Tax Type
Local Taxes
Property Tax
Description
Real estate devoted to agricultural, horticultural, forest, or open-space use; Land Preservation
Topic
Basis of Tax
Local Power to Tax
Property Subject to Tax
Date Issued
12-02-1997
| The Honorable Robert F. McDonnell Member, House of Delegates |
You ask whether a landowner is liable for roll-back taxes on certain property that has qualified under a locality's special assessment for land preservation ordinance pursuant to Article 4, Chapter 32 of Title 58.1, §§ 58.1-3229 through 58.1-3244 of the Code of Virginia.
You relate that such property has been farmed for many decades and has thus qualified for the special assessment. You advise that in 1992, a tenant who had been farming the property ceased doing so. You further state that within a few months thereafter, a new tenant began farming the property once again. You assert that the property remained "idle' during the lapse between tenants and was not used for a more intensive purpose. You inquire, therefore, whether the property owner is liable for roll-back taxes for the five years preceding 1992 (the year in which the earlier tenant ceased farming).1
Section 58.1-3231 authorizes localities to adopt ordinances providing for the use value assessment of real property. To qualify for the special assessment, the land must be devoted to agricultural, horticultural, forest or open-space uses, as specified in § 58.1-3230. § 58.1-3237(C) provides that "[l]iability to the roll-back taxes shall attach when a change in use occurs.'
The purpose of the land use assessment statutes is to create a financial incentive to encourage the preservation and proper use of real estate devoted to agricultural, horticultural, forest and open-space uses by "ameliorat[ing] pressures which force the conversion of such real estate to more intensive uses and which are attributable in part to the assessment of such real estate at values incompatible' with the use and preservation for the desired purposes.2
A prior opinion of the Attorney General concludes that "roll-back taxes are imposed only when the actual use of the land changes to a nonqualifying use.'3 Consistent with the statutory purpose, change in the use of the property is the event that triggers roll-back tax liability.4 Thus, for example, building a residence on property that had qualified for the special assessment is a change in use resulting in roll-back tax liability.5 Similarly, use of pastureland as an airport for ultralight aircraft is a change in use that disqualifies property previously subject to special assessment.6
Whether the actual use of property has changed to a nonqualifying use is a factual determination to be made by the local commissioner of the revenue.7 I am unable to comment on any factual matters raised by your inquiry. The Office of the Attorney General historically has declined to render official opinions when the request involves a question of fact rather than one of law.8 Should a factual determination by the commissioner of the revenue reveal that the property in question has remained "idle' and no actual change in use of the property has occurred, it is my opinion that roll-back tax liability would not attach.
1 Generally, roll-back taxes are equal to the difference between the tax levied during the past five years under the land-use assessment statutes and the tax that would have been levied had the property not been subject to the special assessment. See §58.1-3237(B).
2 1984 Va. Acts ch. 675, at 1178, 1373 (quoting §58.1-3229, not set out in Code).
3 1982-1983 Op. Va. Att'y Gen. 551, 552. Compare 1987-1988 Op. Va. Att'y Gen. 599 (holding that for purposes of exemption from real estate taxation, property acquired by charitable organization and held for future charitable use is not exempt until it is put to exempt use).
4 1980-1981 Op. Va. Att'y Gen. 355, 357.
5 See id. at 356.
6 See 1983-1984 Op. Va. Att'y Gen. 367.
7 Section 58.1-3236; see also 1996 Op. Va. Att'y Gen. 207, 208.
8 1991 Op. Va. Att'y Gen. 122, 124, and prior opinions cited therein. The authority of this Office to issue official advisory opinions under §2.1-118 is limited to questions that are legal in nature. See Op. Va. Att'y Gen.: 1986-1987 at 1, 6; 1977-1978 at 31; see also 2 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 668 (1974).
Attorney General's Opinion