Opinion
October 8, 1998
125 — TAXATION — Homestead Exemption La. Const. Art. VII, Sec. 20
Whether incarceration of a homeowner in a state or federal penitentiary would affect his ability to claim a homestead exemption must be determined on a case by case basis.
Honorable Carroll D. Ellzey Assessor, Sabine Parish 400 S. Capitol, Room 106 Many, Louisiana 71449
Dear Mr. Ellzey:
You inquired as to whether a homeowner who otherwise qualified for a homestead exemption, loses the exemption status while incarcerated in a state or federal penitentiary. We have been unable to find any statutory provision limiting the rights of state or federal prisoners with regard to their ability to claim a homestead exemption, other than the requirement of occupation of the residence on which the exemption is claimed, found in Article VII, Sec. 20(A) of the Louisiana Constitution. Whether a homeowner's incarceration in a state or federal penitentiary would affect his ability to claim the homestead exemption would depend on the facts of his particular situation. This office is not in a position to determine whether a particular person's property is entitled to the exemption, but we are enclosing copies of Attorney General Opinions No. 96-99 and 96-182, which you may find helpful in making your determination.
We hope this opinion provides you with the necessary information to satisfy your query.
Should you have further questions, please do not hesitate to contact us.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: ___________________________ RANDALL A. KARR ASSISTANT ATTORNEY GENERAL
RPI/RAK/dra
Enclosures
Date Received:
Date Released:
Randall A. Karr Assistant Attorney General
State of Louisiana DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 94005 BATON ROUGE TEL: (504) 342-7013 RICHARD P. IEYOUB 70804-9005 FAX: (504) 342-2090 ATTORNEY GENERAL APRIL 9, 1996 OPINION NUMBER 96-99
125 — TAXATION — Homestead Exemption
Mr. Sherel A. Martin, Jr. La. Const. Art. VII, Sec. 20 St. Mary Parish Assessor P.O. Box 264 Discussion of the inquiry an Assessor must Franklin, Louisiana 70538 undertake with regard to requirement of occupancy in order to grant a taxpayer the homestead exemption.
Dear Mr. Martin:
On your behalf the Louisiana Tax Commission has requested the opinion of this office regarding what constitutes occupancy for purposes of determining entitlement to the homestead exemption. Specifically, we have been asked to address three separate questions, as set forth below.
Before addressing your specific questions, we must advise that the determination of whether property is subject to an ad valorem tax exemption is a factual determination which is the responsibility of the various tax assessors, subject to review by the Tax Commission, and ultimately the courts. La. Const. VII, Sec. 18; R.S. 47:1952. Since the determination is a factual one, it is difficult to set forth any general rules as to what facts and circumstances which you should consider, or which are necessary to establish the homestead exemption.
Every claim for a homestead exemption must be determined according to the particular facts and circumstances surrounding the particula application. However, the previous court cases and Attorney General's opinions referred to herein may offer some guidance to you, as Assessor, as you make these decisions. In making determinations regarding homestead exemptions, due consideration should be given to the jurisprudence of this state, which has consistently held that exemptions from taxation must be strictly construed against the person(s) claiming the exemption. Mattingly v. Vial , 190 So. 313 (La. 1939); Ruston Hospital v. Riser , 191 So.2d 665 (La.App. 2nd Cir. 1966).
1. "Does the exemption apply for individuals working overseas and occupied by brothers, sisters, parents or wife and children? lf rented? If vacant? Please address the issue as a non-military individual, addressing a year or less situation and a period of perhaps five (5) years."
Op. Atty. Gen. 92-269, previously released by this office, appears to address your first question. Therein, this of office opined:
"The property claimed as a homestead must be actually occupied as a residence by the owner claiming the exemption. Brantley v. Pruitt , 175 La. 879, 144 So. 604 (La. 1932); Op. Atty. Gen. 1940-42, p. 4117. Once the homestead character attaches to the property, continuous and actual occupancy of the property claimed is unnecessary as a taxpayer does not lose the exemption by temporary absence. Op. Atty. Gen. 1948-50, p. 729. Attorney General opinions have found this to be the case where a person while living away returns to occupy the property regularly and does not rent the property to another; and where a person is required to live away from home and allows relatives to occupy the property rent free. Op. Atty. Gen. 1936-38, p. 1054; Op. Atty. Gen. 1940-42, p. 4088. If, however, the owner who claims the homestead never intends to return, even for any element of time in the future to occupy the residence as his home, then the owner would not be entitled to the homestead exemption. Op. Atty. Gen. 84-1058." (Emphasis added).
What is essential is that the homestead remain available for occupancy by its owner at all times, and that the owner intends to return to the homestead and again occupy it as his home. Op. Atty. Gen. 84-1058, Op. Atty. Gen. 77-470.
Please be advised that it is also the opinion of this office that the length of time that a person is away from his homestead is not, in and of itself, necessarily determinative of whether that person intends to occupy the home as his homestead. What is important is the intention to return. While the length of time a person has been away from a residence may be considered as a factor in your evaluation, you must consider all of the facts and circumstances of each application.
2. "Camps at Cypremort Point owned by taxpayers from neighboring parishes are cancelling their homestead exemption in those parishes and applying for homestead exemption on their camps in St. Mary. Indications are that they are maintaining their original residence."
In Op. Atty. Gen. 92-269, this office recognized that a person may have more than one residence, and that the is entitled to have a homestead exemption on one of them as long as the intends to return to the one residence where he claims the exemption at some point in the future, The same conclusion was reached in Op. Atty. Gen. 86-364. Of course, both of these opinions presume, as indicated by use of the word "return", that an individual claiming the exemption who is not currently occupying the home claimed as his homestead has actually "occupied" the home as his homestead at some point in the past. As such, you should no doubt consider whether the taxpayers in question have "occupied" their camps in the past, when you make your determination regarding their applications.
3. "Camps at Cypremort Point owned by taxpayers from neighboring parishes and the taxpayers are renting apartments or houses and are not receiving homestead exemption in their respective parishes. Most of these are physicians, business owners, attorneys and students at USL. Indications are they are maintaining their present apartments or rent houses and residing and working out of the Parish. Please indicate method to be used in determining residency."
We must point out that the use of the term "residency" is somewhat of a misnomer, as the constitutional provision pertaining to the homestead exemption does not refer to residency, but instead to occupancy. Although taxpayers can maintain more than one residence, they can only maintain one homestead. Op. Atty. Gen 86-364; Op. Atty. Gen 92-269. Our answer to your second question would also be applicable to your third question. Furthermore, as is no doubt clear from our answers to your previous questions, the determination which you must make with regard to occupancy is a factual one.
We trust the foregoing to be of some assistance.
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: ______________________________ JEANNE-MARIE ZERINGUE BARHAM Assistant Attorney General
RPI:JMZB:jv
cc: Louisiana Tax Commission
State of Louisiana DEPARTMENT OF JUSTICE BATON ROUGE P.O. Box 94005 RICHARD P. IEYOUB 70804-9005 TEL: (504) 342-7013 ATTORNEY GENERAL FAX: (504) 342-7335
MAY 6, 1996 OPINION NUMBER 96-182
Ms. Ann R. Laurence, CLAA Executive Secretary 125 — TAXATION — Homestead Exemption Louisiana Tax Commission La. Const. Art. VII, Sec. 20 P.O. Box 66788 Baton Rouge, Louisiana 70896 The legal "residency" or "domicile" of the owner of a particular residence is not directly relevant to a determination of whether that residence qualifies as a "bona fide homestead" for purposes of the homestead exemption. Rather, La. Const. Art. VII, Sec. 20(A) refers to the requirement that the residence be "owned and occupied by any person".
Dear Ms. Laurence:
On behalf of Assessor Sherel A. Martin, Jr., you have requested an opinion of this office regarding the entitlement of a certain taxpayer to a homestead exemption on a residence owned by the taxpayer in St. Mary Parish. The taxpayer has an out of state mailing address, and is, apparently, rarely at the residence upon which she claims an exemption. In particular, Mr. Martin questions whether this taxpayer meets "the residency requirements" for a homestead exemption.
Please be advised that it is beyond the purview of this office to determine whether a particular taxpayer's property is entitled to a homestead exemption. As stated in previous opinions of this office, that determination is a factual one which is the responsibility of the various assessors, subject to the review of the Tax Commission, and ultimately by the courts. La. Const. Art. VII, Sec. 18; R.S. 47:1952.
However, it is the opinion of this office that the legal "residency" or "domicile" of the owner of a particular residence is not directly relevant to a determination of whether that residence qualifies as a"bona fide homestead" for purposes of the homestead exemption. Rather, La. Const. Art. VII, Sec. 20(A) refers to the requirement that the residence be "owned and occupied by any person".
Unfortunately, our research of the jurisprudence of this state reveals no definition of the word " occupied " for purposes of the homestead exemption. Mr. Martin may, however, wish to refer to Atty. Gen Op. No. 96-99 (which was recently released to Mr. Martin by this office) as it contains a discussion of "occupancy" by individuals who are absent from the residence upon which the homestead exemption is sought. I am also enclosing a copy of Atty. Gen Op. No. 92-269, which contains a comprehensive discussion of the few cases, and also the opinions of this of office that have addressed, to the extent possible, "occupancy" for purposes of the homestead exemption.
Trusting the foregoing to be of some assistance, we remain,
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: _______________________________ JEANNE-MARIE ZERINGUE BARHAM Assistant Attorney General
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cc: Hon. Sherel A. Martin, Jr.
State of Louisiana DEPARTMENT OF JUSTICE BATON ROUGE RICHARD P. IEYOUB 70804-9005 ATTORNEY GENERAL
MAY 12, 1992 OPINION NUMBER 92-269
OPINION NUMBER 92-269 Honorable Michael Wooden, CRA, CLA 125 — TAXATION — Homestead Exemption Assessor, Morehouse Parish P.O. Box 1177 Art. VII, Section 20(A) (1) of 1974 La. Bastrop, LA 71221-1177 Const. R.S. 47:1703.1(B)
What constitutes "occupied" for homestead exemption purposes.
Dear Mr. Wooden:
You requested the opinion of this office as to what constitutes "occupied" for purposes of Article VII, Section 20(A) ( 1), of the Louisiana Constitution of 1974 (the "homestead exemption").
Article VII, Section 20(A) of the Louisiana Constitution provides:
(1) The bona fide homestead, consisting of a tract of land or two or more tracts of land with a residence on one tract and a field, pasture, or garden on the other tract or tracts, not exceeding one hundred sixty acres, buildings and appurtenances, whether rural or urban, owned and occupied by any person, shall be exempt from state, parish, and special ad valorem taxes to the extent of seven thousand five hundred dollars of the assessed valuation. (Emphasis supplied.)
We have found no specific definition of "occupied" for the purposes of the homestead exemption. The determination of whether or not a particular party "occupies" a place as a residence sufficiently to meet constitutional requirements is based on the individual facts of each case. Earlier constitutions of the State of Louisiana also required that the property be "occupied" in order to be entitled to the homestead exemption. For this reason, prior jurisprudence and Attorney Generals' opinions may offer some guidance to you, as Assessor, when making the determination of when a tract of land is deemed "occupied" for purposes of the homestead exemption. The following is a synopsis of the pertinent jurisprudence and opinions which we hope you will find helpful.
It is well settled that only one homestead exemption can be claimed. Corcoran v. Andrews, 195 So.2d 767, 770 (La.App. 2nd Cir. 1967); citing to Crawford-Jenkins and Booth v. Rogers, 129 La. 832, 56 So. 904 (1911); Op. Atty. Gen. 1940-42, p. 4117; Op. Atty. Gen. 1942-22, p. 1678. If two pieces of property are claimed as a homestead, one must be occupied as a residence by the claimant and the other must be used as a field, garden or pasture by the same claimant. Op. Atty. Gen. 1942-44, p. 1660; Op. Atty. Gen. 1942-22, p. 1678. Since a person may have more than one residence, he is entitled to have a homestead exemption on one of them as long as he intends to return to the one residence with the exemption at some point in the future. Op. Atty. Gen. No. 86-364; See also R.S. 47:1703.1(B).
The property claimed as a homestead must be actually occupied as a residence by the owner claiming the exemption. Brantley v. Pruitt, 175 La. 879, 144 So. 604 (La. 1932); Op. Atty. Gen. 1940-42, p. 4117. Once the homestead character attaches to the property, continuous and actual occupancy of the property claimed is unnecessary as a taxpayer does not lose the exemption by temporary absence. Op. Atty. Gen. 1948-50, p. 729. Attorney General opinions have found this to be the case where a person while living away returns to occupy the property regularly and does not rent the property to another; and where a person is required to live away from home and allows relatives to occupy the property rent free. Op. Atty. Gen. 1936-38, p. 1054; Op. Atty. Gen. 1940-42, p. 4088. If, however, the owner who claims the homestead never intends to return, even for any element of time in the future to occupy the residence as his home, then the owner would not be entitled to the homestead exemption. Op. Atty. Gen. 84-1058.
Where part of the property is used as income producing property, and another part is occupied as a residence, the part occupied by the owner as a residence is exempt, and the income producing part is not exempt. Op. Atty. Gen. No. 83-1057; Op. Atty. Gen. 1940-42, p. 4129; Op. Atty. Gen. 1934-36, p. 1144; Op. Atty. Gen. 1934-36, p. 1138.
Trusting that this adequately responds to your request, I remain,
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: __________________________________ ELIZABETH K. HARRIS Assistant Attorney General
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