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Volume 10 - Opinions of Counsel SBRPS No. 32

Opinions of Counsel index

Senior citizens exemption (residence and occupancy requirement) (abandonment) - Real Property Tax Law, § 467:

For purposes of determining eligibility for the senior citizens exemption, “abandonment” is an actual physical departure from the marital residence by one spouse with the intention of not returning. While the filing of a joint income tax return by spouses would suggest that an abandonment has not occurred, it is but one factor to be considered by the assessor.

Our opinion has been requested regarding the senior citizens exemption (Real Property Tax Law, § 467). An applicant has indicated that she has been abandoned by her spouse, but she and her husband recently signed and filed a 1996 Federal Income Tax Form 1040 on which they indicate a filing status of “married filing joint return.” {1}  If the income of the applicant’s spouse is included, the applicant will not be eligible for the exemption; she may qualify if his income is excluded.

We assume from the information submitted that the wife is the sole owner of the property. Nevertheless, section 467(3)(a) provides, in part:

Where title is vested in either the husband or the wife, their combined income may not exceed such sum [i.e., the locally adopted income ceiling], except where the husband or wife, or ex-husband or ex-wife is absent from the property as provided in subparagraph (ii) of paragraph (d) of this subdivision, then only the income of the spouse or ex-spouse residing on the property shall be considered and may not exceed such sum.

Section 467(3)(b)(ii) provides that no exemption is to be allowed,

unless the real property is the legal residence of and is occupied in whole or in part by the owner or by all of the owners of the property: except where . . . (ii) the real property is owned by a husband and/or wife, or an ex-husband and/or an ex-wife, and either is absent from the residence due to divorce, legal separation or abandonment and all other provisions of this section are met. . . .

Thus, as amended (L.1992, c.145), subdivision three of section 467 now addresses situations involving property owned by estranged or former spouses. So long as the absentee spouse/owner is absent due to divorce, legal separation or abandonment, that person’s income and absence from the residence will not be considered in determining exemption eligibility.

The law, however, fails to provide a definition or a rule of interpretation for the term “abandonment.” Accordingly, until such time as a court of competent jurisdiction construes the term for purposes of the Real Property Tax Law, we must look elsewhere in the law for guidance.

Abandonment is recognized as one of the grounds for divorce or separation (Domestic Relations Law, §§ 170, 200). While there are three forms of abandonment, {2} the only form relevant for section 467 exemption purposes is an actual physical departure by the abandoning spouse, that is, an actual physical departure from the marital residence with the “intention of not returning” (Williams v. Williams, 130 N.Y. 193, 29 N.E. 98 (189Schine v. Schine1); , 31 N.Y.2d 113, 286 N.E.2d 449, 335 N.Y.S.2d 58 (1972), modifying 36 A.D.2d 300, 319 N.Y.S.2d 967 (1st Dept. 1971); 48 NY Jur 2d, Domestic Relations, § 2068).

Proof of intention not to return depends upon a variety of indications. One indication of such intention is the length of the absence, but length of absence, in and of itself, is not determinative. “Not every separation is an abandonment beyond annulment or recall. One must look to all the circumstances. Of these, time will commonly be the weightiest, yet not always so decisive that it cannot be neutralized by others . . .” (Mirizio v. Mirizio, 248 N.Y. 175, 181, 161 N.E. 461 (1928)). A one-year continuous voluntary absence, at the very least, could raise an inference that the departing spouse has permanently left the remaining spouse. {3}

Based upon judicial constructions of the term, it is quite evident that there is not one single documentary evidence that can conclusively prove abandonment. Unlike divorce or separation, which is usually evidenced by some sort of documentary decree or agreement, the proof of abandonment generally consists of the testimony of spouses and witnesses.

In light of the difficulty for the abandoned spouse to prove abandonment, a balance must be struck between the required level of proof and the potential risk of abuse of the exemption provision. Because of the difficulties in proving abandonment without taking testimony, and taking testimony by a local assessor is clearly not practical, secondary sources of documentary evidence (e.g., affidavits of spouses or their friends or relatives; property or business records evincing the separate residence of the absent spouse) should be allowed.

We defer to the Internal Revenue Service and the New York State Department of Taxation and Finance as to just who may file joint income tax returns. It appears, however, that married individuals may live apart and still file jointly (see, 26 USCS § 7703(b); 33 Am Jur 2d, Federal Taxation (1997) ¶¶ 1027, 1664; 47A C.J.S. Internal Revenue, § 306). While the filing of a joint income tax return seems inconsistent with an alleged abandonment, as such term is used in section 467, it is still only one factor that an assessor should consider in deciding whether the provisions of section 467(3)(d)(ii) apply. If, in fact, the parties are merely living apart, that is separated but not legally separated, the income and residency exclusions of section 467(3)(d)(ii) would not apply. Consensual separation is not abandonment (48 NY Jur 2d, Domestic Relations, §§ 2067, 2071).

April 17, 1997

{1}  The New York State Income Tax Form IT-201 similarly indicates a filing status of “married filing joint return.”

{2}  The other two, viz., the unjustifiable exclusion from the marital residence of one spouse by the other and constructive abandonment( see, Domestic Relations Law, § 170 (Practice Commentary C170:7, McKinney’s Consolidated Laws of New York, Annotated, Book 14 (1988)), are inapposite to the administration of RPTL, § 467.

{3}  Abandonment of at least one year’s duration is a ground for divorce (Domestic Relations Law, § 170(2)).