judgment affirmed on any basis supported by the record
How later courts described this case
- judgment affirmed on any basis supported by the record
Written by the judges who cited it.
The opinion
POOLE, Circuit Judge,
concurring:
I concur with the majority in affirming the judgment of the district court, but respectfully disagree with the holding that a soldier’s interest in the free quarters provided to him and his family by the Armed Services does not constitute a taxable possessory interest under California Revenue and Tax.Code § 107.
I believe that free housing provided to the military is a private benefit because it relieves them of the expense of paying for housing elsewhere. See United States v. County of Fresno, 429 U.S. 452, 465-466 , 97 S.Ct. 699, 706 , 50 L.Ed.2d 683 (1976). The soldier and his family have the same exclusive use of the quarters during their occupancy as do civilians, and the controls exercised by the Armed Services do not substantially diminish that use and enjoyment. Superior authority may indeed terminate the tenancy at will but until they do so, every element of possessory interest exists. The susceptibility to interference with possession does not eliminate the possessory interest but relates only to its valuation. E.g., Lucas v. County of Monterey, 65 Cal. App.3d 947, 955 , 135 Cal.Rptr. 707, 712-13 (1977); United States v. County of Fresno, 50 Cal.App.3d 633, 639 , 123 Cal.Rptr. 548, 551 (1975). Applying the four factors generally examined by California courts, I believe the soldier’s interest in his free quarters is possessory and therefore taxable insofar as § 107 is concerned.
Despite the above analysis, I agree that the attempted imposition of this tax contravenes the Supremacy Clause of the Constitution of the United States. Under federal authority, the housing provided to members of the military and their dependents is in direct service of important defense considerations. Military personnel pay neither rent nor income tax on the value of the housing. The state could not impose the tax as against the federal government because it has no power to do so. California, however, seeks to exact the charge from the servicemen to whom Congress has provided housing and other benefits in an effort to make military service attractive and competitive with business and industry. See Frontiero v. Richardson, 411 U.S. 677, 679-80 , 93 S.Ct. 1764, 1766-67 , 36 L.Ed.2d 583 (1972). The imposition of such a tax would constitute a clear interference with the federal statutory scheme for recruiting and quartering and therefore is constitutionally impermissible.
Accordingly, I concur in the majority’s affirmance of the district court’s decisions.