OPN Nov 04, Honorable Larry Pritchett Putnam County Property Appraiser Post Office Box 1920 Palatka, Florida

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1 OPN Nov 04, 1997 Honorable Larry Pritchett Putnam County Property Appraiser Post Office Box 1920 Palatka, Florida Re: Assessment, Agricultural Classification; Private Game Preserve Request to Revisit an Opinion Private Letter Ruling Dear Mr. Pritchett: Your letter of September 16, 1997, addressed to Mr. Kielbasa, has been forwarded to this office for a response. ISSUE You previously inquired by letter on July 12, 1996 whether white-tail deer confined on a private "game preserve" are "livestock" within the meaning of section (5), Florida Statutes. This statute provides that the raising of livestock is an "agricultural purpose," for which a reduced assessment solely on the basis of agricultural use may be made for the purpose of ad valorem taxation. The Department of Revenue sent you an opinion letter on this issue dated September 23, 1996, which concluded that it would be very difficult for you to make an informed factual determination that this land was being used for agricultural purposes. You now inquire whether a review of an Internal Revenue Service Private Letter Ruling would change our opinion of the above findings. We conclude that it would not. FACTS

2 The I.R.S. considered deer hunting and concluded in part that a taxpayer was "engaged in the business of farming for purposes of federal law, Treasury Regulation , provided it [was engaged] in these activities for profit." The ruling involved a taxpayer named Nimrod, Inc., which operated a deer hunting preserve. The ruling is Private Letter Ruling , dated October 17, You concur, based upon an article you forwarded, that the facts in your case are similar to those of Nimrod, Inc. The article is "Definition of farming includes raising deer for harvest by hunting," Fed. Taxes Weekly Alert, p. 189 (April 18, 1996). LAW / ANALYSIS Pursuant to federal law Private Letter Rulings and technical advice memoranda may not be used or cited as precedent. See Internal Revenue Code section 6110(j)(3). The Nimrod, Inc. case does not provide mandatory legal precedent, either for the I.R.S. to follow in making future findings or rulings under federal income tax laws, or for a county property appraiser in making factual or legal assessment determinations under Florida laws. At best, such rulings are considered by courts to be "persuasive." The Nimrod, Inc. case furthermore does not apply to your situation since it involves a different set of tax laws. The I.R.S. acknowledged in Nimrod, Inc. that deer are not ordinarily considered to be "more conventional livestock" such as horses or cattle, and are not "the usual type of stock found on most farms." Nimrod was decided under the guidelines of the Federal Income Tax Code and Treasury Regulations. Your case is different because it involves state property tax laws and is governed by the Florida Statutes. Many more activities can qualify for agricultural classifications under federal tax law than can qualify under Florida law. Under federal tax law, "farming" is more broadly defined as: "The cultivation of land or the raising or harvesting of any agricultural... commodity including the... management of animals." See Internal Revenue Code section 464(e)(1); see also Treas. Reg. section 1.263A-4T(c)(4)(i)(A).

3 Federal tax law does not clearly specify what type of animals must be managed in order to be engaged in "farming" for federal income tax purposes. Under federal law, the definition of "livestock" includes virtually any mammal held for breeding or sporting purposes. See Treas. Reg. section (a)(3). Florida property tax law defines "livestock" more narrowly. Under Florida law, "livestock" generally only refers to "farm animals" and "domestic animals." See Rule 12D-1.002(6), F.A.C. The following are some definitions of "domestic" animals: Such as are habituated to live in or about the habitations of men, or such as contribute to the support of a family. Tamed animals; e.g., horses, sheep, dogs. See Black's Law Dictionary. Any of various animals (as the horse or sheep) domesticated by man so as to live and breed in a tame condition. See Webster's. "Domestic animal" shall include any equine or bovine animal, goat, sheep, swine, domestic cat, dog, poultry, ostrich, emu, rhea, or other domesticated beast or bird. See section (10) Florida Statutes. Animals in general are divided into two classes, domestic or domitae naturae, and wild or ferae naturae. Domestic animals are those that are naturally tame and gentle, or that by long association with man have become thoroughly domesticated and reduced to such a state of subjection to his will that they no longer possess the disposition or inclination to escape. Wild animals are such as are of a wild nature or disposition and so must be reclaimed and made tame by art, industry, or education, or else must be kept in confinement to be brought within the immediate power of the owner. (Emphasis provided). See 2 Fla. Jur 2d Animals section 1. A wild animal is an animal which is not, and a domestic animal is an animal which is, by custom devoted to the service of humanity at the time and in the place in which

4 it is kept. See 4 Am Jur 2d Animals section 1. Deer are commonly referred to as "game" throughout the Game and Fresh Water Fish Commission rules. For instance: Game mammals: Deer, gray squirrel, rabbits, wild hogs in those areas where specified, and non-native species generally considered game such as elk, antelope and buffalo. See rule (36) F.A.C. Florida law thereby applies a different test for defining "livestock" than was used in Nimrod, Inc. As I am unaware of the complete factual circumstances surrounding your case, I have attached a copy of the Nimrod, Inc. ruling to assist in your decision. You should be aware that the Nimrod, Inc. case contained a unique set of facts, when combined, led to a particular outcome. Some of these facts included: -- Taxpayer hired a university worker as a genetic and nutritional consultant to assist with the project, and structured the venture as a research project. -- Taxpayer conducted seminars on whitetail deer hunting and management for people who paid money to attend. -- Taxpayer had responsibility and control over the genetic mix of the herd, the number of deer in the herd, the nutrition they receive, which deer were allowed to reproduce, and how long they were allowed to live. -- Taxpayer established a large quantity of genetically desirable deer that were managed in a way where each animal attained body weight and antler size far exceeding that occurring naturally among deer of the same species, thereby creating a broad base of opportunities for scientific research and wildlife professionals. -- Taxpayer managed the range and cultivated large tracts of land within the enclosure to yield and insure adequacy of forage in amount, type, and quality, for the animals.

5 -- Taxpayer maintained farm equipment and facilities including a barn, stable, equipment & tool sheds, feed bin facilities, feeding stations, tractors, trucks, plows, and planters. -- All deer within the subject state were deemed to be natural resources, which could not be owned by any entity. The only lawful way to harvest these animals in that state was by hunting. Slaughter was not permissible. There appears to be no pertinent case law that has considered "game" or "wild game" as livestock. The following Florida cases have previously discussed domestic animal classifications under section , Florida Statutes: St. Petersburg Kennel Club, Inc. v. Smith 662 So.2d 1270 (Fla. 2d DCA 1995) "Greyhound racing dogs" not considered to be "livestock"; Aitken v. Markham 595 So.2d 159 (Fla. 4th DCA 1992) "Dutch Warmblood horses" considered to be "livestock"; Op. Att'y Gen "Catfish" considered to be permissible "pisciculture." In order to determine whether there exists "bona fide agricultural purposes," a property appraiser is permitted by law to consider "other factors as may from time to time become applicable." See section , Florida Statutes. You may consider whether the income and expenses from use of the land are primarily related to agriculture or rather to a commercial hunting business. For instance, if revenue from the activity involved here, hunting and removal of deer carcasses, far exceeds typical income to the land from their value as a food product, this fact may indicate a non-agricultural purpose. If the income from hunting and deer gathering is greater than the typical income from a food and fiber farm operation, this would appear to indicate that the income is in fact for hunting or recreation activities and not a bona fide agricultural purpose. Thus, the necessary statutory requirement of use of the land for bona fide commercial agricultural purpose would not be met, even if deer were a form of livestock. Revenues from lodging, taxidermy, or the sale of hunting supplies may also indicate non-agricultural use. Expenses, such as those for transporting hunters to and from the airport, may further indicate nonagricultural use.

6 CONCLUSION A private letter ruling from the I.R.S. does not set a mandatory legal precedent which must be followed. The findings of law in the Nimrod, Inc. ruling were under different legal guidelines than those at hand. Federal income tax law construes "livestock" more liberally than Florida property tax law, and the instant case would thus be distinguished from it. Without further case law support, it appears that it would be very difficult for your previous conclusion to be changed based on the Nimrod, Inc. ruling alone. The Nimrod, Inc. ruling was decided before our original opinion letter and is not a new ruling, although it was not previously elaborated on. The ruling was also based on a unique set of facts and circumstances that may be different from those of your taxpayer. As you know, the question of whether land, owned by a nonprofit corporation under Chapter 617, F.S., is entitled to an agricultural classification and assessment is a mixed question of law and fact involving a determination which must be initially made by the property appraiser. Sections , F.S. set forth specific criteria which the property appraiser must consider in making the determination of whether a corporation is engaging in an agricultural purpose or activity. For the exemption to be granted under these sections, the property appraiser would need to find that the corporation is an exempt entity engaging in an exempt purpose. In my opinion, the general concepts, stated above, apply to a corporation not-for-profit under Chapter 617, F.S., maintaining vacant land for purposes described above. These facts would make it difficult for you as property appraiser to make an informed decision that the land is being used for an agricultural purpose. This response is not an official determination of the Department of Revenue. However, the response does represent the judgement of the writer based upon an analysis of current statutes, administrative rules, case law, and departmental procedures which are applicable to the facts and circumstances presented by

7 your request for information. Subsequent statutory or administrative rule changes or judicial interpretation of the statutes or rules may subject similar future transactions to different treatment than is expressed in this response. I hope you will find this information to be helpful in making your determination with respect to the application for classified use by the owners and operators of the subject game preserve. If you wish to discuss this matter or if I may be of some further service, please call me at (850) Very truly yours, George A. Dusoe, Esq. Tax Law Specialist Technical Assistance and Dispute Resolution Property Tax Unit GAD/me/30954/97K-197