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Oregon Summer Home Owners Association v. Johnson

May 24, 1973

OREGON SUMMER HOME OWNERS ASSOCIATION ET AL, APPELLANTS,
v.
JOHNSON, RESPONDENTS



Appeal from Oregon Tax Court. Carlisle B. Roberts, Judge.

Henry L. Bauer, Portland, argued the cause for appellants. With him on the briefs were Barton C. Bobbitt and Bauer, Murphy, Bayless & Fundingsland, Portland.

Ted E. Barbera, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Lee Johnson, Attorney General, and Alfred B. Thomas, Assistant Attorney General, Salem.

Denecke, Justice. McAllister, Presiding Justice, and Holman, Howell and Bryson, Justices.

Denecke

The issue is the taxability of plaintiff summer homeowners' interests in land which is the property of the United States Government and administered by the Forest Service. Plaintiffs' interests are in the form of special-use permits to build recreational residences. The Tax Court held the interests taxable and the homeowners appeal. 5 OTR Adv Sh 68.

The taxing authorities are proceeding pursuant to ORS 307.060, which provides: "Real and personal property of the United States or any department or agency thereof held by any person under a lease or other interest or estate less than a fee simple, other than under a contract of sale, shall be assessed and

taxed * * *." The question is whether this statute authorizes the taxing authorities to tax plaintiffs' interests in the federal lands.*fn1

The parties agree that Sproul v. Gilbert, 226 Or 392, 359 P2d 543 (1961), is controlling. They disagree upon the application of the Sproul case to the present circumstances.

At issue in Sproul was the taxability of grazing "leases" entered into between the "lessees" and the United States pursuant to the Taylor Grazing Act. 43 USCA ยง 315m. We held the grazing "leases" were taxable; however, grazing "permits" were not. For our present purposes ORS 307.060 is in the same form now as it was when Sproul was decided.

We held, generally, in Sproul that the statute is designed to tax only possessory interests. 226 Or at 403, n 1. If the interest is less than possessory it is a license and not taxable. 226 Or at 403. Whether the person has a possessory interest depends upon whether the person has "sufficient control over the premises to warrant the label of possession." 226 Or at 406.

In Sproul the document by which plaintiff gained his interest was labeled "lease" and his payments termed "rentals." We were of the opinion that while the terminology is not controlling, it is somewhat persuasive. The interest was in a certain described area. The "lease" provided that no other person could use the described area for grazing; however, representatives of the United States, miners, prospectors, ...


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