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Volume 10 - Opinions of Counsel SBRPS No. 49

Opinions of Counsel index

Veterans exemption; alternative veterans exemption (retention of eligible funds exemption) - Real Property Tax Law, §§ 458, 458-a:

If a veteran resides in a town which grants the alternative veterans exemption but in a county which does not, the veteran may receive the alternative exemption for town tax purposes and an eligible funds exemption for county tax purposes. If the county subsequently opts to grant the alternative exemption, the alternative exemption automatically applies for both taxing purposes.

Our opinion has been requested concerning the eligible funds and alternative veterans exemptions (Real Property Tax Law, §§ 458, 458-a, respectively). The requestor notes that it is her understanding that, if a veteran’s residence is located in a town which allows the alternative exemption but in a county which does not, that the veteran may receive the alternative exemption for town tax purposes while retaining the eligible funds exemption for county purposes. (Here, neither the town nor county has adopted the change in level option of the eligible funds exemption (RPTL, § 458(5)).) The question is what happens if and when the county subsequently opts to grant the alternative exemption.

Subdivision 6(b) of section 458 provides that “[i]n lieu of” receiving an exemption pursuant to that section, a qualified property owner may apply for an exemption pursuant to section 458-a. Our interpretation of that provision is that, as a general rule, if a veteran, who has been receiving an eligible funds exemption, wishes to apply for the alternative exemption, he “must exchange all of his eligible funds exemptions (i.e., Statewide) in order to receive an alternative veterans exemption on his residence” (8 Op.Counsel SBEA No. 12).

However, while exemption statutes are to be strictly construed, they are not to be so strictly construed as to defeat legislative intent (Symphony Space, Inc. v. Tishelman, 60 N.Y.2d 33, 453 N.E.2d 1094, 466 N.Y.S.2d 677 (1983)). Where, as in this example, a veteran’s town authorizes the alternative exemption but his or her county does not, we believe it is too strict a reading of section 458(6)(b) to conclude that the veteran must receive no exemption for county purposes in order to receive an alternative exemption for town purposes. Instead, we agree with the requestor that the veteran could receive a different exemption for town and county taxing purposes. {1}

Nevertheless, if the county subsequently opts to allow the alternative exemption (RPTL, § 458-a(4)), we believe that the veteran’s earlier application for that exemption, which originally resulted in an alternative exemption for town purposes only, solely because of the county option then in effect, now also applies automatically for county purposes. That is, if the alternative exemption had been available for both town and county purposes in the first instance, the veteran could not have chosen to apply for an alternative exemption for town purposes only. Similarly, he or she may not do so now. {2}

January 8, 1998

{1}  We would reach the same conclusion if the county and town exemption options were reversed or if village taxes were also in issue.

{2}  We note, however, that where a municipality adopts the provisions of section 458(5)(b), which permits veterans who once had an eligible funds exemption but who switched to the alternative exemption to switch back and receive the eligible funds exemption as magnified by the change in level of assessment factor, that a veteran could receive such magnified eligible funds exemption for that municipality’s taxing purposes while receiving an alternative exemption for another municipality’s taxing purposes. This is because section 458(5)(b), where it is adopted, applies “[n]otwithstanding the provisions of [§ 458(6)(b)]. . . .”

NOTE:  This Opinion does not mention school districts because when it was written, veterans exemptions did not apply to school district taxes.  However, a series of subsequent statutory amendments gave school districts the option to offer these exemptions (see, L.2013, c.518 [for the alternative veterans exemption]; L.2016, c.253 [for the cold war veterans exemption, RPTL, § 458-b, which did not exist when this Opinion was written]; and L.2017, c.376 [for the eligible funds veterans exemption]).  We believe the analysis set forth in this Opinion and in 8 Op. Counsel SBEA No. 12 may generally be extended to school districts that have opted to offer these exemptions, subject to the qualifications set forth in a Note to 8 Op. Counsel SBEA No. 12.