Opinion Number

Dear Mr. Stephens:

We received your request for an opinion regarding property which is owned by two or more persons in indivision. Specifically, you inquire if all of the owners must receive a tax bill and if property which is owned in indivision may qualify for use value.

Your inquiries must be addressed in light of Civil Code Article 797 which defines ownership in indivision. The article provides as follows:

Ownership of the same thing by two or more persons is ownership in indivision. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.

Civil Code Article 801 provides that the use and management of property held in indivision is determined by agreement of all co-owners. Thus, property which is owned in indivision must be treated as one piece of property unless the property is partitioned. A partition may be done by the consent of all co-owners or it may be done judicially.

We previously opined that property should be assessed in the name of the record owner or owners. Op. Atty. Gen. 97-71. The jurisprudence has recognized that an assessor does not have to search beyond the official records to ascertain ownership of a particular parcel of land. As such, it is our opinion that the property must be assessed to all of the record owners and all mailings regarding the assessment should be sent to all owners of record.

It is further our opinion that property which is owned in indivision may qualify for use value. Use value is defined as the highest value of bona fide agricultural, horticultural, timber, and marsh land when the land is used by a prudent agricultural, horticultural, timber, or marsh operator for the sole purpose of continuing the operation of the land as such. Use value is established without reference to any other market value or value to the public in general. La.R.S. 47:2301, et seq. The land must meet all of the requirements to qualify for use value as set forth in the statutes. Again, if the property is owned by two or more persons, the use and management of the property, unless there is an agreement to the contrary, must be determined by all co-owners.

If you have any questions or comments, please contact our office.

With kindest regards, I am,

Very truly yours,

RICHARD P. IEYOUB Attorney General

By: ________________________________ TINA VICARI GRANT Assistant Attorney General

RPI/TVG/dra

OPINION NUMBER 97-91

MARCH 25, 1997

Insurance — 54 LSA-R.S. 22:71; LSA-R.S. 22:801; LSA-C.C. Art. 13; LSA-R.S. 22:6; LSA-R.S. 22:5(9); LSA-R.S. 22:252; LSA-R.S. 22:168; LSA-R.S.22:84; LSA-R.S. 22:258; LSA-R.S. 22:806

Capital and surplus requirements for a life insurer actively engaged in business continuously during twenty years before conversion from an industrial insurer are controlled by LSA — R.S. 22:801(B) and not LSA-R.S. 22:71.

Barry W. Karns Deputy General Counsel Department of Insurance P.O. Box 94214 Baton Rouge, LA 70804-9214

Dear Mr. Wooden:

You have requested an opinion from the Attorney General relative to property assessments in successions matters. You present two issues for our determination:

1. To whom should the Parish Assessor assess real property where no succession or judgment of possession exists?

2. May the Parish Assessor use a probated will to transfer property of a non-resident testator to an heir who is also a non-resident of this State (e.g., residents of Texas)?

LSA-R.S. 47:1952(A) states:

"All property subject to taxation, including merchandise or stock in trade, shall be placed upon the assessment lists in the respective parishes or districts where situated. Assessments shall be made on the basis of the condition of things existing on the first day of January of each year; however, as to the ownership of immovable property subject to taxation, the assessor may note on the tax roll any transfer of such property which takes place after the first day of January but before the assessor files the tax roll with the tax collector as required in R.S. 47:1993, if practicable. If the assessor makes such note on the tax roles, the tax notice shall then be sent to such owner in lieu of the owner of the property as of January first."

In addressing your first query, this office has previously stated that "the assessor must assess taxes to the record owner without inquiring into any defects which may exist in his title, including the lack of a succession proceeding and/or judgment of possession." Op. Atty. Gen. No. 92-67. Therefore, the taxes are the burden of the real property's record owner.

In answer to your second question, an ancillary probate proceeding must be brought in Louisiana pursuant to La.C.C.P. Art. 3401 which states:

"When a nonresident dies leaving property situated in this state, a succession proceeding may be instituted in a court of competent jurisdiction in accordance with Article 2811.

Except as otherwise provided in this Title, the procedure in such a succession shall be the same as provided by the law for the succession of a Louisiana domiciliary."

La.C.C.P. 2811 mandates:

"A proceeding to open a succession shall be brought in the district court of the parish where the deceased was domiciled at the time of his death.

If the deceased was not domiciled in this state at the time of his death, his succession may be opened in the district court of any parish where:

(1) Immovable property of the deceased is situated; or,

(2)Movable property of the deceased is situated, if he owned no immovable property in this state at the time of his death."

As applied to the facts in your request, these provisions require that a Texas resident claiming ownership of immovable property located in this state via a probated will must institute probate proceedings in Louisiana. Since the testator was not domiciled in Louisiana at the time of his death, the claimant must bring the proceeding in the district court of the parish where the immovable property is situated.

I trust this sufficiently answers your question. Should you need any further assistance, please contact our office.

Very truly yours,

RICHARD P. IEYOUB Attorney General

By: ___________________________ ROBERT E. HARROUN, III Assistant Attorney General

RPI/Rob[3]/cla

OPINION NUMBER 92-67

RELEASED MAY 12, 1992

4 — ASSESSORS 128 — TAXATION — INHERITANCE, SUCCESSION, ESTATE, INCOME TAXES R.S. 47:1952(A)

Taxes must be assessed to the record owner without inquiring into defects which may exist in his title, including the lack of a succession proceeding and/or judgment of possession.

Mr. Daniel J. Broussard, Assessor Vermilion Parish Abbeville, Louisiana 70511-0098

Dear Mr. Dufreche:

This office is in receipt of your recent correspondence regarding the correct assessment of immovable property when a deceased person's heirs have conveyed property to a purchaser. Your question is prompted in this circumstance when only the Affidavit of Death and Heirship is found in the conveyance records and no judgment of possession has been filed.

This office has addressed this issue on more than one occasion. Our conclusion remains the same; the assessment should be made in the name of the purchaser of record.

In opinion dated March 25, 1960, this office concluded:

"Of course, assessments of property should be made according to the records of the Clerk of Court or Conveyance Records, and therefore when the owner of the property is known to have died, the assessment should be in the name of the estate of the deceased owner. However, under the facts presented by you, where children or forced heirs sell the property, we do not believe that it is incumbent upon you to require succession proceedings in order to make assessments, but in the absence of fraud or where you have reason to believe that these heirs are the actual heirs, it is our opinion that the assessment should be made in the name of the purchaser, or the last record owner as reflected by the Conveyance Books."

In Attorney General Opinion 92-67 this office determined that "the assessor must assess taxes to the record owner without inquiry into any defects which may exist in his title, including the lack of a succession proceeding and/or judgment of possession."

Note also the case of Palmer vs. Board of Assessors, 8 So.2d 487 (La. 1890) holding that assessors are not bound to look beyond recorded titles to property. We enclose Attorney General Opinions 00-185, 97-91, 96-428, 95-150, 92-67, and 91-262 all of which address similar questions to the instant matter.

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ____________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

OPINION NUMBER 00-185

June 8, 2000

4 ASSESSORS La.R.S. 47:2301, et seq

Assessors must assess property to all of the record owners of the property and all mailings regarding the assessment should be sent to all owners of record. Property which is owned in indivision may qualify for use value provided it meets all of the requirements outlined in the statutes.

Mr. Jimmy Stephens, CLA Assessor, Desoto Parish P.O. Box 511 Mansfield, LA 71052

Dear Mr. Karns:

You have inquired whether the capital and surplus requirement for a life insurance company is $300,000.00 under LRS-R.S. 22:71 or $100,000.00 under LSA-R.S. 22:801 (B) with respect to the following fact situation:

A company is granted a Certificate of Authority as an industrial insurer in the 1940's. In 1976 the company converts from being an industrial insurer to an ordinary life insurer with greater insuring power. It is assumed, that the capital required by the laws, in effect on the date of its charter, is $100,000.00.

LSA-R.S. 22:71 concerns capital requirements and subpart A. of this statute states, "Domestic stock insurers who apply for a certificate of authority prior to September 1, 1989, may transact the following kinds of insurance in this state upon qualifying therefor and by having paid-in capital and minimum surplus represented by assets as follows. . ." This statute then lists the paid-in capital and minimum surplus requirements for each of the various kinds of insurance: life, health and accident, vehicle physical damage, etc. Paid-in capital and minimum surplus totals $300,000.00 on this listing for a life insurance company.

By contrast, LSA-R.S. 22:801 entitled "Conversion requirements" provides the following:

A. After the effective date of this Section, no domestic life insurer may convert to a type of insurer having greater insuring power without meeting the full capital, surplus, and deposit requirements of the type insurer to which it desires to convert.

B. Any life company with annual premium income of two hundred thousand dollars or greater, excluding credit life, that has been actively engaged in business continuously during the past twenty or more years may convert to a type of insurer having greater insuring power according to the law in effect of the date of its charter.

Initial guidance for statutory interpretation in this circumstance may be found from the Louisiana Supreme Court in New Orleans Rosenbush ClaimsService, Inc. v. City of New Orleans 653 So.2d 538, 546 (La. 1995) citingBunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1st Cir. 1984) which stated, "Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions."

Moreover, per the Civil Code, "Laws on the same subject matter must be interpreted in reference to each other." LSA-C.C. Art. 13. The court inCity of Opelousas v. Waterbury 674 So.2d 1128, 1133 (La.App. 3 Cir 1996) repeated Civil Code Art. 13 verbatim. Immediately following this, the court stated, "This article makes it the duty of courts to harmonize and reconcile statutes if possible . . . where two statutes deal with the same subject matter and cannot be harmonized, the one which specifically addresses the matter at issue must prevail." Furthermore, an examination of statutes relating to our given fact situation reveal that LSA-R.S. 22:71
concerns all kinds of insurance where "kinds1" are life, health and accident, vehicle physical damage, title etc. By contrast, LSA-R.S. 22:801
only concerns "Conversion requirements." The given fact situation involved a conversion and a life company. Using the above language, this latter statute would be the one that, "specifically addresses the matter at issue." Accordingly, it would appear the capital and surplus requirements of LSA-R.S. 22:801 (B.) would control.

Furthermore, where there is no clear indication of legislative intent to repeal, a specific statute will not be repealed by a general one, regardless of the priority of enactment. Green v. Louisiana UnderwritersInsurance Company 571 So.2d 610, 616 (La. 1990). The Court in Green
citing Smith v. Trosclair, 321 So.2d 514 (La. 1975) further stated repeal by implication is not favored and is justified only when two statutes are irreconcilable. In this instance we have seen no legislative intent to repeal. In fact, LSA-R.S. 22:801 (B) is the most recent legislative enactment (Acts 1975, No. 575 as compared to Acts 1966, No. 234) between the two statutes.

A specific application of LSA-R.S. 22:801 (B.) to the given fact situation will now be made for clarity. Subpart B. refers to "Any life company . . . that has been actively engaged in business continuously during the past twenty or more years may convert to a type of insurer having greater insuring power according to the law in effect on the date of its charter." We are given that the company in question was an industrial insurance company actively engaged in business since the 1940's that converted to an ordinary life company in 1976. The definition of a "Life Insurer" under LSA-R.S. 22:5 (9) shall mean, "all insurers issuing life insurance contracts, including industrial and serviceinsurers. (Underlining added.) Accordingly, an industrial insurance company is a life insurer and would come under the purview of this statute. Moreover, this company converted to a type of insurer "having greater insuring power" when it converted from industrial insurance to ordinary life. Industrial insurance is limited by definition under LSA-R.S. 22:252 (A)(1) to an aggregate value of $1,250.00 in death benefits.2

Since making your initial request you have verbally inquired, "Whether the change from a industrial insurer to a ordinary insurer is truly a "conversion" as contemplated by the insurance code?" First of all, there is clearly a difference contemplated in the insurance code between industrial insurers and ordinary insurers as evidenced by a code section that concerns standard nonforfeiture law for life insurance, LSA-R.S.22:168. Subparagraphs (A)(1)(b) and (d) of this section distinguish industrial and ordinary insurers by referring to different premium payment periods for the two types of insurers. Furthermore, as we previously stated, LSA-R.S. 22:5 (9) defines "life insurers" to include industrial insurers. In short, industrial and ordinary are two types of life insurance. Further insight to answer your question can be gained by reading the following code sections as they interrelate to each other: LSA-R.S. 22:84, LSA-R.S. 22:258 and LSA-R.S. 22:801.

LSA-R.S. 22:84 "Existing insurers: capital requirements and powers" is an insurance code section that provides for any domestic stock insurer incorporated prior to 12:00 noon of October 1, 1948 to continue its capital requirement in the amount named in its articles of incorporation. In the event any such insurer desires to enlarge its insuring powers to incorporate additional kinds of insurance not included in its articles of incorporation as of 12:00 noon of October 1, 1948 then the capital of such insurer must be increased to meet the full requirements of the insurance code. However, LSA-R.S. 22:84 (C) makes it specific that this Section shall not apply to industrial insurers within the terms of LSA-R.S. 22:258. This latter Section (22:258) "Powers of existing industrial insurers" is specific as to industrial insurers and revolves around the same specified time, 12:00 noon of October 1, 1948. Specifically, Section 258 concerns industrial insurers already organized and qualified under the industrial laws of this state as of twelve o'clock noon of October 1, 1948.

LSA-R.S. 22:258 is one long paragraph comprised of a mere three sentences and by all measures very difficult to read.3 However, in essence it provides that an industrial insurer, that only wants to write policies capped at $1,250.00, can continue to do so without the need to increase its capital or deposit requirements. If an industrial insurer wants to increase its policy writing cap from $1,250.00 to $2,500.00 then it needs to either convert to an ordinary insurer, or if it does not convert it must increase its capital4, surplus and deposit requirements to that of an ordinary insurer and make an appropriate amendment to its charter5. This section (22:258) really only impacts 22:84 in that, from the legislative viewpoint, industrial insurers are to be treated differently in terms of capital requirements. However, more significantly to answer your recent inquiry on conversion, R.S. 22:258 does use language that the change from industrial insurer to ordinary insurer is a "conversion". The beginning of the third sentence states, "No industrial insurer . . . . can acquire such authority except by conversion to another type insurer. . . . without conversion to an ordinary insurer. . . ."

The conclusion that a change from industrial to ordinary insurer is a "conversion" further helps us to interpret R.S. 22:801 (B). This section provides that any life company (an industrial insurer is a life company)may convert to a type of insurer having greater insuring power according to the laws in effect on the date of its charter. When an industrial insurer converts to a ordinary insurer it obtains "greater insuring power" as it is no longer subject to the $1,250.00 or $2,500.00 caps under LSA-R.S. 22:252 and LSA-R.S. 22:258. Accordingly, this is further support for legislative intent for R.S. 22:801 (B) to apply to the given fact situation.

Furthermore, "conversion" is also addressed in one other insurance code section, LSA-R.S. 22:806. This Section states, "No domestic insurer may convert from a stock to a mutual, or from a mutual to a stock insurer, or from any type insurer to any other type insurer, except as provided in R.S. 22:801 unless a plan of conversion is submitted to and approved by the commissioner of insurance." This statute clearly contemplates that "conversion" is not restricted to insurers converting from stock to mutual or vice versa but also from any type insurer to an other type insurer. Unfortunately, "type insurer" is not a defined term in the insurance code, but is used very broadly.

In conclusion, it would appear that the capital and surplus requirements of LSA-R.S. 22:801 (B) would control.

We hope you find this responsive to your questions.

Sincerely,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: ________________________________ J. Bradley Overton Assistant Attorney General

1 Kinds of insurance are further defined by LSA-R.S. 22:6.

2 LSA-R.S. 22:252 (B)(1) and LSA-R.S. 22:258 provide for industrial insurance on a single life in an amount not to exceed $2,500.00 if minimum capital, surplus and deposit requirements are met along with other conditions.

3 LSA-R.S. 22:258 Powers of existing industrial insurers: Industrial insurers already organized and qualified under the industrial laws of this state as of twelve o'clock noon of October 1, 1948, shall continue to have the same underwriting powers they had as of that date without the necessity of meeting the increased capital or deposit requirements of this code. All policies issued subsequent to twelve o'clock noon of October 1, 1948, by such insurers must conform to the provisions of this code, except as to the amount of insurance which may be written on a single life. No industrial insurer, not authorized to write policies in excess of one thousand two hundred fifty dollars as of twelve o'clock noon of October 1, 1948, can acquire such authority except by conversion to another type insurer, provided, however, that when any domestic industrial insurer, not so previously authorized, shall meet the minimum capital, surplus and deposit requirements, if a stock company, or the minimum initial surplus and deposit requirements, if a mutual company, required by this code of an ordinary insurer, it may, after appropriate charter amendment and without conversion to an ordinary insurer, or after conversion, issue industrial insurance on a single life in an amount not to exceed two thousand five hundred dollars exclusive of multiple indemnity, subject to all other provisions of this part applicable to industrial insurers except as to amount.

4 LSA-R.S. 22:258 only sets out a minimum capital requirement for a stock company and not a mutual company.

5 Further verification for this interpretation is that it appears to be consistent with the policy limit restriction set out in LSA-R.S. 22:252
(A) and (B). Moreover, LSA-R.S. 22:252 (C) provides the limits shall be increased to the underwriting limits provides in R.S. 22:258 for those insurers who are entitled to increased underwriting powers under its provisions.

OPINION NUMBER 96-428

October 23, 1996

4 Assessors

The assessor must assess property in the name of the record owner and the owner need the record owner of possession from the vendor heirs.

Mr. Gary A. Dimas, CLDA Cameron Chief Deputy Assessor P.O. Box Drawer U Cameron. LA 70631

Dear Mr. Dimas:

This office is in receipt of your request for an opinion of the Attorney General in regard to transfer of property involved in a succession. You ask if the assessor is allowed to transfer property based upon an Affidavit of Heirship where heirs, who cannot afford to open a succession, sell the subject property with only the Affidavit of Death and Heirship and no judgment of possession.

A similar question was presented in Atty. Gen. Op. No. 95-150 asking, "To whom should the Parish Assessor assess real property where no succession or judgment of possession exists?"

Therein it was concluded that the taxes are the burden of the real property's record owner, quoting Atty. Gen. Op. No. 92-67 that "the assessor must assess taxes to the record owner without inquiring into any defects which may exist in his title, including the lack of a succession proceeding and/or judgment of possession."

We note that Atty. Gen. Op. No. 92-67 referred to Palmer v. Board ofAssessors, 8 So.2d 487 (La. 1890) as holding that the assessors are not bound to look beyond recorded titles to property, and also to earlier opinions of this office which concluded it was not incumbent upon the tax assessor to require succession proceedings in order to make an assessment, but the assessment should be made in the name of the purchaser of record.

We hope this sufficiently answers your inquiry.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: ___________________________ BARBARA B. RUTLEDGE Assistant Attorney General

BBR

OPINION NUMBER 95-150

MAY 26, 1995

No. 4 Assessor's 114-A-1 Successions R.S. 47:1952(A)

Assessor must assess taxes to the record owner without inquiring into any defects which may exist in his title, including the lack of a succession proceeding and/or judgment of possession. Non-resident claiming ownership of immovable property located in this state pursuant to a probated will must bring an ancillary probate proceeding in Louisiana.

Mr. Michael Wooden, CLA Assessor of Morehouse Parish Post Office Box 1177 Bastrop, Louisiana 71221-1177

Dear Mr. Broussard:

You have requested an opinion of this office with regard to whether, in the absence of a succession proceeding and/or a judgment of possession, taxes should be assessed to a vendee, the present record owner, who acquires property from the purported heirs of a deceased person. Your specific inquiry concerns a cash deed from the purported heirs of Lucy Domingue to Al Mendoza, which is dated October 11, 1991, and bears a file date of October 17, 1991. As of January 1, 1992, Al Mendoza was the record owner.

LSA-R.S. 47:1952(A) states:

All property subject to taxation, including merchandise or stock in trade, shall be placed upon the assessment lists in the respective parishes or districts where situated. Assessments shall be made on the basis of the condition of things existing on the first day of January of each year; however, as to the ownership of immovable property subject to taxation, the assessor may note on the tax roll any transfer of such property which takes place after the 1st day of January but before the assessor files the tax roll with the tax collector as required by R.S. 47:1993, if practicable. If the assessor makes such note on the tax rolls, the tax notice shall then be sent to such owner in lieu of the owner of the property as of January first.

In the case of Palmer v. Board of Assessors, 8 So.2d 487 (La. 1890), the court held that assessors are not bound to look beyond recorded titles to property. Further, Atty. Gen. Op. dated 1928-1930, p. 9, states that the property must be assessed to the owner of record without regard to any defects which may exist or which are supposed to exist in his title. And Atty. Gen. Op. dated 1960, p. 370 indicates that, where forced heirs sold immovable property, it was not incumbent on the tax assessor of Webster Parish to require succession proceedings in order to make an assessment. In the absence of fraud or where the assessor has reason to believe that the purported heirs are not the actual heirs, the assessment should be made in the name of the purchaser of record.

Therefore, it is the opinion of this office that the assessor must assess taxes to the record owner without inquiring into any defects which may exist in his title, including the lack of a succession proceeding and/or judgment of possession. The fact that the succession of Lucy Domingue was never opened and that there may be other heirs with a claim to the property should not be considered, and the taxes on the property in question may properly be assessed to Al Mendoza, the record owner of the property on January 1, 1991.

Trusting this to be sufficient for your purposes, I am

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: NORMAN W. ERSHLER Assistant Attorney General

RPI/NWE:pb 0581l

OPINION NUMBER 91-262

RELEASED AUGUST 2, 1991

125 — TAXATION — Homestead exemption CONST 7.20

An heir who is otherwise qualified to a homestead exemption, may obtain the exemption before having a judgment of possession.

Mr. Erroll G. Williams, Assessor Third Municipal District 4E01 City Hall New Orleans, LA 70112

Dear Mr. Williams:

This office is in receipt of your request for an opinion of the Attorney General relative to homestead exemptions. You ask if an heir in a succession who resides in the property may claim a homestead exemption before obtaining a judgment of possession.

Under Article 7, Section 20 of the Constitution of 1974 a person is entitled to a homestead exemption on property that is "owned and occupied" by that person. The Louisiana Supreme Court in discussing seizing and ownership has held in Baten v. Taylor, 386 So.2d 333 (La. 1979), "Ownership, on the other hand, is transmitted by operation of law at the moment of death to heirs and legatees designated by the Code, regardless of whether they have seizin of a particular succession or whether they can ever have seizin. . . . For example, although a legatee under a particular title cannot acquire seizin, he has ownership of the thing bequeathed to him from the day of the testator's death." (Emphasis added.)

For a homestead exemption the constitutional requirement is for occupancy and ownership. While the title may not be recorded in an heir's name, under the law he has ownership from the moment of the testator's death. In Culligan Water Cond. Inc. v. Heirs of Watson,370 So.2d 129 (La.App. 1979), cert. denied., 373 So.2d 525, the court recognized that the interest of the deceased vested in her heirs at her death, and stated the title to property acquired by inheritance does not require recordation to be effective against third persons. The court quoted Jackson v. D'Aubin, 338 So.2d 575 (La. 1976), which stated, "The law of registry is inapplicable where the ownership of . . . immovable property. . . has been acquired by inheritance and title has become vested by operation of law".

However, while an heir has ownership and occupies the property, the question must be considered if he is the sole heir to the property. An heir who occupies property but is not the sole owner would not be entitled to the exemption as an owner indivision. Atty Gen. Op. Nos. 88-278, 80-337. Of course, in the Constitution an exception is made for the surviving spouse and minor children, specifying they are entitled to the homestead exemption.

Therefore, we find an heir who is otherwise qualified to a homestead exemption, may obtain the exemption before having a judgment of possession since his ownership commences from the moment of the testator's death. An affidavit establishing that the party is heir to the described property should suffice as evidence of the ownership.

We hope this sufficiently answers your question, but if we can be of further assistance, please do not hesitate to contact us.

Sincerely yours,

WILLIAM J. GUSTE, JR. Attorney General

BY: BARBARA B. RUTLEDGE Assistant Attorney General

BBR/svj