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Volume 7 - Opinions of Counsel SBEA No. 119

Opinions of Counsel index

Exemptions - generally (special ad valorem levies and special assessments) (tax exempt property within cities and villages - fire district charges) - Real Property Tax Law, §§ 490, 2002:

Real property which is exempt from special ad valorem levies to the extent provided in section 490 is exempt from fire district charges, regardless of the location of the property.

Our opinion has been requested concerning the liability for fire district charges of tax-exempt properties located within a village.

Once again, we must consider the phrase in section 490 of the Real Property Tax Law (RPTL) which appears to limit the scope of exemption from special district charges to “real property located outside cities and villages”. Previously, we have concluded that that phrase does not apply to county special district charges (7 Op.Counsel SBEA No. 88).

Section 490 of the RPTL sets forth the exemption from special ad valorem levies and special assessments available to “tax-exempt” property owners. In part, it provides that such tax-exempt properties “shall also be exempt from special ad valorem levies and special assessments against real property located outside cities and villages for a special improvement or service or a special district improvement or service . . .” (emphasis added).

There can be no question that charges imposed on behalf of a fire district qualify as charges for a “special district . . . service” within the meaning of section 490 (see, RPTL, § 102(16); and Town Law, § 174(6)). Based upon the emphasized language above, then, it might be assumed that only tax-exempt property in the town-outside-village area of the fire district should be exempted from levies on behalf of the fire district. That is, tax-exempt property located within the boundaries of the village would be liable for those levies. However, section 490 may not be construed without consideration of other provisions of the RPTL.

By virtue of subdivision 6 of section 2002 of the RPTL, section 490 must be construed as “a continuation and restatement, without change in substance or effect” of former section 4 of the Tax Law {*} (emphasis added). In short, the scope of the exemptions provided by section 490 must be read to be coterminous with that of former section 4, notwithstanding some significant variations in the terms of the two statutes. In regard to this anomalous situation, Judge Bergan of the Court of Appeals said in dissent (in a case involving a similar provision of the RPTL),

Because subdivision 5 of section 1602 [now, RPTL § 2002(5)]. . . provides that the legislative intent in the enactment of the [RPTL] . . . was to effectuate a continuation and restatement of the former law without change in substance or effect, it is suggested that the former statute is controlling.

But a man is entitled to read a currently operative statute affecting his property and rights according to its manifest language and ought not be required to understand what it means by reading an old statute which has been repealed. This seems especially important in respect of a tax statute.

(City of Lackawanna v. State Board of Equalization and Assessment, 16 N.Y.2d 222, at 234-235, 212 N.E.2d 42, 264 N.Y.S.2d 528, at 538 (1965) (emphasis added)).

While we might concur in Judge Bergan’s lament, the prevailing opinion in that case requires us to read section 490 in conjunction with former section 4 of the Tax Law. The result of that reading should be neither a broadening nor a diminution in the scope of any exemption previously granted (§ 2002(6)).

As amended in 1953, section 4 defined “taxation” and “taxes”, for the purpose of clarifying the scope of exemptions from “taxation” relative to special district improvements or services (see discussion in 7 Op.Counsel SBEA No. 88). In pertinent part, “taxes” were defined to include:

2. Charges whether known as “taxes” or “assessments,” levied after [June 30, 1953] upon real property in fire districts . . . for the purposes of the districts, and similar charges relating to fire service required by law to be levied upon real property in the area of towns outside villages and such districts.

Careful examination of that language finds that it describes two distinct types of fire service-related charges, namely:

(1) charges imposed on behalf of fire districts upon real property anywhere within the fire district; and

(2) other charges imposed for fire service within the area of the town outside any villages and in the area of the town outside fire districts, fire alarm districts and fire protection districts. Such areas are known as “unprotected areas” under certain provisions of the Town Law (§§ 184-a, 184-c), for which a town board may contract to provide a water supply for fire services.

Thus, it is clear that former section 4 of the Tax Law included within the terms “taxes” and “taxation” all charges imposed on behalf of fire districts, regardless of the location of the property (but cf., 1966 Op.Atty. Gen. 129 (Inf.)). Accordingly, real property exempt from “taxation” was also to be exempt from charges levied on behalf of a fire district, whether the property were located in the area of the town outside of the village, or within the village.

The reference in the above-cited language of former section 4 to charges “in the area of towns outside villages” did not limit the scope of the exemption from fire district charges, but rather provided that the exemption extended to charges imposed for fire services in such areas, as well as all fire district charges. Since that was the result under former section 4, we are bound by section 2002(6) and the majority opinion in the City of Lackawanna case to conclude that section 490 should be similarly construed.

April 1, 1983

{*}  Section 490 is derived from former section 4 of the Tax Law, the latter as amended by Chapter 876 of the Laws of 1953 and repealed by Chapter 959 of the Laws of 1958 (see, 7 Op.Counsel SBEA No. 88).