§ 77-105 — Tangible personal property, intangible personal property, defined

Nebraska § 77-105

• Jurisdiction: Nebraska
• Ch. 77: Revenue and Taxation

Text

The term tangible personal property includes all personal property possessing a physical existence, excluding money. The term tangible personal property also includes trade fixtures, which means machinery and equipment, regardless of the degree of attachment to real property, used directly in commercial, manufacturing, or processing activities conducted on real property, regardless of whether the real property is owned or leased, and all depreciable tangible personal property described in subsection (9) of section 77-202 used in the generation of electricity using wind, solar, biomass, or landfill gas as the fuel source. The term intangible personal property includes all other personal property, including money.

Legislative History

Source: Laws 1921, c. 133, art. I, § 4, p. 545; C.S.1922, § 5811; C.S.1929, § 77-104; Laws 1933, c. 156, § 2, p. 592; C.S.Supp.,1941, § 77-104; R.S.1943, § 77-105; Laws 1991, LB 829, § 6; Laws 2007, LB334, § 14; Laws 2010, LB1048, § 10; Laws 2011, LB360, § 1; Laws 2015, LB424, § 2. Annotations: In determining whether an item is a fixture or a trade fixture under a contract for the sale and purchase of real estate, the description of trade fixtures contained within Nebraska's revenue and taxation statutes may have some utility as persuasive authority, but the more sound approach is to look to the common law and the test developed thereunder. Griffith v. Drew's LLC, 290 Neb. 508, 860 N.W.2d 749 (2015). In classifying whether a trade fixture should be taxed as personal property, rather than a fixture that should be taxed as real property, where the parcel of land on which the fixture is located is used directly in commercial activities, it is irrelevant whether a taxpayer personally engages in the commercial activities on the land. Vandenberg v. Butler County Bd. of Equal., 281 Neb. 437, 796 N.W.2d 580 (2011). The three-part test for determining whether an item constitutes a fixture, requiring the court to look at (1) actual annexation to the realty, or something appurtenant thereto, (2) appropriation to use or purpose of that part of the realty with which it is connected, and (3) the intention of the party making the annexation to make the article a permanent accession to the freehold, does not apply to the determination of whether a trade fixture should be classified as a fixture and taxed as real property or a trade fixture and taxed as personal property. Vandenberg v. Butler County Bd. of Equal., 281 Neb. 437, 796 N.W.2d 580 (2011). Electricity is not tangible personal property for tax purposes. Omaha Pub. Power Dist. v. Nebraska Dept. of Revenue, 248 Neb. 518, 537 N.W.2d 312 (1995). Cited in discussion of taxability of intangible property of foreign corporation. International Harvester Co. v. County of Douglas, 146 Neb. 555, 20 N.W.2d 620 (1945). In view of change in legislative definition of intangible property, corporation is taxable where it has its principal office or place of business. Joyce Lumber Co. v. Anderson, 125 Neb. 886, 252 N.W. 394 (1934).