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Volume 5 - Opinions of Counsel SBEA No. 6

Opinions of Counsel index

Foreign governments exemption (consular residences) - Real Property Tax Law, § 418:

Real property owned by a Canadian consul, who is the career head of the consular post, and which is used as his residence, qualifies for exemption from general municipal taxation, but is liable for special assessments and special ad valorem levies. A residence belonging to his vice-consul, is not entitled to an exemption.

We have received an inquiry concerning the real property tax liability of property belonging to a foreign consul and vice-consul. It is stated that the Canadian Consul in a city and the vice-consul have each purchased homes in nearby towns. Each has received a bill for town and county taxes, and our opinion is requested as to their liability for such real property taxes.

We have previously stated that:

In New York, the general rule is that all real property is subject to taxation unless specifically exempted therefrom by law. While section 418 of the Real Property Tax Law provides an exemption from taxation of property owned by United Nations member countries held in the name of the ambassador or minister plenipotentiary to the United Nations, there is no statute granting an exemption to consulate property (3 Op.Counsel SBEA No. 104).

In Republic of Argentina v. City of New York, 25 N.Y.2d 252, 250 N.E.2d 698, 303 N.Y.S.2d 644, the Court of Appeals looked to the Vienna Convention on Consular Relations, which was then pending ratification by the United States Senate, and concluded that consular property used for “public” or “governmental” purposes was entitled to exemption.

It is our understanding that both the United States and Canada have ratified the aforementioned Vienna Convention on Consular Relations (21 U.S.T. 77, T.I.A.S. 6820). Thus, pursuant to subdivision 2 of Article 6 of the United States Constitution, the treaty is now “the supreme Law of the Land.” Subdivision 1 of Article 32 of this treaty provides that:

The consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.

The consul qualifies as the career head of a consular post. Therefore, he is not liable for general municipal taxation. However, his property is not exempt from special assessments and special ad valorem levies (1973, Op.Atty. Gen. 202) because they represent charges for specific services rendered.

Article 49 of the treaty grants an exemption from certain forms of taxation to consular officers, consular employees and members of their families forming part of their households. Specifically excluded (par. (b)) from this exemption are “dues or taxes on private immovable property situated in the territory of the receiving state, subject to the provisions of Article 32.” Since Article 32 (as discussed above) relates only to the career head of the consulate, therefore the vice-consul is liable for all property taxes on his home.

April 24, 1975

NOTE: The Vienna Convention on Consular Relations entered into force with respect to the United States of America on December 24, 1969.