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Volume 8 - Opinions of Counsel SBEA No. 115

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (non-resident) - Military Law, § 304; Real Property Tax Law, § 458-a; 50 U.S.C. § 574:

Qualifying residential real property” for purposes of the alternative veterans exemption is limited to the primary residence of the otherwise eligible applicant.

An individual who served in the military service during the Vietnam era and has remained in service since that time is currently on active duty, stationed in another state. This veteran has unsuccessfully attempted to obtain an alternative veterans exemption for property which he owns in New York State. The property is currently unoccupied.

Section 458-a of the Real Property Tax Law [RPTL] provides a partial exemption from real property taxation for residential property owned by certain persons identified in the statute as “qualified owners”. This exemption is computed as a percentage of assessed value of the property to which it applies. In general, a wartime veteran qualifies for an exemption equal to 15% of the assessed value of the real property. An additional 10% exemption is provided for veterans who can document service in a combat zone or combat theater of operations. Further, if a veteran has received a compensation rating from the Veterans’ Administration or the Department of Defense because of a service connected disability, an exemption equal to the product of the assessed value multiplied by one-half of the disability rating is available. Each of these exemptions is subject to a maximum dollar limitation.

For purposes of the alternative veterans exemption, a “veteran” is defined as “a person who served in the active military, naval or air service during a period of war and who was discharged or released therefrom under honorable conditions” (§ 458-a(1)(e)). Since this individual served during the Vietnam era, and was honorably discharged or released from service, in our opinion, he may be considered a “veteran” for purposes of this section, notwithstanding his subsequent reenlistment and present military service.

Another requirement of the law, however, is that the “qualifying residential real property” for which the exemption is sought “must be the primary residence of the veteran or unremarried surviving spouse of the veteran, unless the veteran or unremarried surviving spouse is absent from the property due to medical reasons or institutionalization” (§ 458-a(1)(d)). We construe the primary residence requirement of section 458-a in the same manner as the residency requirement of the aged exemption (RPTL, § 467). That is, whether a dwelling is an applicant’s primary residence depends on such facts as where he votes, the length of time spent in each place, the nature and amount of personal property in each place, and other conduct and behavior evidencing which property an applicant considers to be his permanent home (see, 2 Op.Counsel SBEA No. 57). The issue of legal residency is a question of fact to be determined on a case by case basis. The assessor’s judgment is, however, subject to administrative and judicial review.

If the assessor determines that the serviceman-veteran now resides out-of-State, then in our opinion, the property in New York State does not presently qualify for the alternative veterans exemption. The fact that at some future date he may return to New York and take up residence here is irrelevant to the question of current taxable status.

Because this individual is presently serving on active duty, additional analysis is necessary. Both the Federal and State Soldiers and Sailors Civil Relief Acts (50 U.S.C. Appx. § 501 et seq.; N.Y.S. Military Law, § 300 et seq., respectively) must be considered. Section 560 of the Federal Act and section 304 of the State statute provide certain protections to property, including real property of a person in military service. Both sections postpone the enforcement of collection of real property taxes on “real property owned and occupied” for dwelling (or other specified) purposes “by a veteran in military service or his dependents, at the commencement of the period of his military service and still so occupied by his dependents or employees . . .” (see, 5 Op.Counsel SBEA No. 26).

Pursuant to section 574(1) of the Federal Act, for purposes of certain forms of taxation, a serviceman’s domicile or residence is not changed by a military assignment. This exception, however, applies only to “taxation of any person, or of his personal property, income, or gross income” (50 U.S.C. § 574(1) (emphasis added)). It has no application to real property taxes {*} (see, Sullivan v. United States, 395 U.S. 169, 89 Sup.Ct., 1648, 23 L.Ed.2d 182 (1969); Waldron v. People, 181 Misc. 443, 46 N.Y.S.2d 587 (Sup. Ct., Queens Co. 1944); 32 ALR2d 618).

February 11, 1986

{*}  The Congressional rationale for the exception was that a nonresident serviceman should not be exposed to multiple taxation merely because the location or situs of the property which might be subject to such taxation might change because of military assignment. Sullivan v. United States, supra.