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Volume 1 - Opinions of Counsel SBEA No. 70

Opinions of Counsel index

Aged exemption (income requirement) (income of deceased spouse) - Real Property Tax Law, § 467:

If the deceased spouse of an applicant for the aged exemption died before taxable status date of the year in which the application is made, his income should not be included in the computation for purposes of subdivision 3(a) of section 467 of the Real Property Tax Law.

Our opinion has been requested as to whether the income of a deceased spouse should be included in the computation of the income of the surviving spouse for purposes of determining that spouse’s eligibility for the “aged” exemption (section 467, Real Property Tax Law).

The applicable provision is subdivision 3(a) of section 467 of the Real Property Tax Law which provides in part, as follows:

“3. No exemption shall be granted
  “(a) If the income of the owner or the combined income of the owners of the property for the income tax year immediately preceding the date of making application for exemption exceeds the sum of three thousand dollars, or such other sum not less than three thousand dollars nor more than five thousand dollars as may be provided by the local law, ordinance or resolution adopted pursuant to this section . . . .”

It is our opinion that if the deceased spouse died prior to taxable status date of the year in which the application is made, then the income of that deceased spouse should not be included in the computation for purposes of subdivision 3(a). This opinion is based on both the wording and the intent of the statute.

First, subdivision 3(a) is concerned with the “income of the owner . . . of the property”. The application, which may be filed up to and including taxable status date, must indicate the owner or owners of the real property in question. If the spouse has died before taxable status date, then obviously he should not be considered as an owner of real property on taxable status date, nor should he be considered as the spouse of an owner on taxable status date. This being the case, income computation should include only the income earned by the surviving spouse.

Second, the income computation provision directs that income is that amount which was earned during the income tax year immediately preceding the date of making application for exemption, and income tax year is defined as the twelve month period for which the owner or owners filed a federal personal income tax return (or if no such return is filed, the calendar year). Although the tax relief provided by the exemption actually applies to the financial condition of the owner for the year in which he receives the exemption, it would obviously be impossible to accurately compute his income for the year in which the application must be made and the taxes levied, that being the same year.

Therefore, the time period for measuring income is one year prior to the year of application, and that year is considered to be the best possible estimate of the income earned in the year in which the application is filed. However, since the intent of the statute is to estimate the income for the year in which the application is made, it follows that this estimate should not include the income of the deceased spouse since that income will not be received by the owner due to the death of his spouse.

It is our opinion, therefore, that if the spouse died before taxable status date, his income should not be included in the computation of income for purposes of the aged exemption.

March 10, 1971

Updated: