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Volume 3 - Opinions of Counsel SBEA No. 59

Opinions of Counsel index

Aged exemption (income requirement) (separated husband and wife) - Real Property Tax Law, § 467:

For purposes of the aged exemption, a husband and wife must combine their incomes, even if the husband and wife are living apart or title to the property is in one spouse only.

Our opinion has been requested as to whether married persons who are separated and living apart must combine and report both their incomes for purposes of the exemption authorized by section 467 of the Real Property Tax Law, where sole title to the property is vested in one spouse.

Subdivision 3(a) of section 467 provides, in part, that no exemption shall be granted if for the income tax year immediately preceding the date of making application for exemption, the income of the owner exceeds the sum to be set by the granting municipality at a figure no less than $3,000 nor more than $6,000. Where title to the property is vested in either the husband or the wife, their combined income may not exceed such sum.

Accordingly, for purposes of section 467, the income of both husband and wife must be considered notwithstanding the fact that title to the property for which an exemption is sought is solely vested in one spouse, and that the parties may be separated and living apart. Unless the marital status is dissolved by divorce or annulment, the combined income of the husband and the wife must be considered. The provisions of section 467 are so clearly set forth that there may be no exercise of discretion in the matter.

December 27, 1973

NOTE: Construes law prior to L.1992, c.145, which allowed the income of only one spouse to be considered under certain circumstances. Note also that the maximum income limitation has been repeatedly increased since this Opinion was issued.