Can Cumberland County put a car tax on vehicles owned by people who aren't in the military but live on Fort Bragg?

Plain-English summary

G.B. Johnson, the Cumberland County Attorney, asked whether the county could put an ad valorem (personal property) tax on cars owned by non-servicemembers who live on Fort Bragg. A 1987 AG opinion had concluded that the personal property of a nonresident non-servicemember spouse acquired tax situs in North Carolina and was taxable, but that earlier opinion had not specifically addressed property located on Fort Bragg.

Senior Deputy AG Reginald L. Watkins and Associate AG Kay Linn Miller could not give Cumberland County a definitive answer, because the answer depends on when the federal government acquired Fort Bragg and how, and the AG had not been able to nail down the specific dates. But the practical inference was that Fort Bragg is a federal enclave with exclusive federal jurisdiction (except for service of process), which means the county cannot tax personal property with tax situs on the base.

The opinion walked through the federal enclave doctrine carefully. The Jurisdiction Clause of the U.S. Constitution, U.S. Const. art. I, § 8, cl. 17, lets Congress "exercise exclusive Legislation in all Cases whatsoever" over places purchased with state consent for forts and similar facilities. Land acquired this way is a "federal enclave." A state cannot tax activities on a federal enclave unless the state expressly reserved that power when it gave consent. The implied immunity does not apply to land acquired some other way (federal reservation from the original public domain, purchase without state consent, or eminent domain), in which case the state retains its taxing power. Congress can also waive enclave immunity, as it did with the Buck Act (4 U.S.C. §§ 105-110, 1940), which exposes sales, use, and income tax activities on federal enclaves to state taxation. Ad valorem personal property taxes are not in that list.

Whether NC has ceded exclusive jurisdiction depends on three time windows:

Before January 24, 1907. Whether NC ceded jurisdiction depends on the specific manner of acquisition. A Fort Bragg staff member apparently took the position that N.C.G.S. § 104-7 alone transferred title, but the AG disagreed: that statute cedes jurisdiction, it does not transfer title. The AG could not resolve this window without specific historical acquisition records.

Between January 24, 1907 and February 1, 1940. In 1907 NC enacted what is now codified as N.C.G.S. § 104-7. By that statute, NC, in compliance with the Jurisdiction Clause, consented to federal acquisition of land within the state and ceded exclusive jurisdiction (except for service of civil and criminal process) over land so acquired. The AG noted, citing State v. Burrell, 256 N.C. 288 (1962), that NC cannot force the federal government to accept jurisdiction over an area. For land acquired before February 1, 1940 (the effective date of the federal statutory presumption now codified at 40 U.S.C. § 255), the federal government's acceptance of exclusive jurisdiction can be inferred without express acceptance. The Fourth Circuit's Markham v. United States, 215 F.2d 56 (4th Cir. 1954), confirmed that 40 U.S.C. § 255 has no retroactive effect on pre-1940 acquisitions.

If Fort Bragg was acquired in this window, NC had ceded all jurisdiction except service of process, and Cumberland County has no authority to tax personal property with situs on the base.

After February 1, 1940. For post-1940 acquisitions, the federal government must explicitly accept exclusive jurisdiction following the procedure in 40 U.S.C. § 255. Without that explicit acceptance, NC retains its territorial jurisdiction and could tax.

The AG could not say which window applied to which parts of Fort Bragg without title research. But the AG concluded that historical state and federal practice with Fort Bragg strongly suggests that the federal government acquired exclusive jurisdiction at some point, and therefore Cumberland County most likely cannot impose ad valorem taxes on personal property whose situs is on Fort Bragg.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The federal enclave doctrine itself has been refined in cases since 1993, including questions about partial retrocession (when the federal government returns some jurisdiction to the state). The provisions formerly at 40 U.S.C. § 255 have been recodified at 40 U.S.C. § 3112. The Servicemembers Civil Relief Act (formerly the Soldiers' and Sailors' Civil Relief Act) was substantially expanded in 2003 and amended later, including expansions for non-servicemember spouses under the Military Spouses Residency Relief Act of 2009 and subsequent amendments. Any current question about taxation of personal property on Fort Bragg or any NC military installation should consult current federal and state law, current title records for the specific tract in question, and counsel familiar with federal enclave taxation.

Common questions

Q: What is a "federal enclave"?
A: A piece of land within a state's borders over which the federal government has exclusive jurisdiction under Article I, Section 8, Clause 17 of the Constitution. Within an enclave, federal law generally controls and state law generally does not apply, except as Congress has authorized.

Q: Why does it matter when the federal government acquired the land?
A: Because federal law (now 40 U.S.C. § 3112) presumes federal jurisdiction was not accepted for post-1940 acquisitions unless the federal government expressly accepted it. Pre-1940 acquisitions can take exclusive federal jurisdiction without an express acceptance. So the date of acquisition is determinative of which presumption applies, and therefore whether the state retains taxing power.

Q: What is N.C.G.S. § 104-7?
A: Enacted in 1907, it is NC's general consent statute for federal acquisitions of land in the state. It says NC consents to such acquisitions and cedes jurisdiction (except for service of civil and criminal process) over land the federal government acquires. It does not transfer title and does not by itself create exclusive federal jurisdiction; the federal government must still accept jurisdiction (or, for pre-1940 acquisitions, that acceptance can be inferred).

Q: What is the Buck Act?
A: A 1940 federal statute (4 U.S.C. §§ 105-110) that waives federal enclave immunity for state and local sales taxes, use taxes, and income taxes on activities and persons within enclaves. It does not waive immunity for ad valorem property taxes, which is why the 1993 AG opinion concluded Cumberland County probably cannot tax non-servicemember cars on Fort Bragg.

Q: Could Cumberland County tax the same person's car if they kept it off Fort Bragg?
A: The 1987 AG opinion the 1993 opinion mentions said yes for non-servicemember spouses' personal property in NC generally. Tax situs is the key concept; if the property is regularly garaged on Fort Bragg, the situs is on the base and Cumberland County likely cannot tax. If the property is garaged off-base, situs follows.

Q: Does this apply to other NC military bases?
A: The same federal enclave analysis applies to Camp Lejeune, Cherry Point, Seymour Johnson AFB, Pope Field, and others. Each has its own acquisition history, so the answer is base-specific. The framework is the same; the result can differ.

Background and statutory framework

The federal enclave doctrine arises from a deliberate constitutional choice. The Framers wanted the federal government to have undisturbed jurisdiction over military and other strategic installations. The Jurisdiction Clause gave Congress the authority to negotiate that jurisdiction with the states. NC's 1907 consent statute (N.C.G.S. § 104-7) and the federal statute now at 40 U.S.C. § 3112 (formerly § 255) together set the procedural mechanics for any specific acquisition.

The historical practice at Fort Bragg matters because the Army has long treated the base as a federal enclave, NC has historically not collected taxes on personal property garaged on the base, and federal courts have repeatedly upheld federal exclusive jurisdiction on similar installations. The AG could not certify a definitive answer without title research, but the practical inference was clear: Cumberland County should treat Fort Bragg property as outside its taxing reach absent explicit evidence the federal government did not accept exclusive jurisdiction over the specific tract in question.

The opinion is also a useful primer on federal enclave taxation doctrine generally. The framework (Jurisdiction Clause, state consent, federal acceptance, Buck Act waivers, tax-situs analysis) applies to any state-federal taxation question on or near a federal installation.

Citations

• U.S. Const. art. I, § 8, cl. 17 (Jurisdiction Clause; exclusive federal jurisdiction over places purchased with state consent for forts and other federal buildings)
• N.C.G.S. § 104-7 (1907 NC consent statute; cedes jurisdiction except for service of process)
• 40 U.S.C. § 255 (now § 3112; presumption that federal jurisdiction not accepted post-1940 absent express acceptance)
• 4 U.S.C. §§ 105-110 (Buck Act of 1940; state may tax sales, use, and income on federal enclaves)
• Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930) (U.S. Supreme Court; federal enclave doctrine and territorial jurisdiction)
• State v. Burrell, 256 N.C. 288, 297, 123 S.E.2d 795, 801, cert. denied, 370 U.S. 961 (1962) (NC Supreme Court; state retains territorial jurisdiction until federal acceptance)
• Markham v. United States, 215 F.2d 56 (4th Cir. 1954), cert. denied, 348 U.S. 939 (1954) (Fourth Circuit; 40 U.S.C. § 255 not retroactive to pre-1940 acquisitions)

Source

• Landing page: https://ncdoj.gov/opinions/ad-valorem-tax-on-personal-property-of-non-service-members-located-on-fort-bragg/

Original opinion text

24 May 1993

G.B. Johnson
County Attorney
Cumberland County
Post Office Drawer 1829
Fayetteville, North Carolina 28302

Re: Advisory Opinion — Ad Valorem Tax on Personal Property of Non-service members Located on Fort Bragg.

Dear Mr. Johnson:

You have requested our opinion as to whether Cumberland County may impose ad valorem taxes upon vehicles owned by non-servicemembers and located on Fort Bragg. A 1987 Attorney General Opinion analyzed whether the ownership interest of a nonresident non-servicemember spouse in personal property is subject to ad valorem taxes. The opinion concluded that such personal property was not exempted by virtue of the Soldier and Sailors Civil Relief Act. As such, it acquired a tax situs in North Carolina and was subject to the ad valorem tax. The opinion did not address whether the above conclusion would be applicable if the personal property were located on Fort Bragg.

As the following discussion illustrates, the extent of Cumberland County's jurisdiction to tax the personal property situated on Fort Bragg depends upon the time and manner of acquisition of Fort Bragg by the federal government. Unfortunately, we have been unable to obtain specific information regarding the date of actual transfer of title and therefore cannot provide you with a definitive answer to your question. As a practical matter, however, we infer from how the State and the federal government have historically treated Fort Bragg that the federal government has in fact acquired exclusive jurisdiction over Fort Bragg, with the exception of service of process. It therefore appears that Cumberland County may not impose a tax upon personal property which has acquired a tax situs on Fort Bragg.

The Jurisdiction Clause of the United States Constitution grants authority to the federal government to accept and govern territories within the boundaries of a sovereign state. This Clause provides: "Congress shall have the power to exercise exclusive jurisdiction in all cases whatsoever … over all places purchased by the Consent of the Legislature of the States in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards and other needful buildings." U.S. Const. art. I, § 8, cl. 17. Lands acquired in such manner are commonly referred to as "federal enclaves." See generally J. HELLERSTEIN & W. HELLERSTEIN, STATE TAXATION, Vol. II, ¶ 22.05 (2d ed. 1993).

A state may not impose taxes on activities occurring within a federal enclave, absent retention of this power by the state. This implied constitutional grant of immunity from state taxation does not apply to territory acquired by means other than the Jurisdiction Clause. If the land were reserved from the original public domain, purchased without the consent of the state or acquired by eminent domain, it remains part of the state's "territory and within the operation of her laws, save that the latter cannot affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal." Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930). If the land were purchased without the consent of the state, the state retains the power to tax.

If the land were purchased with the consent of the state, the federal government enjoys immunity from state taxation to the extent the state failed to reserve such power. Congress has the authority, however, to modify, limit or waive immunity from state taxation through specific legislation. For example, by The Buck Act of 1940, 4 U.S.C. §§ 105-110, Congress specifically subjected activities and persons within areas of otherwise exclusive federal jurisdiction to state sales, use and income taxes.

Acquisition of Fort Bragg Prior to 24 January 1907

Assuming the United States acquired Fort Bragg prior to 24 January 1907, determining whether North Carolina has ceded exclusive jurisdiction to the United States would depend upon the manner of acquisition of Fort Bragg. Although a staff member from Fort Bragg maintains that Fort Bragg was acquired by the United States from North Carolina simply by virtue of the enactment of N.C.G.S. § 104-7, we cannot agree with this contention. As explained more fully below, this statute merely cedes jurisdiction to the federal government – it does not operate to transfer title.

Acquisition of Fort Bragg Between 24 January 1907 and 1 February 1940

In 1907 the North Carolina General Assembly enacted N.C.G.S. § 104-7. By this provision, North Carolina, in compliance with the Jurisdiction Clause of the United States Constitution, consented to the acquisition of land within the State by the United States and ceded exclusive jurisdiction, except for the service of civil and criminal processes, over land so acquired by the federal government.

Although N.C.G.S. § 104-7 cedes exclusive jurisdiction to the United States over the land acquired, the State of North Carolina lacks authority to compel the United States to accept jurisdiction over an area. State v. Burrell, 256 N.C. 288, 123 S.E.2d 795, cert. denied, 370 U.S. 961 (1962). "Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it should be conclusively presumed that no such jurisdiction has been accepted." 40 U.S.C. § 255. When the United States government has not accepted jurisdiction over the area ceded by N.C.G.S. § 104-7, "the State retain[s] its territorial jurisdiction over the area in question so far as its exercise involves no interference with the carrying out of the federal project." State v. Burrell, 256 N.C. at 297, 123 S.E.2d at 801. If the land were acquired prior to 1 February 1940, explicit acceptance of exclusive jurisdiction by the United States is not necessary as 40 U.S.C. § 255 has no retroactive effect. See Markham v. United States, 215 F.2d 56 (4th Cir. 1954), cert. denied, 348 U.S. 939 (1954).

If Fort Bragg were acquired by the United States after 24 January 1907 and prior to 1 February 1940, the effective date of the statutory presumption appearing in 40 U.S.C. § 255, then North Carolina has ceded all jurisdiction to the federal government, except for jurisdiction for the service of process. Thus the State of North Carolina and Cumberland County would have no jurisdiction to tax personal property which has acquired a tax situs on Fort Bragg.

Acquisition of Fort Bragg After 1 February 1940

If Fort Bragg were acquired by the United States after 1 February 1940, then North Carolina would be deemed to have ceded jurisdiction to tax to the federal government, provided that the federal government had expressly accepted exclusive jurisdiction. In other words, for the federal government to acquire land after the effective date of the statutory presumption, it must take specific steps as prescribed by 40 U.S.C. § 255.

We hope this proves helpful. If this office can be of further assistance, please feel free to call us at (919) 716-6400 or 733-3252.

Reginald L. Watkins
Senior Deputy Attorney General

Kay Linn Miller
Associate Attorney General