE TRAILER'S WHEELS AND AXLES HAD NOT BEEN REMOVED.

IN DETERMINING THE POINT AT WHICH PERSONAL PROPERTY BECOMES REALTY THE SUPREME COURT OF THE STATE OF WASHINGTON IN LIPSETT STEEL PRODUCTS, INC. V KING COUNTY, 409 P.2D 475, HELD IN PART AS FOLLOWS:

"IN ANY EVENT, IN ASCERTAINING WHETHER OR NOT IMPROVEMENTS TO BUILDING OR LAND HAVE BECOME, IN LEGAL CONTEMPLATION, A PART OF THE REALTY TO WHICH THEY ARE ANNEXED, THE INTENTION OF THE PARTIES IS ONE OF THE DOMINANT FACTORS OR DETERMINANTS:

"-THE TRUE CRITERION OF A FIXTURE IS THE UNITED APPLICATION OF THESE REQUISITES: (1) ACTUAL ANNEXATION TO THE REALTY, OR SOMETHING APPURTENANT THERETO; (2) APPLICATION TO THE USE OR PURPOSE TO WHICH THAT PART OF THE REALTY WITH WHICH IT IS CONNECTED IS APPROPRIATED; AND (3) THE INTENTION TO THE PARTY MAKING THE ANNEXATION TO MAKE A PERMANENT ACCESSION TO THE FREEHOLD.- FORMAN V COLUMBIA THEATER CO., 20 WASH. 2D 685, 695, 148 P.2D 951 (1944).'

BECAUSE OF THE FOREGOING OUR VIEW IS THAT THE EXPENSES INCURRED BY MR. TESKE IN THE SALE OF HIS HOUSE TRAILER CANNOT BE REGARDED AS CONNECTED WITH A REAL ESTATE TRANSACTION WITHIN THE MEANING OF SECTION 4 OF CIRCULAR A-56. THEREFORE MR. TESKE IS NOT ENTITLED TO REIMBURSEMENT OF SUCH EXPENSES. SEE B-164707, AUGUST 26, 1968 (COPY ENCLOSED).

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.