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The trial court had found the taxpayer's rights in realtors courses so circumscribed as to constitute a "mere license," but the Court of Appeal held that intermittent, concurrent use could be possessory so long as the holder had the right to exclude interfering uses. A trial court determination that federal grazing permits were not taxable was also overturned, although these were temporary, revocable, and exercised in conjunction with other permit holders. This holding was extended to annually renewed permits that were not issued until after the March 1 tax lien date in Dressler.
One of the most controversial decisions in this series ruled that a six-year contract conferring the exclusive right to offer television rental services to patients in a county hospital constituted a taxable possessory interest in the exempt hospital property. Although the hospital district exercised some control over the operation of the business, such as restrictions upon advertising, these limitations were again found to affect the value rather than the character of the taxpayer's interest.
The tenor of these cases was reflected in a 1981 decision which found that the right to install amusement machines at public airports constituted a possessory interest even though the taxpayer had no assurance that competitors would not be granted similar space. The court recognized the development of a "less demanding" application of the Kaiser tests and a "protax trend" in contemporary cases, and found it sufficient that the taxpayer's rights were "exclusive against the world, except for a few others who might acquire similar rights." This evolution from Kaiser's reference to "exclusive possession of the premises against the entire world, including the owner" to "exclusive against the world, except for a few others" signals an appropriate point for re-examination of the definition of a possessory interest.
Many critics have found the "less demanding" application of the Kaiser criteria in later cases far too expansive, arguing, for example, that a contract to provide rental televisions in a public hospital is "not a right of possession but merely a right to provide a service," or that grazing permits, being nonexclusive, cannot be possessory. This view opposes the taxation of such interests as the right to place amusement machines in an airport terminal:
The court says that [the taxpayer's] interest in the airport terminal differs from that enjoyed by a street artist on Berkeley's Telegraph Avenue, an interest not taxed as a possessory interest. But neither is an interest in land. . . . The distinction between these interests is therefore unclear. It would seem that under the court's reasoning not only should the Telegraph Avenue artists pay a possessory interest tax, but also owners of newspaper stands, flower stands, and taxi cabs, to name a few, should pay such a tax. No assessor appears to have gone so far, however.
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