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Volume 11 - Opinions of Counsel SBRPS No. 58

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (reservist) (career military personnel) - Real Property Tax Law, § 458-a:

A member of a reserve component of the U.S. Armed Forces who performed significant, full-time active duty during wartime and has now been released back into reserve status is a veteran for purposes of section 458-a. However, an exemption applicant who is a career member of the armed forces and has never been discharged or released is not a “veteran” and may not yet receive the benefit of that exemption.

We have received an inquiry from an assessor concerning the alternative veterans exemption (Real Property Tax Law, § 458-a). The assessor states that an applicant’s active duty commenced in 1986 and has continued to this day. The applicant states that he never received any discharge documentation when he has re-enlisted for additional tours of duty. The question is whether the applicant is considered a veteran for exemption purposes.

A “veteran” is defined for purposes of the alternative veterans exemption, in relevant part, as “a person who served in the active military, naval, or air service during a time of war, or who was a recipient of [an expeditionary medal], and who was discharged or released therefrom under conditions . . .” (RPTL, § 458-a(1)(e), emphasis added). We note that the statutory language uses both the disjunctive “or” and the conjunctive “and.” While it is said that, in interpreting statutes, these terms are generally interchangeable (McKinney’s Statutes, § 365), we believe that, here, the Legislature intentionally used both words because it intended different meanings.

That is, to be considered a veteran, two conditions must be satisfied. First, one must have served during wartime or, if service was during peacetime only, one must have received an expeditionary medal (see, 9 Op.Counsel SBEA No. 120). Second, one must have been discharged or released from active military, naval, or air service under honorable conditions (see, 8 Op.Counsel SBEA Nos. 47, 103).

Given the statutory requirement of a discharge or a release, active duty personnel are not generally eligible for exemption. One exception to this is when an individual served in the armed forces during a period of war, was honorably discharged, and subsequently reenlisted. Such an individual would be considered a “veteran” despite his or her reenlistment, since he or she was discharged or released, if only for a brief period of time (see, 8 Op.Counsel SBEA No. 115). Several years ago, the State Division of Veterans’ Affairs advised us of a procedural change whereby, as was apparently formerly the case with officers, career enlisted personnel no longer receive even momentary discharges. Accordingly, if the applicant in question is a career member of the armed forces and he has indeed never been discharged or released, in our opinion, he is not a “veteran” for purposes of section 458-a and he cannot currently receive the benefit of that exemption.

The status of reservists presents another issue as it is common knowledge that the military is making increased use of reserve units in its operations (see, e.g., N.Y. Times, Apr. 6, 2003, § 4 at 12). We have stated that reservists who engage in significant, full-time active duty (as distinguished from “active duty for training”) during a time of war are veterans for purposes of section 458-a (8 Op.Counsel SBEA No. 37).{1}  In our opinion, if an assessor determines that an applicant/reservist performed significant, full-time active duty during wartime and that he or she has now been discharged or released (perhaps back into reserve status which naturally connotes at least the possibility of additional active duty in the future), the applicant is a veteran for purposes of section 458-a.

We recognize that this presents an apparent dichotomy in the treatment of career and reserve military personnel, but it is a function of the current statutory definitions. Naturally, if the Legislature wishes to extend a real property tax exemption benefit to individuals in the military who have not yet been discharged or released, it may certainly do so. To date, however, it has not done so in section 458-a of the RPTL. {2}

April 7, 2004

{1}  For example, the statutorily defined Persian Gulf War began August 2, 1990; it has not been concluded (RPTL, § 458-a(1)(a)).

{2}  While statutory section headings do not extend or restrict actual statutory language, they may be read to clarify imprecise statutory language (McKinney’s Statutes, § 123(b)). Here, although the definition of “veteran” in section 458-a(1)(e) does not appear to require extrinsic interpretative aid, the fact remains that section 458-a is entitled “veterans; alternative exemption,” not “military” or “armed forces” exemption. This heading, we suggest, also supports our opinion that career military personnel do not qualify for the exemption until they leave the service.