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Volume 8 - Opinions of Counsel SBEA No. 116

Opinions of Counsel index

Taxes, enforcement (limitations) (military service) - Military Law, § 314; Real Property Tax Law, § 1002:

The enforcement of the collection of an unpaid tax upon real property owned and occupied by a person in active military service may not proceed without permission of a court.

A question has been raised concerning the manner of enforcing the collection of unpaid taxes upon real property owned by persons in military service.

The relevant statute is section 314 of the Military Law which applies to taxes falling due, prior to or during military service, upon real property which is owned and occupied for dwelling, agricultural or business purposes by the person in the military service, or occupied by his dependents or employees at the start of and during his military service.

Subdivision (2) expressly provides that payment of “such tax” cannot be enforced by sale or other proceeding, except by permission of a court upon application of the officer whose duty it is to enforce the tax. In the event of such an application, the court may grant a stay for a period of six months until after the termination of military service, unless, in the opinion of the court, the ability “of the person in military service to pay such taxes is not materially affected by reason of such service.”

If real property of a person in military service is sold (with permission of the court), such person has the right to redeem the property not later than six months after his discharge (§ 314(3)). When a tax or assessment is not paid when due, such tax or assessment bears interest at the rate of six percent per year. No other penalty or interest is incurred for such non-payment, whether such penalty or interest shall have occurred prior to or during the military service (§ 314(4)).

Note that section 314 does not prohibit, defer or postpone the assessment for taxation of real property of persons in the military service, but merely defers the enforcement of the collection of such a tax. Therefore, such property must be assessed and taxes extended thereon in the same manner as other real property within a particular assessing unit.

Additionally, the statute imposes no filing requirements upon the person in military service wishing to avail himself of its protection; rather, the burden of observing the statute is placed upon the person whose duty it is to enforce the tax. If the county treasurer is charged with the duty of enforcing real property taxes, it will be the responsibility of the treasurer to observe the provisions of this statute.

Accordingly, if a parcel on the county’s tax sale list is owned and occupied by a person in active military service (or an employee or dependent), it should be stricken from the list until such time that a court order directing its sale is obtained or the individual is no longer in active military service.

May 19, 1987