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Volume 7 - Opinions of Counsel SBEA No. 114

Opinions of Counsel index

Volunteer firemen and fire companies in villages exemption (active member) (rescue squad) - General Municipal Law, §§ 200, 202; Real Property Tax Law, § 466:

A person subject to call for firefighting or rescue squad duty, without an option of whether or not to respond, is an active volunteer fireman and eligible to receive an exemption from real property taxes under section 466.

We are asked whether property of volunteer firefighters who serve solely on the first aid squad of a village fire department is eligible for the partial exemption available to certain firefighters. Section 466 of the Real Property Tax Law (RPTL) provides that upon the adoption of a proposition by qualified voters of a village, “the real property owned by a volunteer member of the village fire department . . . shall be exempt from taxation for village purposes to the extent of five hundred dollars in addition to any other exemption authorized by law.” This exemption has been construed to apply only to active volunteer members (16 Op.St. Compt. 88 (1960); but cf., Starr v. Mayor, n.o.r., 130N.Y.S.2d 235 (S.Ct., Nassau Co., 1954)).

The criteria used to determine whether a firefighter is “active”, for purposes of section 466 as well as for other provisions of law using the term “volunteer fireman”, have been the subject of Opinions of the Attorney General and the State Comptroller. The Attorney General has stated that an active volunteer member of a fire company is “one who is subject to call for duty and does not have an option of whether he will or will not place himself on duty” (1958 Op. Atty. Gen. 168 (Inf.), construing section 3(1) of the Volunteer Fireman’s Benefit Law which defines the term “volunteer fireman” as meaning “an active volunteer member of a fire company”).

Although the Comptroller has said that an active volunteer fireman is one who is subject to call for “firemanic duties” (11 Op.St. Compt. 449 (1955); 12 Op. St. Compt. 164 (1956)), those duties apparently include duties other than fighting fires. Thus, an active member is “subject to call for whatever duties are assigned to him. . . . For example, less arduous duties might be assigned to the elderly or disabled members, yet they would be active members” (6 Op. St. Compt. 136, at 137 (1950)). Similarly, people whose sole duties are to answer special alarm telephones in their homes are active members of volunteer fire companies (1964 Op. Atty. Gen. 132 (Inf.)). More relevant, it has been held that the membership may be divided into functions, with certain members serving as firefighters and others serving as a rescue squad pursuant to section 209-b of the General Municipal Law (6 Op. State Compt. 313, 316 (1950)).

It is our opinion, therefore, that those people who satisfy the Attorney General’s criteria of active volunteer firemen, i.e., subject to call for duty without an option of whether or not to respond (supra), and who have been assigned to rescue squad duties, are eligible to receive the section 466 exemption from real property taxes.

There is a distinction between classification of functions of active members, as described above, and various membership classifications that fire companies may adopt. Although a fire company may classify members into categories such as “exempt”, “inactive”, “honorary”, “life” or “social”, the law relating to volunteer firefighters recognizes only one type of membership - active - and if a firefighter stops being active, he or she is not considered a “member” under State law (25 Op. St. Compt. 65 (1969); 1970 Op. Atty. Gen. 191 (Inf.)).

A distinction must also be drawn between an “exempt volunteer fireman” as that term is used in sections 200 and 202 of the General Municipal Law, and firemen entitled to a partial exemption from taxation pursuant to section 466 of the Real Property Tax Law. The General Municipal Law designation “exempt volunteer fireman” does not apply to the exemption from taxation provided by section 466 of the Real Property Tax Law. The designation, rather, is relevant to other statutes involving matters such as exemption from serving as a juror (Judiciary Law, § 512(4); see, Op.State Compt. 79-396)) and civil service removal and disciplinary proceedings (Civil Service Law, § 75(1)(b)). We agree with the Comptroller’s opinion that the exemption provided by section 466 of the Real Property Tax Law applies to all active members of village volunteer fire companies, regardless of whether they are eligible for or have received an exemption certificate pursuant to the General Municipal Law (6 Op. State Compt. 301, 302 (1950)). Comparably, the holder of such an exemption certificate does not qualify for the partial real property tax exemption authorized by section 466 unless he or she is currently an active member (id.).

September 17, 1983