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Volume 4 - Opinions of Counsel SBEA No. 70

Opinions of Counsel index

Clergymen’s exemption (cantor) - Real Property Tax Law, § 460:

The partial exemption from real property taxation authorized for a “rabbi” under section 460 is not available to a cantor of the Jewish religion. Section 460 is clearly intended to benefit the clerical leader of a congregation and in the Jewish faith the clerical leader is the rabbi.

Our opinion has been requested as to whether the partial exemption from real property taxation authorized by section 460 of the Real Property Tax Law is available to a cantor in the Jewish religion. As a result of the recent U.S. Court of Appeals decision discussed below we have undertaken a full review of our prior opinions on this question.

Section 460 provides, in part, that:

Real property owned by a minister of the gospel, priest or rabbi of any denomination, an actual resident and inhabitant of this state, who is engaged in the work assigned to him by the church or denomination of which he is a member, . . . shall be exempt from taxation to the extent of fifteen hundred dollars.

In prior opinions we have concluded that the benefits of this statute are not available to a cantor. However, in light of a recent decision of the U.S. Court of Appeals for the eighth circuit, in which a specific income tax exclusion was held applicable to a cantor (Silverman v. Commissioner, 57 T.C. 727, aff’d, 40 LW 2669 (1972)), we have reviewed our prior opinions.

Prior to 1959, the predecessor statute of section 460 (Tax Law, § 4(10)) provided, in part, that:

The real property of a minister of the gospel or priest of any denomination being an actual resident and inhabitant of this state, who is engaged in work assigned to him by the church or denomination to which he belongs . . . [shall be exempt from taxation] but the total amount of such exemption shall not exceed fifteen hundred dollars. (Emphasis supplied)

When the Real Property Tax Law recodification was carried out in 1958, this predecessor statute was re-enacted as section 460 with substantially identical language, but with the addition of the word “rabbi” (L.1958, c.959). It is apparent that the predecessor language of the statute was open to the interpretation that would exclude a rabbi from the benefits of the statute, and certainly the recodifiers added the word “rabbi” in order to clarify the scope of this statute. However, while it seems clear that the 1958 amendment was intended to insure that Jewish clergy are included within the scope of the statute, it seems equally clear that the choice of the single word “rabbi” was intended to limit the extent of this inclusion. And as stated above, we have so held on several previous occasions.

The well publicized Silverman case cited above involved a cantor whose compensation for cantoral services included an annual parsonage allowance, a portion of which he sought to exclude from his gross income under the Internal Revenue Code, section 107, parsonage rental allowance available to a “minister of the gospel”. In affirming the Tax Court holding which allowed the cantor to claim an exclusion, the Court of Appeals stated, in part, that:

The Jewish religion is a lay religion. In this sense, a layman who is neither rabbi nor cantor may lead or conduct Jewish religious services. Judaism has no theologically required hierarchy having control, dominion, or jurisdiction over its sacerdotal functions and religious worship. Yet, many formally organized congregations . . . employ professional rabbis and cantors to conduct religious services. In the synagogue, there are equal pulpits for the cantor and the rabbi. Both the cantor and the rabbi wear similar ecclesiastical robes which distinguish them from the rest of the congregation. The interpretation of the Jewish law (the Law of the Talmud) is the only function reserved solely to the rabbi. . . .

The role of the cantor while officiating at services is to represent the congregation in prayer and to lead the congregation in the liturgy. The cantor expresses the prayers and longings of the congregation to God. He must have extensive knowledge of Jewish law and tradition and his excellence is judged by the sincerity of his expression of his congregants’ prayers. . . .

It would appear that [the taxpayer] provides ministerial services functionally equivalent to those performed in Christian ministry. . . .

Fundamental to this conclusion is the fact that the Jewish faith recognizes a dual ministry of both rabbi and cantor in the conduct of its religious worship. . . .

That Judaism is a lay religion is a fact which is well established {1}, and even though the relatively informal traditional training of rabbis has been substantially superseded by formal religious and secular education culminating in ordination {2}, it is apparent that it is valid to continue to distinguish Jewish clergy based upon both the lack of hierarchical clerical structure and the relationship between clergy and congregation. The role or “image” of the rabbi continues to be that of teacher and interpreter of the law {3}, and as such he is cast in a different relationship to his congregation than that of the Christian clergy (for which this statute was undoubtedly primarily drawn originally). Accordingly, we continue to take note of the nature of the Jewish religion and the status of the rabbi, and we perceive the amendment to section 460 as providing both an appropriate clarification and a necessary limitation on the scope of the statute.

In analyzing the issue at hand, it is necessary to slightly amplify the discussion of the nature of Judaism. The institution of the Jewish congregation is perhaps currently the primary manifestation of the unstructured and lay oriented nature of the religion. Any group of Jews may constitute themselves a congregation and every congregation is altogether autonomous, free to choose its rabbi and other functionaries and to determine policies large or small {4}. The voluntary nature of the entire association necessarily leads to a religious body which is based primarily on the individual conscience of each member.

The synagogue is the sanctuary where public worship is conducted both for sabbath purposes and for purposes of the various highly significant holy ceremonies which are observed throughout the Jewish Year {5}. Like the structure of the religion, the public worship of the congregation in the synagogue is basically a direct function of individual belief and expression. Thus, the service is not marked by a central sermon or ritual which is the responsibility of the officiating clergy as in Protestant and Roman Catholic churches {6}. Rather the service is marked by prayers and responsive readings and in some denominations {7} by music and singing {8}, and it is as the leader of the congregation, and its prayers and music, that the cantor primarily functions {9}.

The acknowledged importance of the Sabbath and ceremonial services and the central role of prayer, and in some cases music, in such services, makes clear the importance of the cantor in the religion. However, this important function is not unique to Judaism, and it is quite typical of other religions to find lay and semiclerical persons officiating at various points in the Sabbath of ceremonial service (e.g., lay leaders in Protestant churches and deacons and lay leaders in Roman Catholic churches).

The apparent meaning of the language of section 460, as well as the legislative history of the most recent amendment (as discussed above), make clear that the exemption is intended to be of benefit to the titular religious head of the congregation. This strict construction of the statute is perfectly consistent with the established principle that statutes exempting real property from taxation must be resolved in favor of taxation in cases where doubt exists as to the proper interpretation of the language (Lawrence-Smith School, Inc. v. City of New York, 280 N.Y. 805, 21 N.E.2d 693). The fact that, like the rabbi, the cantor is in effect called to his position by the congregation and that formal education and ordination has traditionally been unnecessary, does not place the cantor in the same clerical position as the rabbi. There is a clear and well established distinction between a rabbi and a cantor, and the fact that they both may attain their positions in a similar informal manner and that they both at times may share the same religious duties, neither eliminates the distinction nor creates the “dual ministry” referred to in the Silverman decision.

We further believe that the emphasis upon Judaism as a lay religion has been misconstrued to lead to the conclusion that the cantor must be considered as being within the scope of the statute. It is our opinion that the lay nature of the religion requires a contrary conclusion; that is, that the unstructured informality of the congregation and clergy makes it essential to limit the application of the exemption specifically to rabbis. To extend the application of the statute because of an ambiguity of formal title would be contrary to the understood distinction of structure and authority which has traditionally existed between the rabbi and cantor. And, certainly the extension of statutory application to the cantor would seem to be equally applicable to the analogous positions which also exist in other religions (such as those discussed above).

In summary then, we certainly acknowledge the somewhat unique structure of the Jewish congregation and clergy, and we believe that in light of this characteristic the last amendment to section 460 was both necessary and appropriate. However, while section 460 now clearly applies to real property owned by a rabbi, it is our opinion that it is equally clear that the section cannot be extended to apply to real property owned by a cantor. The fact that the cantor may have special training {10} and ability, and that such training and ability enhance the cantor’s role in the life of the congregation, does not elevate the cantor to the position of rabbi. The statute is clearly intended to benefit the clerical leader of the congregation, and in the Jewish faith the clerical leader is the rabbi, not the cantor.

December 3, 1973

{1}  STEINBERG, Milton, Basic Judaism, Harcourt, Brace and World, Inc., New York, 1947, pp. 150-152.
     NEWMAN, Louis I., The Jewish People, Faith and Life, Block Publishing Company, New York, 1965, p. 38.

{2}  STEINBERG, Milton, Basic Judaism, pp. 157-158.
     NEWMAN, Louis I., The Jewish People, Faith and Life, p. 83.
     WERBLOWSKY, R. J., Encyclopedia of Jewish Religion, “Rabbi”, Holt, Rinehart and Winston, 1966, p. 319.

{3}  STEINBERG, Milton, Basic Judaism, pp. 154-156.
     WERBLOWSKY, Encyclopedia of Jewish Religion, “Rabbi”, p. 319.

{4}  STEINBERG, Milton, Basic Judaism, p. 151.

{5}  STEINBERG, Milton, Basic Judaism, p. 150.
     NEWMAN, Louis I., The Jewish People, Faith and Life, pp. 140-150, 205-206.

{6}  STEINBERG, Milton, Basic Judaism, p. 156.
     NEWMAN, Louis I., The Jewish People, Faith and Life, pp. 94, 97, 149.

{7}  STEINBERG, Milton, Basic Judaism, pp. 152-153.
     NEWMAN, Louis I., The Jewish People, Faith and Life, pp. 80-84.

{8}  NEWMAN, Louis I., The Jewish People, Faith and Life, pp. 206-207.

{9}  NEWMAN, Louis I., The Jewish People, Faith and Life, pp. 97, 205-206, 208.
     WERBLOWSKY, R. J., Encyclopedia of Jewish Religion, “Cantor”, p. 79.

{10}  NEWMAN, Louis I., The Jewish People, Faith and Life, p. 206.