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Volume 11 - Opinions of Counsel SBRPS No. 10

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (Naval Academy midshipman) - Real Property Tax Law, § 458-a:

Service as a midshipman at the U.S. Naval Academy during a defined period of war is “active duty” for purposes of the alternative veterans exemption.

We have been asked if a person, who attended the U.S. Naval Academy as a midshipman between June 1971 and June 1975, and then served in the navy until 1981 and the naval reserve until 1997, may receive an alternative veterans exemption (Real Property Tax Law, § 458-a). The applicant has a letter from the Department of the Navy indicating that his attendance at the Naval Academy was considered active duty. We agree.

To be considered a veteran for purposes of the exemption, one must have served honorably during a period of war or have received an expeditionary medal (RPTL, § 458-a(1)(e)). Given this applicant’s period of active service, the relevant period of war is the Vietnam War, which is defined in current law as occurring between December 22, 1961 and May 7, 1975 (RPTL, § 458-a(1)(a)). {1}  Since the applicant never received an expeditionary medal, and his non-school naval service began after the war ended, his exemption eligibility depends on his student status.

We have stated:

The alternative veterans exemption may be granted to “qualifying 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 in section 101(21). . . .

From a comparison of the definitions in new section 458-a and those in section 101 of Title 38 of the U.S. Code, it appears that the definitions in State law are based upon the definitions in the Federal statute . . . (8 Op.Counsel SBEA No. 37). {2}

Among the definitions of “active duty” in the aforementioned section 101(21) of the U.S. Code is “(D) service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy[.]” Consequently, midshipman service in the Naval Academy during wartime qualifies one as a “veteran” for purposes of section 458-a of the RPTL. {3}

The applicant has explained that his Naval Academy service is not considered as active duty for retirement pay purposes, and it is for this reason that such service is not so recognized on his DD-214. This is consistent with another inquiry we received several years ago concerning a Coast Guard Academy wartime student. The aforementioned letter from the Department of the Navy, however, is sufficient proof of active duty service.

May 3, 2001

{1}  For the purposes of administering Federal veterans’ benefits, Federal law now defines the “Vietnam era” as commencing February 28, 1961 for veterans who served in the Republic of Vietnam (38 USCA § 101(29)(A)). When section 458-a was first enacted (L.1984, c.525), the commencement date for the Vietnam War was January 1, 1963. In 1993 (c.270), it was changed to December 22, 1961. Where section 458-a(1)(a) specifically defines the dates of a period of war, that definition, not Federal law, governs, so further amendment to section 458-a will be necessary if the now earlier date in Federal law is to apply for State exemption purposes. [Ed. note: RPTL, § 458-a(1)(a) was subsequently amended (L.2006, c.179) to change the commencement date of the Vietnam War to February 28, 1961, and was further amended (L.2021, c.606) to change the commencement date to November 1, 1955.]

{2}  Except where section 458-a includes a conflicting provision (see note one).

{3}  For similar reasons (based on 38 USCA § 101(21)(B)), we have concluded that a surgeon in the Public Health Service who provided honorable service during a time of war is a “veteran” for section 458-a purposes (10 Op.Counsel SBRPS No. 105).