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Volume 10 - Opinions of Counsel SBRPS No. 105

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (Public Health Service) - Real Property Tax Law, § 458-a:

A surgeon in the Public Health Service who provided honorable service during a time of war is a “veteran” for purposes of the alternative veterans exemption.

We have been asked if a physician, who served as a surgeon in the Public Health Service during the defined period of the Vietnam War and who was subsequently separated from that service under honorable conditions, may receive an alternative veterans exemption (Real Property Tax Law, §458-a). We believe so.

As we stated in 8 Op.Counsel SBEA No. 37:

The alternative veterans exemption may be granted to “qualified residential real property” which is “property owned by a qualified owner which is used exclusively for residential purposes” (§458-a(1)(d)). A “qualified owner” is defined as including a “veteran” (§458-a(1)(c)), that is, “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)).

The term “active military, naval or air service” is not defined in the Real Property Tax Law, but is defined in section 101(24) of Title 38 of the United States Code (entitled Veterans’ Benefits) as including “active duty ....”

The term “active duty” is defined to include, “full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service (i) on or after July 29, 1945...” (38 USCA §101(21)(B)). Federal law also provides, “The grades of commissioned officers of the [Public Health] Service shall correspond with grades of officers of the Army as follows ... (3) officers of the full grade - major” (42 USCS §207(a)). That section continues: “The titles of medical officers of the foregoing grades shall be respectively ... (3) surgeon ...” (42 USCS §207(b)). Also: “The [Public Health Service] is organized along military lines, each officer grade having a statutorily stated military rank equivalent” (Alexander v. United States, 500 F.2d 1, 4 (8th Cir. 1974), cert. den., 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975)). {1}

Based on the foregoing, given his Public Health Service rank and honorable service during a defined period of war, in our opinion, the physician in question qualifies for as a “veteran” for purposes of the alternative veterans exemption.

April 27, 2000


{1}  Federal law also gives active service commissioned officers of the Public Health Service various Federal veterans benefits (42 USCS §213; Wanner v. Glen Ellen Corp., 373 F. Supp. 983 (USDC Vt. 1974); Johnson v. Robison, 415 U.S. 361, 374, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389, n.13 (1974)).

Updated: