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Volume 11 - Opinions of Counsel SBRPS No. 18

Opinions of Counsel index

Alternative veterans exemption (residence and occupancy requirement) (separate domiciles of husband and wife); School tax relief [STAR] exemption (residence requirement) (separate domiciles of husband and wife) - Real Property Tax Law, §§ 425, 458-a:

New York law does not preclude a married person from qualifying for an alternative veterans exemption and school tax relief [STAR] exemption merely because their spouse receives a Florida homestead tax benefit on the spouse's Florida domicile.

We have received an inquiry from an assessor concerning the residency requirement of the alternative veterans exemption (Real Property Tax Law, § 458-a). The facts are that a husband and wife own property both in New York State and in the State of Florida. He claims New York as his residence; she claims Florida. They are not legally separated; he resides in New York for business purposes, traveling to Florida on a regular basis. The assessor was advised by a Florida assessment official that no school tax relief [STAR] exemption (RPTL, § 425) may be granted in New York State if their Florida property receives that state's homestead tax benefit. We respectfully disagree with the Florida official; {1} moreover, given these facts, in our opinion, the husband may also continue to receive an alternative veterans exemption on the New York State property.

Among the requirements for the alternative veterans exemption is that the property “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" (RPTL, § 458-a(1)(d)). We interpret both “primary residence," as used in this provision, and “legal residence," used elsewhere in the RPTL, to mean “domicile." {2}

Although a person may live in or occupy more than one dwelling, he or she can have only one domicile: that place in which the person has voluntarily fixed his or her abode with a present intention of making it his or her permanent home. A husband and wife, however, may have separate domiciles.

Although at one time a wife had to adopt the domicile of the husband, a husband may no longer assert an overriding control of the choice of a matrimonial domicile. Pursuant to sections 61 and 231 of the Domestic Relations Law a wife has the same capacity to acquire a domicile of her choice as does her husband (Lansford v. Lansford, 96 A.D.2d 832, 833, 465 N.Y.S.2d 583, 585 (2d Dept., 1983)).

(see, also, Unanue v. Unanue, 141 A.D.2d 31, 532 N.Y.S.2d 769 (2d Dept., 1988)). To claim separate domiciles, each spouse must submit evidence of where he or she intends to make his or her permanent home. In our School Tax Relief [STAR] Exemption Assessor’s Guide (2/01), we state (at p.8):

There is no single document that absolutely establishes primary residency, but the following types of documentation may be considered:

mailing address and property address match
driver’s license
NYS Income Tax return
utility bills or 911 service listing
voter registration card
social security statement
automobile registration
deed or recent tax bill

In the STAR Assessor’s Guide (on p.5), we also address the situation of a husband and wife each claiming a STAR exemption on their separate homes. We conclude that each may receive the exemption because STAR requires only that the property serve as the primary residence of one or more of the owners (RPTL, § 425(3)(b)). “Thus, the property need not serve as the primary residence of all of the owners of such property; the exemption may be granted even if one of the owners primarily resides elsewhere." {3}

There are no precise standards (e.g., minimum number of days) that determine residency. Rather, the issue of legal residency is a question of fact to be determined by the assessor on a case-by-case basis. Basically, the issue of “primary residence" is a question of fact that must be decided by the assessor, a decision subject to administrative and judicial review. In this case, if the assessor is satisfied that the husband’s domicile is in New York, in our opinion, assuming all other statutory criteria are met, he would be entitled to the alternative veterans (and STAR, should he apply for it) exemption.

September 5, 2001

{1}  We defer to Florida official interpretations of its statutes, and note that its law does prohibit a person from receiving a homestead exemption if that person receives a permanent residency-based exemption in another state (Florida Statutes, § 196.031(6)). Whether a Florida domiciliary is precluded from receiving that state’s homestead exemption because his or her spouse receives another state’s residency-based exemption is another matter (cf., Florida Statutes, §§ 196.015, 196.031(1)). In our opinion, the converse - i.e., the Florida official’s assertion - is not true under New York law.

{2}  “Primary residence” is also a prerequisite for the STAR exemption (RPTL, § 425(3)(b)); “legal residence” is required for purposes of the senior citizens and persons with disabilities and limited incomes exemptions (RPTL, §§ 467(3)(d), 459-c(5)(c), respectively).

{3}  Editor’s Note: Shortly after this Opinion was issued, the law was amended to say that a married couple may receive a STAR exemption on no more than one residence, unless living apart due to legal separation (RPTL § 425(4-a), as added by L.2002, c.83).