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Volume 10 - Opinions of Counsel SBRPS No. 69 (rev.)

Opinions of Counsel index

School tax relief [STAR] exemption (residence requirement)(absence from residence due to ill health); Senior citizens exemption (residence and occupancy requirement) (absence from residence due to ill health) - Real Property Tax Law, §§ 425, 467:

Where an applicant for the senior citizens exemption or school tax relief [STAR] exemption is absent from his or her residence while receiving health-related care in a nursing home or residential health care facility, the statutory residency requirement may be satisfied. Residing in the home of a friend or relative does not satisfy that provision even if health care is provided. In such circumstance, the assessor must apply discretion in determining residency.

We have received a number of inquiries concerning eligibility for a senior citizens real property tax exemption (Real Property Tax Law, § 467) and an enhanced school tax relief [STAR] exemption (RPTL, § 425(4)) when an otherwise qualified applicant has been forced to move out of his or her home due to ill health. In some cases, the applicant now resides with family members; in other cases, the applicant has entered a residential care facility.

When section 467 was first enacted (L.1966, c.616), its statutory residency requirement was simply stated:

3. No exemption shall be granted:
(d) 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.

We construed this requirement in an early Opinion of Counsel in which we concluded:

The aged exemption authorized by section 467 of the Real Property Tax Law should not be denied to an otherwise qualified person merely because he is confined to an institution, hospital or nursing home; consideration should be given to the applicant’s intent to return to his home after his confinement, to the probability of his returning and to the use of his home during his absence (1 Op.Counsel SBEA No. 115).

In the course of that Opinion, we stated: “As is readily apparent, an assessor must use a great deal of discretion in confinement situations.” We closed: “A judgment must be made upon the particular facts and circumstances of the confinement in each case.”

Our opinion remained as stated until the adoption of chapter 440 of the Laws of 1985 which amended section 467(3)(d) to add the following proviso to the legal residency requirement:

provided that an owner who is absent while receiving health-related care as an inpatient of a residential health care facility, as defined in section [2801] of the public health law, shall be deemed to remain a legal resident and an occupant of the property while so confined and income accruing to that person shall be income only to the extent that it exceeds the amount paid by such owner, spouse or co-owner for care in the facility; and provided further, that during such confinement such property is not occupied by other than the spouse or co-owner of such owner.

In our opinion, the addition of this language eliminated the assessor’s discretion as to a senior citizen’s residency in nursing home-type confinement situations. {1}

As originally enacted (L.1997, c.389, pt.B, § 1), the residency requirement for the STAR exemption was akin to the pre-1985 residency requirement of section 467. Consequently, the original version of this opinion advised that, in situations where eligibility for section 467 was not also in issue, {2} in determining STAR eligibility where the applicant is absent from the home due to ill health, and is residing elsewhere, the assessor should apply his or her discretion (as discussed in 1 Op.Counsel SBEA No. 115).

However, STAR has been amended, effective for administration of the exemption beginning with the 2000-01 school year. New section 425(4)(c), as added by chapter 405 (pt.A, § 4) of the Laws of 1999, provides that, as with the senior citizens exemption, an owner’s confinement in a residential health care facility will not disqualify the property from receiving a STAR exemption, provided (again like § 467), the property is not occupied by anyone other than the spouse or co-owner of the property. (The income exclusion of § 467 does not apply to STAR.)

Section 2801(3) of the Public Health Law defines “residential health care facility” as a “nursing home or a facility providing health-related service.” “Health-related service” is defined as “service in a facility or facilities which provide or offer lodging, board and physical care including, but not limited to, the recording of health information, dietary supervision and supervised hygienic services incident to such service” (Public Health Law, § 2801(4)(b)). If the facility is other than a nursing home, the assessor must also determine if that facility offers “health-related service” satisfying this definition and therefore the statute’s residency requirement.

Where an applicant in ill health is absent from his or her home and is residing with a friend or relative, as opposed to a health care facility, the provisions of section 467(3)(d)(i) or 425(4)(c) are not satisfied. In such a case, the assessor must again use his or her judgment in determining the applicant’s legal residence. {3}

August 27, 1998
Revised October 12, 1999

{1}  This provision was slightly revised and denominated as section 467(3)(d)(i) when the provisions of section 467(3)(d)(ii) were added (L.1990, c.471).

{2}  This is because where an assessor determines that property is eligible for a senior citizens exemption, it is also legally entitled to receive the enhanced STAR exemption (RPTL, § 425(6)(c)).

{3}  In discussing the original residency requirement of section 467, we stated: “Which dwelling is his legal residence depends upon such facts as where he votes, the length of time spent in each place, the nature and amount of personal property in each place, and other conduct and behavior evidencing which he considers to be his permanent home” (2 Op.Counsel SBEA No. 57).