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Volume 11 - Opinions of Counsel SBRPS No. 125

Opinions of Counsel index

Agricultural assessment (agricultural production requirement) (hogs - scientific research) (fur bearing animals) - Agriculture and Markets Law, § 301; Real Property Tax Law, § 481:

Lands used for the raising and selling of hogs may qualify for an agricultural assessment regardless of the buyer’s use of the hogs for biomedical research.

Lands used for the raising of fur bearing animals for the sale of their pelts qualify for an agricultural assessment, but lands used for the raising of such animals as pets do not.

We have received an inquiry concerning the agricultural assessment program (Agriculture and Markets Law [AML], Article 25 AA; Real Property Tax Law, § 481). The assessor states that a program applicant raises hogs for biomedical research. The applicant also raises ferrets and rabbits for pets. The question is whether the applicant’s land used for such purposes qualifies for an agricultural assessment. The secondary question as to the hogs is, assuming that hogs produced for biomedical research constitute “livestock” for the purposes of the agricultural assessment program, whether the applicant must prove that the hogs were sold for a minimum average gross sales value satisfying the standard in AML, section 301(4).

Livestock includes “hogs” and “fur bearing animals” (AML, § 301(2)(e)). “Land used in agricultural production” located within or outside an agricultural district may qualify for an agricultural assessment (AML, §§ 305, 306) if it meets the statutory criteria. Such land is generally defined as “not less than seven acres . . . used as a single operation in the preceding two years for the production for sale of crops, livestock or livestock products of an average gross sales value of [$10,000] or more” (AML, § 301(4)).

Since hogs are statutorily defined as being livestock, the lands used to raise those hogs may qualify for an agricultural assessment if the applicant shows that the hogs were sold for an average gross sales value of at least $10,000 in the two years preceding the filing of the current application. In our opinion, the lands used for the hog operation may be eligible to receive an agricultural assessment notwithstanding the fact that the hogs were sold to a biomedical research facility. That is, the agricultural activity of raising and selling hogs, an animal that is statutorily defined as livestock by AML, section 301(2)(e), is not dependent on the end use of those hogs. However, in our opinion, such land would not be eligible to receive an agricultural assessment if the applicant retained ownership of the hogs while being paid by such a company to use the hogs for research experiments. {1}

AML, section 301(2)(e), does not explicitly mention ferrets or rabbits as “livestock,” but, as noted, does provide that livestock includes “fur bearing animals.”  We have been informally advised by the State Department of Agriculture and Markets that breeding certain animals, including ferrets and rabbits, for the commercial harvesting of their fur is a bona fide agricultural activity. Here, however, the applicant is breeding these animals for sale as pets, their fur bearing attribute being irrelevant. In our opinion, an applicant’s land used to raise animals, which are not statutorily defined livestock, as pets is not eligible to receive an agricultural assessment.

April 18, 2008

{1}  In 3 Op.Counsel SBEA No. 100, we opined that “[g]ross sales derived from the intermediate use of livestock, such as for scientific experimentation, would not qualify for purposes of [the agricultural assessment program].”  While not set forth in that opinion, we note that the program applicant therein was under contract with various chemical and drug companies to inject or apply various solutions to the applicant’s horses to determine their reaction. While we recognize that the court in Town of Southampton v. Equus Assoc., 201 A.D.2d 210, 615 N.Y.S.2d 714 (2d Dept., 1994) expressed some doubt as to our conclusion that breeding horses for toxicology purposes was not agricultural production, that was essentially dicta; the court’s actual holding was that horse breeding was a qualifying activity. In the absence of a direct judicial holding to the effect that moneys received for raising animals for on-farm experimentation (i.e., without sale) is an agricultural activity, we continue to adhere to our prior conclusion.