State Bar of Wisconsin
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Wisconsin Court of Appeals
2000 WI App 268
PUBLISHED OPINION
COURT OF APPEALS DECISION
DATED AND FILED
November 16, 2000
Cornelia G. Clark
Clerk, Court of Appeals
Of Wisconsin
NOTICE
This
opinion is Subject to further editing. If published, the official
version will appear in the bound volume of the Official Reports.
A party
may file with the Supreme Court a petition to review an adverse decision by the
Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
Riehard
Ahrens, Shirley Ahrens, Robert Albright, Shirley Albright, Barbara Allen,
Nicholas
Allen, Dolores Allen, June Ann Amell,Arnold Anderson, Loraine Anderson, John
Augustyniak, Margaret Augustyniak, Milton Bates, Helen Bates, Robert Bauer, Gail
Bauer, David Bear, Karen Bear, Michael Bellettiere,
Pat
Bellettiere, Otto Benz, Glen Black, Melaine Black, Edward Blanchard, Jane
Blanchard, Kathy Blazyk, Nordine Bolstad, Nancy Bolstad, Jim Booker, Diana
Booker, Virginia Boswell, Robert Boszko, Kathy Boszko, Donald Brake, Mary
Brake, Albert Brueggeman, Mary Ann Brueggeman, Fred Burrow, Rosemary Burrow,
Wallace Campbell, Donald Childers, Robert Clark, Ilona Clark,
Gary
Curry, Sandra Curry, Donald Dahlke, Lyla· Dahlke, Emery DeRosier, Luvern
DeRosier, M.A. DiMarcantonio, Thomas Draws, Vernon Duessing, Dean Eveland,
Donna Eveland, Lewis Farmer, Kathleen Farmer, Louis Finger, Loretta Finger,
Robert Fisher, Jean Fisher, Mike Foley, Mary Lou Foley, Charles Foudray, Milly
Foudray, Diane Franke, Bill Neff, Wayne Frantz, Janet Frantz, John Fritz, Paul
Gauer, Sandy Gauer, Gene Gehrt, Jane Gehrt, Antonino Giardina, Rose Giardina,
Frank Giardina, Donald Ginchoff, Patricia Ginchoff, Sandra Goff, Kenneth Gray,
Jane Gray, Richard Gross, Jane Gross, Wilbur Groth, Lois Groth, Caroline
Gruner, Joe Gruspier, Alice Gruspier, Donna Gurholt, Robert Hanlon, Shirley
Hanlon, William Hetka, Gail Hetka, Donald Heidner, Helen Heidner, Jack Hill,
Mary K. Hill, Edward Hinchley, Marge Hinchley, Darwin Hoefs, Judy Hoefs, Bill
Hoke, Rita Hoke, Philip Howard, Helen Howard, Albert Huber, Arlene Huber, Dean
Huffstutler, Jinny Huffstutler, Craig Hughes, Sandra Hughes, Edward Hughes,
Marlene Hughes, Terry Hurm, Susan Hurm, Lenard W. Jendal, Edith Jendal, Herman
L. Johnson, Mary Kane, Edward Kaszubowski, Steven Kostakos, Francis Kozina,
Maryellen Kozina, Walter Kruszynski, Loretta Kruszynski, Joseph Kucher, Ruth
Kucher, Elaine LaPlant, William Linde, Timothy Liv, Christine Liv, Mike
Lockard, Tina Lockard, Richard Lowe, Dawn Lowe, Ralph Lussier, Theresa Lussier,
James Lytle, Rita Lytle, Donald Mason, Barbara Mason, Marshall Matijevich, C.
James Mayer, Betty Mayer, James McCarthy, Elizabeth McCarthy, Albert McGraw,
Evelyn McGraw, Thomas McGuire, Howard McIntosh, Rosetta McIntosh, William A.
Meinzer, Marion Melzer, Joseph Michalowski, Rose Michalowski, Raymond Murphy,
Lillian Murphy, Walter Mysliwiec, Marcia Mysliwiec, Clarence Negus, Imelda
Negus, Edwin Nelson, Carl Nickel, Jack Niemann, Linda
Niemann,
Marion Obukowicz, Grace Obukowicz, Patricia Olson, Michael Parsons, Linda
Parsons, Thomas Peterson, Diane Peterson, Craig Pearson, JoAnn Pearson, Melvin
Peterson, Ruth Peterson, William Pflanz, Jackie Pflanz, Leonard Pflughaupt,
Caryl Pflughaupt, Wallace Phillips, Carolyn Phillips, Donald Pierce, Jeanne
Pierce, Phillip Piotrowski, Deborah Piotrowski, Leonard Piejda, Mary Piejda,
Brian Pluta, Kathryn Pluta, Homer Proctor, Joyce Proctor, Michael Rausch,
Richard Renaud, Vincenette Renaud, Wayne Rice, Dolores Rice, John Riley,
Annette Riley, Norman Rippberger, Barbara Rippberger, Dale Rogers, Eugene
Romanski, Ilene Romanski, James Rother, Hugh Ryan, Carl Schimka, Roman Schmidt,
Nancy Schmidt, Clarence Schultz, Joyce Schultz, Warren Schultz, Harriet
Schultz, T.
George
Schumert, Lemke Schurmann, Glenn Shelley, Robert Short, Rosa Short, Gary Shulz,
Carol Shulz, Louis D. Simmons, Lillian Simmons, George C. Sims, Jr., Marvin E.
Smith, Ronald Solner, Ray Staley, Beverly Staley, Frank Stefaniak, Londine
Stefaniak, Milan Sulaver, Corinne Sulaver, Joseph Szamlewski, Barbara
Szamlewski, Wesley Tanner, Carmelia Tanner, Ronald Theis, Jean Theis, Martin
Tivador, Doris Tivador, Stephen Tobolic, Charles Ulam, Josephine Ulam, David
Wallestad, Joyce Wallestad, Lloyd Weber, Thomas Weinmann, Madeline Weinmann,
Harry Whitney, Donna Whitney, Robert Wirt, Jr., Robert Wirt, Sr., Marilyn Wirt,
Jyles Womack, Lynn Womack, Hubert J. Wright, Mary Wright, Jerome Young, Fay
Young and Anthony Zappia,
Plaintiffs-Appellants,
V.
Town of Fulton, Defendant-Respondent.
Richard
Ahrens, Shirley Ahrens, Robert Albright, Shirley Albright, Barbara Allen,
Nicholas Allen, Dolores Allen, June Ann Amell, Arnold Anderson, Lorraine
Anderson, John Augustyniak, Margaret Augustyniak, Milton Bates, Helen Bates,
Robert Bauer, Gail Bauer, David Bear, Karen Bear, Otto Benz, Glen Black,
Melaine Black, Kathy Blazyk, Nordine Bolstad, Nancy Bolstad, Jim Booker, Diana
Booker, Virginia Boswell, Robert Boszko, Kathy Boszko, Donald Brake, Mary
Brake, Albert Brueggeman, Mary Ann Brueggeman, Fred Burrow, Rosemary Burrow,
Wallace Campbell, Donald Childers, Robert Clark, Ilona Clark, Gary Curry,
Sandra Curry, Donald Dahlke, Lyla Dahlke, Emery DeRosier, Luvern DeRosier, M.A.
DiMarcantonio, Thomas Draws, Vernon Duesing, Lewis Farmer, Kathleen Farmer, Louis
Finger, Loretta Finger, Robert Fisher, Jean Fisher, Charles Foudray, Milly
Foudray, Bill Neff, Diane Franke, Wayne Frantz, Janet Frantz, John Fritz, Paul
Gauer, Sandy Gauer, Gene Gehrt, Jane Gehrt, Antonino Giardina, Rose Giardina,
Frank Giardina, Donald Ginchoff, Patricia Ginchoff, Sandra Goff, Kenneth Gray,
Jane Gray, Richard Gross, Jane Gross, Wilbur Groth, Lois Groth, Joe Gruspier,
Alice Gruspier, Donna Gurholt, Robert Hanlon, Shirley Hanlon, William Hetka,
Gail Hetka, Donald Heidner, Helen Heidner, Jack Hill, Mary
K. Hill,
Edward Hinchley, Marge Hinchley, Darwin Hoefs, Judy Hoefs, Bill Hoke, Rita
Hoke, Philip Howard, Helen Howard, Albert Huber, Arlene Huber, Dean
Huffstutler, Jinny Huffstutler, Edward Hughes, Sandra Hughes, Edward Hughes,
Marlene Hughes, Terry Hurm, Susan Hurm, Lenard Jendal, Edith Jendal, Herman L.
Johnson, Mary Kane, Edward Kaszubowski, Steven Kostakos, Francis Kozina,
Maryellen Kozina, Walter Kruszynski, Loretta Kruszynski, Joseph Kucher, Ruth
Kucher, Elaine LaPlant, William Linde, Timothy Liv, Christine Liv, Ralph
Lussier, Theresa Lussier, James Lytle,
Rita
Lytle, Donald Mason, Barbara Mason, Marshall Matjevich, C. James Mayer, Betty
Mayer, James McCarthy, Elizabeth McCarthy, Albert McGraw, Evelyn McGraw, Thomas
McGuire, William A. Meinzer, Burness Melton, Juanita Melton, Marion Melzer,
Joseph Michalowski, Rose Michalowski, Raymond Murphy, Lillian Murphy, Walter
Mysliwiec, Marcia Mysliwiec, Clarence Negus, Imelda Negus, Edwin Nelson, Carl
Nickel, Jack Niemann, Linda Niemann, Marion Obukowicz, Grace Obukowicz, Willard
Parejko, Michael Parsons, Linda Parsons, Thomas Peterson, Diane Peterson,
William Pflanz, Jackie Pflanz, Leonard Pflughaupt, Caryl Pflughaupt, Wallace
Phillips, Carolyn Phillips, Donald Pierce, Jeanne Pierce, Brian Pluta, Kathryn
Pluta,
Michael
Rausch, Richard Renaud, Vincenette Renaud, Wayne Rice, Dolores Rice, John
Riley, Annette Riley, Norman Rippberger, Barbara Rippberger, Dale Rodgers,
Eugene Romanski, Ilene Romanski, James Rother, Hugh Ryan, Carl Schimka, Roman Schmidt,
Nancy Schmidt, Clarence Schultz, Joyce Schultz, Warren Schultz, Harriet
Schultz, George T. Shumert, Glen Shelley, Robert Short, Rosa Short, Gary Shulz,
Carol Shulz, Louis D. Simmons, Lillian Simmons, George C. Sims, Jr., Marvin
Smith, Ronald
Solner,
Ray Staley, Beverly Staley, Frank Stefaniak, Londine Stefaniak, Milan Sulaver,
Corinne Sulaver, Joseph Szamlewski, Barbara Szamlewski, Wesley Tanner, Carmelia
Tanner, Ronald Theis, Jean Theis, Martin Tivador, Doris Tivador, Stephen
Tobolic, Charles Ulam, Josephine Ulam, David Wallestad, Joyce Wallestad, Lloyd
Weber, Harry Whitney, Donna Whitney, Robert Wirt, Jr., Robert Wirt, Marilyn
Wirt, Jyles Womack, Lynn Womack, Hubert J. Wright, Mary Wright, Jerome Young,
Fay Young and Anthony Zappia,
Plaintiffs-Appellants,
v.
Town of Fulton, Defendant-Respondent.
Richard
Ahrens, Shirley Ahrens, Robert Albright, Shirley Albright, Barbara Allen,
Nicholas Allen, Dolores Allen, June Ann Amell, Arnold Anderson, Lorraine
Anderson, John Augustyniak, Margaret Augustyniak, Milton Bates, Helen Bates,
Robert Bauer, Gail Bauer, David Bear, Karen Bear, Michael Bellettiere,
Pat
Bellettiere, Otto Benz, Glen Black, Melanie Black, Edward Blanchard, Jane
Blanchard, Kathy Blazyk, Nordine Bolstad, Nancy Bolstad, Jim Booker, Diana
Booker, Virginia Boswell, Robert Boszko, Kathy Boszko, Donald Brake, Mary
Brake, Albert Brueggeman, Mary Ann Brueggeman, Fred Burrow, Rosemary Burrow,
Wallace Campbell, Donald Childers, Robert Clark, Ilona Clark, Gary Curry,
Sandra Curry, Donald Dahlke, Lyla Dahlke, Emery DeRosier, Luvern DeRosier, M.A.
DiMarcantonio, Thomas Draws, Vernon Duesing, Dean Eveland, Donna Eveland, Lewis
Farmer, Kathleen Farmer, Louis Finger, Loretta Finger, Robert Fisher, Jean
Fisher, Mike Foley, Mary Lou Foley, Charles Foudray, Milly Foudray, Bill Neff,
Diane Franke, Wayne Frantz, Janet Frantz, John Fritz, Paul Gauer, Sandy Gauer,
Gene
Gehrt,
Jane Gehrt, Antonio Giardina, Rose Giardina, Frank Giardina, Donald Ginchoff,
Patricia Ginchoff, Sandra Goff, Kenneth Gray, Jane Gray, Richard Gross, Jane
Gross, Wilbur Groth, Lois Groth, Caroline Gruner, Joe Gruspier, Alice Gruspier,
Donna Gurholt, Robert Hanlon, Shirley Hanlon, William Hefka, Gail Helka, Donald
Heidner, Helen Heidner, Jack Hill, Mary K. Hill, Edward Hinchley, Marge
Hinchley, Darwin Hoefs, Judy Hoefs, Bill Hoke,
Rita
Hoke, Phillip Howard, Helen Howard, Albert Huber, Arlene Huber, Dean
Huffstutler, Jinny Huffstutler, Craig Hughes, Sandra Hughes,
Edward
Hughes, Marlene Hughes, Terry Hurm, Susan Hurm, Lenard W. Jendal, Edith Jendal,
Herman L. Johnson, Mary Kane, Edward Kaszubowski, Steven Kostakos, Dr. Francis
Kozina, Maryellen Kozina, Walter Kruszynski, Loretta Kruszynski, Joseph Kucher,
Ruth Kucher, Elaine LaPlant, William Linde, Timothy Liv, Christine Liv, Mike
Lockard, Tina Lockard,
Richard
Lowe, Dawn Lowe, Ralph Lussier, Theresa Lussier, James Lytle, Rita Lytle,
Donald Mason, Barbara Mason, Marshall Matijevich, C. James Mayer, Betty Mayer,
James McCarthy, Elizabeth McCarthy, Albert McGraw, Evelyn McGraw, Thomas
McGuire, Howard Mcintosh, Rosetta Mcintosh, William A. Meinzer, Burness Melton,
Juanita Melton, Marion Melzer, Joseph Michalowski, Rose Michalowski, Raymond
Murphy, Lillian Murphy, Walter Mysliwiec, Marcia Mysliwiec, Clarence Negus,
Imelda Negus, Edwin Nelson, Carl Nickel, Jack Niemann, Linda Niemann, Marion
Obukowicz, Grace Obukowicz, Patricia Olson, Willard Parejko, Michael Parsons,
Linda Parsons, Thomas Peterson, Diane Peterson, Craig Pearson, JoAnn Pearson,
Melvin Peterson, Ruth Peterson, William Pflanz, Jackie Pflanz, Leonard
Pflughaupt, Caryl Pflughaupt, Wallace Phillips, Carolyn Phillips, Donald
Pierce, Jeanne Pierce, Phillip Piotrowski, Deborah Piotrowski, Leonard Piejda,
Mary Piejda, Brian Pluta, Kathryn Pluta, Homer Proctor, Joyce Proctor, Michael
Rausch, Richard Renaud, Vincenette Renaud, Wayne Rice, Dolores Rice, John
Riley, Annette Riley, Norman Rippberger, Barbara Rippberger, James Rother,
Roman Schmidt, Nancy Schmidt, Clarence Schultz, Joyce Schultz, Warren
Schultz,
Harriet Schultz, Lemke Schurmann, Glenn Shelley, Marvin E. Smith, Wesley
Tanner, Carmelia Tanner, Martin Tivador, Doris Tivador, Stephen Tobolic, Lloyd
Weber, Harry Whitney, Donna Whitney, Robert Wirt, Jr., Robert Wirt, Marilyn
Wirt, Jyles Womack, Lynn Womack, Hubert J. Wright, Mary Wright, Jerome Young,
Fay Young and Anthony Zappia,
Plaintiffs-Appellants,
v.
Town of Fulton, Defendant- Respondent.
(001) APPEAL from a judgment of the
circuit court for Rock County:MICHAEL J. BYRON, Judge.Affirmed in part;
reversed in part and cause remanded with directions.
(002) Before
Dykman, P.J., Deininger, J., and William Eich, Reserve Judge.
(003) DEININGER,J. Richard Ahrens, and
numerous other owners of mobile homes located on individually owned lots in a
Rock County subdivision, appeal a judgment dismissing their action to recover
allegedly unlawful property taxes levied by Fulton Township.
(004) The trial court granted the Town's
summary judgment motion after concluding that, even if the mobile homes in
question were improperly classified as real property, they would have been
subject to personal property taxes in the same amount as the real property
taxes levied by the Town.
(005) We conclude that most of the mobile
homes at issue were properly classified as real property, and that at least one
that was improperly classified did not qualify for exemption from personal
property taxes.
(006) We thus affirm the judgment
dismissing the claims of the owners of these mobile homes.
(007) However, because we interpret the
requirements of the statutory exemption differently than did the trial court,
we reverse the appealed judgment in part and remand for a consideration of
whether any of the remaining owners can establish entitlement to the exemption.
(008) A "mobile home" is defined
by statute as a structure "that ... is, or was as originally constructed,
designed to be transported by any motor vehicle upon a public highway and
designed, equipped and used primarily for sleeping, eating and living quarters,
or is intended to be so used; and includes any additions, attachments, annexes,
foundations and appurtenances."
(009) Wis. Stat. §66.058(1)( d) (1997-98).1 Mobile homes in Wisconsin may be
taxed as real property, or as personal property, or they may be exempt from
property taxes altogether, depending on such things as their location, physical
support and size.
(009A) A mobile home, as defined in s. 66.058(1)(d), is an improvement to real property
if it is connected to utilities and is set upon a foundation upon land which is
owned by the mobile home owner.
(009B) In this section, a mobile home is
"set upon a foundation" if it is off its wheels and is set upon some
other support.
(009C) A mobile home, as defined in s. 66.058(l)(d), is personal property if the land
upon which it is located is not owned by the mobile home owner or if the mobile
home is not set upon a foundation or connected to utilities.
(010) Wis. Stat. §70.043.
However, mobile homes "that are no larger than 400
square feet and that are used primarily as temporary living quarters for
recreational, camping, travel or seasonal purposes" are exempted from
general property taxes. Wis. Stat. §70.111(19)(b).
(011) The plaintiffs are the owners of
"approximately 138 separate lots"
in subdivision known as Wisconsin's Rock River Leisure Estates.
(012) They commenced three separate
actions challenging the lawfulness of real property taxes the Town had levied
on mobile homes situated on their lots for the years 1995,
1996 and 1997.
(013) The three actions were consolidated,
and the parties stipulated that the facts pertaining to the mobile homes of
twenty plaintiffs would be deemed to be representative of all plaintiffs for
purposes of the Town's summary judgment motion.
(014) The parties' stipulation provides
the following facts regarding these twenty plaintiffs.
(015) Each of them has on his or her lot
a "basic unit" consisting of a "structure that is, or was as
originally constructed, designed to be transported by any motor vehicle upon a
public highway and designed, equipped and used primarily for sleeping, eating,
and living quarters."
(016) The floor area of these "basic
units" ranges from 372 to 420 square feet, with all but one of the twenty
being 400 square feet or less.
(017) Wheels remain on each of the basic
units, and with three exceptions, the weight of the units "is at least
partially on these wheels."
(018) The remaining weight of the units
is borne by "stabilizers" placed under them, such as cement or cinder
blocks or screw jacks.
(019) The owners all reside in their
basic units, but only a few do so year-round.
(020) Most reside in them for two to
seven months of the year.
(021) Each lot also contains "one or
more structures in addition to the basic unit."
(022) The "additional
structures" include such things as decks attached to the basic units with
lug nuts; screened rooms or porches on footings, attached to the basic units by
caulking; and free standing sheds.
(023) All of the basic units are
connected to utilities.
(024) The Town assessed and taxed all of
the owners' basic units and additional structures as improvements to real
estate in 1995, 1996
and 1997.
(025) The owners paid the taxes and filed
claims with the Town for the refund of "unlawful" taxes, which were
disallowed. See Wis. Stat. §74.35.
(026) This litigation followed, and the
Town moved for summary judgment of dismissal.
(027) The trial court concluded that a
mobile home on an owner's lot could not be taxed as real property unless
"the majority of the weight of the mobile home is borne by some support
other than its wheels."
(028) Nonetheless, because the court also
concluded that none of the mobile homes were exempt from personal property
taxes, it entered judgment dismissing the owners' claims.
(029) The owners appeal the judgment.
(030) We review an order for summary
judgment denovo, applying the same standards as the trial court.
(031) Voss v. City of Middleton, 162 Wis.2d 737, 748,470 N.W.2d 625 (1991).
(032) Summary judgment is proper when the
pleadings, answers, admissions and affidavits show no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
(033) Maynard v. Port
Publications, Inc., 98 Wis.2d 555, 558, 297 N.W.2d 500 (1980).
(034) The issues in this appeal largely
present questions of statutory interpretation, which we also decide denovo.
(035) See Truttschel v. Martin,
208 Wis.2d
361,364-65,560 N.W.2d 315 (et.
App. 1997).
(036) The owners' principal arguments
focus on what they claim to be the trial court's unconstitutional
"imposition" of a personal property tax on their mobile homes.
(037) They claim the trial court should
have ended its decision with its conclusion that "off its wheels and ...
set upon some other support," under Wis. Stat. §70.043(1), means that a mobile home that is connected to
utilities and situated on its owner's land may only be taxed as an improvement
to real property if "the majority of the weight of the mobile home is
borne by some support other than its wheels."
(038) And, because the trial court also
concluded that the record on summary judgment was insufficient to determine
whether most of the representative mobile homes did or did not meet its 50% support test, the owners assert that the court
should have denied the Town's motion and set the matter for trial.
(039) According to the owners, by going
on to analyze whether the mobile homes would have been taxable by the Town as
personal property, the trial court usurped the legislative function of taxation
and violated the owners' constitutional rights to due process and equal
protection of the laws.
(040) The Town responds that the trial
court was correct in dismissing the owners' claims, not only for the reason it
did, but also because the Town properly assessed the mobile homes in question
as improvements to real property under Wis. Stat. §70.043(1).
(041) We first conclude that our denovo
review of the appealed summary judgment must begin where the trial court's
analysis did-with the question of whether the mobile homes in question were
"set upon a foundation."
(042) If so, they were properly taxed as
real property, and we conclude that this was the case for most of the mobile
homes for which facts were presented on summary judgment.
(043) We further conclude that, the one
"representative" mobile home which did not meet the statutory
definition for an improvement to real property, was nonetheless not subject to
an unlawful tax.
(044) The owners concede that each of
their mobile homes is situated on land owned by the mobile home owner, and that
each is connected to utilities.
(045) Thus, there is no dispute that two
of the three requirements under Wis. Stat. §70.043
for taxing a mobile home as an improvement to real property are met.
(045) But, because wheels remain in place
on the "basic units," the owners claim that the final requirement for
real property taxation is not met-the units are not "off [their] wheels
and ... set upon some other support." See §70.043(1).
(046) The Town, on the other hand, argues that because all but one of the representative mobile homes are "set upon some other support" in addition to their wheels, each is "off its wheels" and is thus "set upon a foundation" within the meaning of the statute.
(047) We, like the trial court, conclude
that Wis. Stat. §70.043(1) is ambiguous because its meaning cannot readily
be determined from its plain language.
(048) The statute's definition of
"set upon a foundation," i.e., "off its wheels and ... set upon
some other support," is capable of being understood by reasonably
well-informed persons in two or more different ways.
(049)
See State v. Setagord, 211
Wis.2d 397,
406, 12, 565 N. W.2d 506 (1997).
(050) This language could mean, as the
owners maintain, that in order to be deemed an improvement to real property, a
mobile home must have its wheels physically removed, or, at a minimum, that the
entire weight of the mobile home must rest on something other than its wheels.
(051) Or, it could mean, as the Town
argues, that a mobile home is "off its wheels and ... set upon some other
support" whenever any part of its weight is borne by other than its
wheels.
(052) Finally, it could also mean, as the
trial court concluded, that what is required is that a majority of the weight
of the mobile home is borne by some support other than its wheels.
(053) When the language of a statute is
ambiguous, we are to turn to extrinsic aids such as the legislative history,
scope, context and purpose of the statute to determine legislative intent.
(054) Anderson v. City of
Milwaukee, 208 Wis.2d 18,25-26, 12,559 N.W.2d 563 (1997) (citations omitted).
(055) The legislative history of the
statute compels us to reject the trial court's "majority of the
weight" test.
(056) Wisconsin Stat. §70.043 was enacted as part of 1983 Wis. Act 342,
which originated with the Legislative Council Special Committee on Mobile Home
Taxation and Zoning.
(057) In its report to the legislature,
the Legislative Council noted that under then current law, a mobile home was
subject to taxation as real property if the value of "additions, attachments,
annexes, foundations and appurtenances" to the mobile home equaled or
exceeded 50% of the assessable value of the
mobile home.
(058)
Wisconsin Legislative Council Report No. 20
to the 1983 Legislature, at 3 (May 24, 1983) ("R.L. 83-20").
(059)
The report goes on to explain:
(060) The Committee received testimony
that the "50%" test under current
law has two major defects.
(061) First, it is difficult and
time-consuming for assessors to determine the value of a foundation, additions
and attachments to the mobile home as a percentage of the value of the mobile
home itself.
(062) Second, the 50%-of-value test is not an accurate indicator of whether a
given mobile home has taken on the character of a real estate improvement and,
therefore, should be subject to property taxation as is conventional housing.
(063) Id. The present
three-pronged test (connected to utilities, "set upon a foundation,"
on land owned by the mobile home owner) was thus recommended both because it
was deemed to be "a better indicator ... of when a given mobile home has
taken on the character of real property" and because a "more easilyadministered
standard is necessary."
(064) See Id. at 4, and "Property Taxation of Mobile Homes in
Wisconsin," Legislative Council Staff Brief 82-10, at 15 (July
1, 1982).
(065) A test which requires an assessor
to determine how much of the weight of a mobile home is supported by its
wheels, and how much is supported by other supports on which it partially
rests, could hardly be said to be more easily administered than the "50%-of-value" test it replaced.
(066) If the former test was deemed
"difficult and time-consuming," it is hard to see how a "primary
support" or "50%-ofweight"
test would not be more so.
(067) Moreover, it is not even clear how
an assessor would make the determination, resulting, as the Town argues, in a
large measure of speculation or arbitrariness.
(068) The history of the current
statutory language makes clear that the legislature intended to simplify and
streamline the personal-versus-real property determination, a goal that would
be thwarted if we were to adopt the trial court's interpretation.
(069) By the same token, we reject an
interpretation that would require the entire weight of a mobile home be
supported by other than its wheels before it may be deemed an improvement to
real estate
(070) This would be contrary to the
legislative purpose in enacting a real property/personal property distinction
in the taxation of mobile homes.
(071) The primary rationale under the
property tax system for distinguishing between real and personal property is
that personal property is more mobile than real property.
(072) It is easier to enforce and collect
property taxes which are levied upon real property than taxes which are levied
upon personal property.
(073) Therefore, assessment procedures,
payment due dates and the remedies which are available to collect property
taxes differ according to whether the property is classified as real property
or as personal property.
(074) R.L. 83-20, at 3-4. To
conclude that a mobile home may not be taxed as realty until its last ounce of
weight has been removed from its wheels would thwart the legislature's goal of
treating mobile homes which have "taken on the character of a real estate
improvement" the same as "conventional housing" for property
taxation purposes.
(075) See Id. at 3. To argue that mobile homes such as most of
those described in this record, which not only rest upon blocks or jacks, but
also have extensive additions and attachments on permanent footings, remain
"mobile" in character because the owners have chosen to leave wheels
under them, defies the purpose of the legislative distinction and, as the Town
argues, provides opportunities for manipulation of the property taxation
system.
(076) Having rejected two possible
alternatives as unreasonable and contrary to legislative intent, it remains for
us to consider whether interpreting Wis. Stat. §70.043(1) to require a mobile home to be taxed as an
improvement to real estate whenever any part of its weight is "off its
wheels and ... set upon some other support" is reasonable and consistent
with the legislature's intent and purpose.
(077)
We conclude that it is.
(078) First, we note that being "set
upon a foundation" is only one of three requirements for subjecting the
mobile home to taxation as real property.
(079) A mobile home on a rented lot in a
mobile home park or campground is excluded, no matter how much or how little it
rests on something other than its wheels.
(080) By the same token, a mobile home
that is temporarily parked on its owner's land is excluded because it would be
unlikely to be "connected to utilities" if it were truly in a storage
or transient status.
(081) And, even if on the owner's land
and connected to utilities for temporary use, an owner may preserve a unit's
mobile character by simply leaving it on its wheels and no other supports.
(082) Once the owner takes steps beyond
the connection to utilities to further reduce the home's mobility, e.g., by
resting it in whole or in part on blocks or other "stabilizers," it
is hard to see why the home should not then be treated, for tax purposes, the
same as "conventional housing," as the legislature intended.
(083) We thus conclude that when a mobile
home, situated on land owned by its owner, is connected to utilities and is not
completely supported by its wheels, but also rests in part on some "other"
means of support, it is "off its wheels" and "set upon some
other support," and is therefore "set upon a foundation" within
the meaning of Wis. Stat. §70.043(1).
(084) We find this interpretation to be
consistent with the legislature's intent and purpose, as evidenced by the
history of the statute, and it provides a reasonable and workable standard for
assessors and taxpayers alike.
(085) Most of the
"representative" mobile homes described in the record were thus
properly assessed by the Town as improvements to real property because they
rest, in whole or in part, on supports other than their wheels.
(086) We next consider the application of
the statute to the one mobile home described in the record as having no support
for the basic unit other than its wheels, but which was attached by caulking to
a substantial screen room and porch, which sits on footings.
(087) The Town argues that this mobile
home should also be deemed an improvement to real property because the
structures attached to the basic unit "are not supported by wheels at
all" and thus the "home is not 'mobile' in any sense of the
word."
(088) The Town's position is essentially
that, because the statutory definition of a mobile home "includes any
additions, attachments, annexes, foundations and appurtenances," Wis.
Stat. §66.058(1)(d), if any of these auxiliary items are present
and not on wheels, the mobile home must be deemed an improvement to real
property under Wis. Stat. §70.043(1).
(089) We disagree.
(090) We acknowledge that Wis. Stat. §70.043 refers to Wis. Stat. §66.058(1)(d)
for a definition of "mobile home."
(091) However, when defining what it
means for a mobile home to be "set upon a foundation," §70.043(1)
requires the mobile home to be "off its wheels" (emphasis
added).
(092) It makes no sense to talk about an
attached deck or porch being "off its wheels."
(093) The plain implication of this
language is that the legislature was referring to the "basic unit,"
which is the only structure that would once have been on wheels.
(094) And, although we agree with the
Town that a mobile home that is still "on its wheels" but is attached
in some way to another, more permanent structure, may be every bit as immobile
as one that is "off its wheels," attachment to other structures is not
the test the legislature has specified in §70.043
for making the real-versus-personal property distinction.
(095) What remains, then, is for us to
consider whether the owner of this last-described mobile home has established
that he or she was subjected to an "unlawful tax."
(096) Wisconsin Stat. §74.35(2)
permits "[a] person aggrieved by the levy and collection of an unlawful
tax assessed against his or her property" to "file a claim to recover
the unlawful tax against the taxation district which collected the tax,"
which is the cause of action the owners have alleged.
(097) An "unlawful tax" is a "general property tax with respect to which one or more errors specified in s. 74.33(1)(A) to (F) were made."
(098) Section 74.35(1). The specified errors are:
(098A) A clerical error has been made in
the description of the property or in the computation of the tax.
(098B) The assessment included real
property improvements which did not exist on the date under s. 70.10 for making the assessment.
(098C) The property is exempt by law from
taxation, except as provided under sub. (2).
(098D) The property is not located in the
taxation district for which the tax roll was prepared.
(098E) A double assessment has been made.
(098F) An arithmetic, transpositional or
similar error has occurred.
(099) Wis. Stat. §74.33(1).
(100) The owners alleged in their
complaint that the property taxes levied against their mobile homes were
unlawful "as provided in Wisconsin Statute §74.33(1)(A), (B) and (C)."
(101) If the Town committed an error in
levying and collecting property taxes on a mobile home that rests wholly on its
wheels, however, the error was that it intentionally, but erroneously,
classified the mobile home as an improvement to real property, rather than as
personal property.
(102) We fail to see, therefore, how the
error could be construed as "clerical" under §74.33(1)(a). Neither do we
believe the alleged error may be characterized as the inclusion of a real
property improvement that "did not exist" on the assessment date
under (1)(b).
(103) The owners do not claim that their
mobile homes did not exist on the assessment date, but that they do not
constitute "improvements to real property," but were instead personal
property under Wis. Stat. §70.043(2) and exempt from taxation under Wis. Stat. §70.111(19)(b).
(104) Thus, if any mobile homes were
unlawfully taxed, as alleged by the owners, it could only be because they were
"exempt by law from taxation" under Wis. Stat. §74.33(1)(c).
(105) To be exempt from taxation, a mobile
home, "as defined in s. 66.058,11 must be
"no larger than 400 square feet and ...
used primarily as temporary living quarters for recreational, camping, travel
or seasonal purposes." Wis. Stat. §70.111
(19)(b).
(106) And, as we have noted, the
definition of "mobile home" in Wis. Stat. §66.058(1)(d) specifically includes within it “any
additions, attachments, annexes, foundations and appurtenances" associated
with the mobile home.
(107) Dictionary definitions for these
terms include the following:
(107A) Addition-" [a] structure that
is attached to or connected with another building that predates the
structure"; "a wing, room, etc., added to a building."
(107B) Attachment-"something ... that
is affixed or connected to something else"; "something attached
[joined; connected; bound)."
(107C) Annex-"(s]omething that is
attached, such as ... an addition to a building"; "a subsidiary
building or an addition to a building."
(107D) Appurtenance-"(s]omething that
belongs or is attached to something else"; "something subordinate to
another, more important thing; adjunct; accessory. "
(108) It seems clear from the foregoing
that any rooms, porches, decks and the like, that are attached in any way to
the "basic unit" are included within the definition of a mobile home.
(109) Thus, the area of any attached
structures must be counted when determining the square footage of a
"mobile home."
(110) The Town, however, would have us go
a step further to hold that the floor area of any freestanding structures
situated on the same lot as a mobile home must also be included when
determining whether a mobile home is exempt from taxation under Wis. Stat. §70.111 (19)(b).
(111) For support, it points to the fact
that some of the terms employed in the statutory definition of a mobile home are
broad enough to include unattached as well as attached structures (e.g.,
annexes, appurtenances).
(112) The Town also claims that the
Wisconsin Department of Revenue (DOR) Assessor's Manual supports this view.
(113) We reject the Town's proffered
interpretation that would place freestanding sheds, barns and garages within
the statutory definition of a "mobile home."
(114) Although some of the terms in the
statutory definition of a mobile home might, standing alone, be capable of
supporting such an interpretation, taken together, we believe the statutory
language plainly envisions only structures that are attached or affixed to the
"basic unit."
(115) Moreover, although we agree with
the Town that the DOR's assessment
manual may be relied upon as an authoritative aid in
interpreting Wisconsin's property taxation statutes, we do not read the manual
as advising assessors to include the area of freestanding structures when determining
whether a mobile home qualifies for exempt status under Wis. Stat. §70.111 (19)(b).
(116) The Town asserts that the manual
"instructs assessors to count all structures on a lot in determining the
square footage of mobile homes."
(117) However, such an instruction is not
to be found in the sections of the manual the Town cites.
(118) Rather, the manual recites that
Wis. Stat. §66.058(1)(
d) includes within the definition of a mobile home "any additions,
attachments, annexes, foundations and appurtenances," and advises that
"these items must be included in calculation of the square
footage."
(119) Assessor's Manual, at 15-22 (emphasis
added).
(120) The manual thus merely quotes the
statutory terms but does not endorse the Town's broad interpretation of them.
(121) To the contrary, the very next
sentence in the manual undermines the Town's assertion that the manual supports
its interpretation:"A unit and attachments greater than 400 square feet is not" an exempted mobile
home. S (Emphasis added.)
(122) Applying the foregoing to the one
representative mobile home that is supported entirely by its wheels, we
conclude that the mobile home was not exempt under Wis. Stat. §70.111(19)(b).
(123) The parties stipulated that this
mobile home consisted of a basic unit comprising 396
square feet, together with a screen room/porch "which is caulked to the
basic unit" and encompasses an additional 489
square feet, rendering the countable area well in excess of 400 square feet.
(124) Since this mobile home was not
exempt from personal property taxation, we, like the trial court, conclude that
the tax levied and collected by the Town was not an "unlawful tax"
under Wis. Stat. §§74.33(1) and 74.35.
(125) The owners do not dispute that,
whether taxed as realty or personalty, the valuation of a mobile home would be
the same, and hence, so would the tax levied upon it.
(126) See State ex reI. Keane v, Board
of Review, 99 Wis.2d 584,588,299 N.W.2d 638 (Ct.
App. 1980) ("For valuation purposes, it
makes no difference whether [property is termed] real or personal property ....
Valuation of both real and personal property for property tax purposes is based
upon fair market value." (citations omitted)); see also Wis. Const.
art. VIII, §1 ("The rule of taxation
shall be uniform .... ").
(127) The owners claim, however, that by
refusing to permit them to recover property taxes levied on mobile homes that
were incorrectly assessed as real property instead of as personal property, the
trial court, and now this court, violate their right to due process, usurp a
legislative function, and deny them equal protection of the laws.
(128) We disagree.
(129) The owners claim that since the
Town notified them only of a levy against their mobile homes as real property,
any owners whose homes were in fact personal property and tax exempt, were
denied proper notice and the opportunity to be heard.
(130) But the record shows just the
contrary.
(131) The claim that some of the mobile
homes should be ruled tax exempt under Wis. Stat. §70.111(19)(b) has been heard, both here and in the trial
court.
(132) Our conclusion, and that of the
trial court, that the tax on any mobile home that was improperly classified as
realty is not "unlawful" unless its owner can establish that it was
"exempt by law from taxation," also does not constitute the judicial
levying of a tax.
(133) We and the trial court are merely
performing a proper judicial function-the determination of whether an
"unlawful tax" has been levied by the Town.
(134) The owners' claimed violation of
equal protection is that "the court's ruling effectively deprives [them]
of an accurate property classification," and it "subjects [them] to
potentially incorrect property classifications with very real
consequences."
(135) But, except for some differences in
the timing and methods of collection of personal property taxes, as opposed to
real property taxes, the owners point to no harm that has befallen any of them,
with the possible exception that some "non-representative" owners may
be able to establish both that their homes should have been classified as
personal property, and that they meet the requirements under Wis. Stat.
§70.111(19)(b) for exemption.
(136) As to the twenty representative
owners, and any of the non-representative owners who cannot make these
showings, there is no claim that more tax was paid on non-exempt mobile homes
because they were deemed real property than if the Town had assessed them as
personal property.
(137) We thus reject the owners'
constitutional claims.
(138) They make some policy arguments as
well, however.
(139) The owners claim that because the
majority of them make their permanent homes outside the Town, and use their
mobile homes on a seasonal basis only, they "do not impose the burdens on
schools and municipal services that permanent residents do."
(140) The implication is that, as
seasonal residents, the owners should not be required to pay property taxes to
the Town.
(141) But, the treatment of these owners
is no different than that accorded the owners of vacation homes, cabins and
cottages in Wisconsin, who could make a similar argument.
(142) The owners also point to the importance
of the "recreation and tourism industries" to our state, and assert
that "the legislature has chosen a specific classification and exemption
scheme for recreational mobile home users."
(143) We agree, and our holding today
interprets and applies the legislature's intended classification and exemption
scheme-it does not eliminate it.
(144) If an owner wishes to avoid having
his or her "recreational mobile home" taxed as an improvement to real
estate, he or she may simply elect to locate it in a campground instead of on
owned land, or not connect it to utilities, or leave it wholly supported by its
wheels.
(145) And, to preserve eligibility for
exemption from personal property taxes, the owner need only ensure that it is
not attached to any structures whose area would cause the mobile home to exceed
the statutory size limitation of 400 square
feet.
(146) By doing so, the owner would thus
preserve the mobility and smallness of his or her mobile home, and the
consequent exemption from property taxes which the legislature intended when it
created a tax exemption for "recreational mobile homes."
(147) Finally, we must address the
disposition of the claims of the hundred or more "non-representative"
owners.
(148) The Town argues that under the
parties' stipulation, the non-representative owners were given the opportunity
after the trial court's initial decision to come forward and argue their
entitlement to exemption from property taxes for their mobile homes, but none
did so.
(149) This may be so, but we have
modified the conclusions reached by the trial court regarding what must be
shown to qualify a mobile home as exempt from personal property taxation.
(150) In particular, the trial court
apparently adopted the Town's view that the floor area of freestanding
structures on the owners' lots must be counted against the 400 square-foot limitation under Wis. Stat. §70.111(19)(b),
an interpretation which we have rejected.
(151) On remand, therefore, any
"non-representative" owner shall be given the opportunity to
establish facts qualifying his or her mobile home for assessment as personal
property under Wis. Stat. §70.043(2), and for the exemption under §70.111(19)(b),
as we have interpreted these provisions.
(152) For the reasons discussed above, we
reverse the appealed judgment in part, and we remand for further proceedings
consistent with this opinion with respect to the "non-representative"
owners.
(153) To recap, the mobile homes of all
owners whose "basic units" are not supported entirely by their wheels
were properly taxed by the Town as improvements to real estate.
(154) If the owner of any "nonrepresentative"
mobile home can establish on remand both that (1)
his or her basic unit rests wholly on its wheels, thus qualifying it as
personal property for purposes of taxation; and (2)
the total area of the basic unit, together with that of any structures attached
to it in any way, does not exceed 400 square
feet (and that it is used "primarily as temporary living quarters for
recreational, camping, travel or seasonal purposes," see Wis. Stat.
§ 70 .111 (19)(b));
the mobile home is exempt from tax and the Town levied and collected an
unlawful tax from that owner.
(155) We affirm the appealed judgment
insofar as it dismisses the claims of the "representative" owners, as
well as the claims of those "non-representative" owners who cannot
make the showings described in the preceding paragraph.
(156) Neither party shall be entitled to
costs in this appeal.
(157) See Wis. Stat. §809.25(1) (a)5.
By the Court. -Judgment affirmed in part; reversed in part and
cause remanded with directions.
Recommended for publication in the official reports.
No. 99-2466(D)
(158) DYKMAN, P.J.(dissenting).In a
nutshell, the majority has concluded that it does not like giving the
legislative exemption for certain mobile homes to everybody who qualifies, and
therefore gives it to nobody.
(159) While I agree in principle that
exemptions from taxation should be limited because they narrow the tax base, I
cannot join the majority opinion because I conclude that its opinion is a
legislative rather than a judicial act.
(160) I will explain this conclusion.
(161) In its budget bill for 1984, the legislature defined a "mobile
home" for property tax purposes.
(162) See 1983
Wis. Act 342.
(163) Because Wisconsin distinguishes
between real estate and personal property in some tax contexts, the new
definition explained when a mobile home was personal property and when it was
real estate.
(164) Wisconsin levies taxes on most real
estate and on some personal property.
(165) Mobile homes have some
characteristics of each.
(166) In many contexts, the difference is
not relevant, but because the legislature has exempted from taxation some
mobile homes that are personal property, the distinction is often important.
(167) Wisconsin Stat. §70.043 (1997-98)11
defines when a mobile home is personal property and when it is real estate:
(167A) A mobile home, as defined in s. 66.058(1)( d),
is an improvement to real property if it is connected to utilities and is set
upon a foundation upon land which is owned by the mobile home owner.
(167B) In this section, a mobile home is
"set upon a foundation" if it is off its wheels and is set upon some
other support.
(167C) A mobile home, as defined in s. 66.058 (1) (d),
is personal property if the land upon which it is located is not owned by the
mobile home owner or if the mobile home is not set upon a foundation or
connected to utilities.
(168) In 1991,
the legislature decided to exempt small qualifying mobile homes from personal
property taxation.
(169) See 1991
Wis. Act 269, §490m.
(170) But the exemption is not available
if the mobile home is realty.
(171) The exemption statute, Wis. Stat. §70.111(19)(b),
exempts: "Mobile homes, as defined in s. 66.058,
that are no larger than 400 square feet and
that are used primarily as temporary living quarters for recreational, camping,
travel or seasonal purposes."
(172) When it enacted Wis. Stat. §70.111(19)(b),
the legislature was aware of Wis. Stat. §70.043(1) and of Wis. Stat. §348.10(S)(c),
which requires that a mobile home must have at least thirty-five (35) pounds of tongue weight.
(173) Both statutes were in existence
when the legislature enacted 70.111(19)(b).
(174) Thus, the legislature knew that a
mobile home could not legally have all of its weight rest on its wheels.
(175) Moreover, an exempt mobile home
which carried all of its weight on its wheels would be ridiculous-it would
behave like a forty-foot-Iong teeter-totter.
(175) The majority's rationalization that
"an owner may preserve a unit's mobile character by simply leaving it on
its wheels and no other supports" may be true, but an owner who does so is
in for hair-raising experiences when getting up in the night to visit the
bathroom.
(176) I find it doubtful that the
legislature intended this.
(177) What the majority has concluded is
that no mobile home located on its owner's real estate can be exempted from
taxation unless the Owner disconnects the mobile home from its utilities.
(178) The majority reaches this
conclusion because it requires one hundred percent (100%)
of the mobile home's weight to be carried on its wheels before the exemption
applies.
(179)
But no such mobile home exists.
(180) Under Wis. Stat. §348.10(5)(c),
all mobile homes must have at least thirty-five pounds (35) of their weight rest on something other than their wheels,
and it is that thirty-five (35) pounds that
the majority uses to disqualify all 400
square-foot or less, landowner-occupied, utility-connected mobile homes from
personal property tax exempt status.
(181) The legislature must have intended
to exempt some mobile homes from personal property taxes when it enacted Wis.
Stat. §70.111(19)(b).
(182) The legislature was aware of Wis.
Stat. §70.043(1)
and the significance of the distinction between mobile homes that are personal
property and mobile homes that are real estate.
(183) Had the legislature wanted to tax
small utility-connected mobile homes located on their owners' real estate, it
could easily have done so in §70.111(19).
(184) But it did not.
(185) The only rational explanation of
the exemption is that it applies to all small qualifying mobile homes located
on their owners' real estate.
(186) There is nothing in Wis. Stat. § 70 .111(19)(b)
suggesting an exemption carefully crafted so as to apply to no one who owned
the property upon which his or her utility-connected mobile home would be
placed.
(187) That concept just cannot be gleaned
from the words of §70.111(19)(b).
(188) On its face, §70.111(19)(b)
applies to mobile homes placed upon their owners' real estate.
(189) It defies common sense to conclude
that the legislature had a secret wish to deny exemption to all mobile homes if
they were connected to utilities and located on their owners' land.
(190) But that is what the majority
opinion accomplishes.
(191) The legislature is also presumed to
use words of the English language in their normal and ordinary sense.
(192) See Wis. Stat. §990.01(1); State
v. Ehlenfeldt, 94 Wis. 2d 347,356,288 N.W.2d 786 (1980).
(193)
"Off its wheels" is not a difficult or ambiguous concept.
(194) Anyone who has changed a car tire
or watched a tire being changed is fully aware of the significance between the
tire touching or not touching the ground.
(195) If the tire remains touching the
ground, it cannot be changed.
(196) If there is a space between the
tire and the ground, the vehicle is off that wheel.
(197) If all four tires do not touch the
ground, the vehicle is off its wheels.
(198) If they touch, it is on its wheels.
(199) To interpret the phrase "off
its wheels" as the majority has done to mean "on its wheels"
just does not make sense.
(200) Under this definition, every mobile
home or trailer traveling on our highways is doing so "off its
wheels."
(201) "Off its wheels" is a
concept easily determined by assessors.
(202) All they have to do is bend down
and look.
(203) If there is space between a mobile
home's tires and the ground, it is "Off its wheels".
(204) If there is not, then it is not
"Off its wheels".
(205)
Interpreting the statute as written will cause no hardship for assessors.
(206) The majority explains its decision
by noting: To argue that mobile homes such as most of those described in this
record, which not only rest upon blocks or jacks, but also have extensive
additions and attachments on permanent footings, remain "mobile" in
character because the owners have chosen to leave wheels under them, defies the
purpose of the legislative distinction and, as the Town argues, provides opportunities
for manipulation of the property taxation system.
(207) I agree that exemptions from
taxation can alter people's behavior; that is true of all exemptions.
(208) People who want an exemption will
tailor their actions to fit the exemption.
(209 Many people seek tax advice on how to take advantage of the income
tax code's provisions.
(210) This is not illegal, immoral, or
unethical.
(211) The majority views a qualifying
mobile home as a "manipulation of the property taxation system."
(212) That it may be, but the legislature
has made the policy decision that the mobile homes which distress the majority
are still mobile homes, and still exempt from personal property taxation.
(213) Wisconsin Stat. §66.058(1)(d)
describes a mobile home as the vehicle itself "and includes any additions,
attachments, annexes, foundations and appurtenances."
(214) I see no reason for a court to
adopt a rationalization that tax exemptions are not available to those who
actively seek them, because that constitutes "manipulation."
(215)
I would read the words of the statutes involved for what they say.
(216)
Their language is neither complicated nor technical.
(217)
If that language results in an exemption from taxation, so be it.
(218) If the legislature feels that a
different policy regarding small mobile home taxation is appropriate, it can
easily adopt that new policy.
(219) I probably agree with the
majority's view that an exemption for small, landowner occupied,
utility-connected mobile homes is inappropriate public policy.
(220) But I am unwilling to judicially
repeal the statute granting the exemption, even in part.
(221) Therefore, I respectfully dissent.
(222) All references to the Wisconsin
Statutes are to the 1997-98 version unless otherwise noted.
(223) The weight of three units "is
completely off the units' wheels," and they are completely supported by
"stabilizers."
(224) One unit, however, has no
stabilizers under the basic unit, but it is caulked to a 489 square foot screen room and porch, which sits
on footings.
(225) The owners assert in their reply
brief that we cannot entertain the Town's argument that the trial court
incorrectly interpreted Wis. Stat. §70.043(1) because the Town did not cross-appeal that
portion of the court's decision.
(226) A respondent, however, may raise an
issue without filing a cross-appeal when all that is sought is the raising of
an error that, if corrected, would sustain the judgment.
(227)
Auric v. Continental Cas. Co., 111
Wis.2d 507,516,331 N.W.2d 325 (1983).
(228) In other words, a respondent is
always free to argue that the trial court "was right, although for the
wrong reason." ld. (citation omitted).
(229) For example, real estate taxes are
generally payable in two installments and become a lien on the real estate if
not paid.
(230) Personal property taxes are due in
a lump sum and are the personal obligation of the property owner.
(231) See RL. 83-20, at 4 ("The Committee believed that, under these
circumstances [connection to utilities, set upon a foundation, on land owned by
the mobile home owner] the mobile home is sufficiently permanent that it should
be taxed as is conventional housing.").
(232) The first definition for each term
is from Black's Law Dictionary (7th ed. 1999); the second is from The Random House
Dictionary of the English Language (2nd ed. 1987).
(233) See, e.g., TDS Realestate Inv.
Corp. v. City of Madison, 151
Wis.2d 530,540-41,445 N.W.2d 53 (Ct. App.1989).
(234) Further indication that the
Department of Revenue does not view freestanding structures as properly
includible when ascertaining the taxable status of a mobile home under Wis.
Stat. §70.111(19)(b)
is found in the following excerpt from a DOR publication entitled "A
Property Tax Guide for Mobile Home Owners": How should an assessor measure
my mobile home to determine if it qualifies for exemption?
(235) The assessor should calculate the
gross square footage rounded to the nearest square foot using the outside
length and width of the mobile home.
(236) The assessor should also include
the area of any additions and attachments to the mobile home.
(237) Only clearly attached additions and
attachments to the recreational mobile home are included in the calculation of
gross square footage.
(238) Examples of additions and
attachments would include attached decks, screen porches, and pop-out rooms.
(239) Assessors should not include free
standing structures in the mobile home area calculation.
(240) Assessors should assess garages,
sheds, and other free standing structures as real estate if the mobile home
owners own the land or as personal property if they do not own the land.
(241) The Town points out that only
"unlawful" taxes that are found to be "excessive" may be
recovered.
(242) Wis. Stat. §74.39 ("If ... the court determines that the amount of
taxes paid by the plaintiff is not excessive, judgment shall be entered for the
defendant.").
(243) The owners also rely on Marina
Fontana v. Village of Fontana-an-Geneva Lake, 111 Wis.2d 215, 330 N.W.2d 211 (1983) for the proposition that a taxing body may
not offset the underpayment of tax on one piece of property against taxes
overpaid on another, which they claim is the result of our and the trial
court's rulings.
(244)
The holding in Fontana is of no assistance to the owners, however.
(245) There, the village attempted to
avoid a recovery by a taxpayer of illegal property taxes levied on the
taxpayer's real estate by claiming that it had underpaid taxes legitimately due
on certain personal property located on the same premises.
(246) The supreme court interpreted
similarly worded predecessors to the statutes before us now and concluded that
such an offset was improper.
(247) Here, however, the dispute is over
only one object of taxation-the owners' mobile homes.
(248) The holding in Fontana does
not preclude the Town from arguing in defense of the taxes it levied on the
mobile homes that they would have been subject to an equal amount of tax if the
mobile homes had been classified as personal rather than real property.
(249) See Id. at 223-24; see
also Fifield v. Marinette County, 62
Wis. 532, 541,22 N.W. 705 (1885) (A taxpayer who challenges a tax as unlawful
must allege an equitable offer to pay taxes justly chargeable "to the
property ... on account of which he seeks relief.").
(250) The owner is, of course, still
liable for real estate taxes properly levied on the lot and all freestanding
structures which may be situated on it, but a refund is due for the taxes
levied on the exempt mobile home itself, including its attached structures.
(251) All references to the Wisconsin
Statutes are to the 1997-98 version unless otherwise noted.
(252) Wisconsin Stat. §348.10(5)(c)
provides:
(5) The load imposed upon trailers
or semi-trailers shall be distributed in a manner that will prevent side sway
under all conditions of operation:
(c) The load carried by any trailer~ semi-trailer or mobile home shall be so positioned that a weight of not less than 35 pounds is imposed at the center of the point of attachment to the towing vehicle when parked on a level surface.
© 2006,
State Bar of Wisconsin
P.O. Box 7158~
Madison WI 53707-7158.
Customer service, (800) 728-7788.