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Volume 3 - Opinions of Counsel SBEA No. 8

Opinions of Counsel index

Cemeteries exemption (storage facility) (private residence) - Real Property Law, § 450; Real Property Tax Law, § 446:

Structures which are used for the maintenance and storage of equipment necessary for the operation of a cemetery are exempt from taxation pursuant to section 446 of the Real Property Tax Law. However, property used as a private residence and for private business purposes is not entitled to this exemption, and the total assessed valuation should be apportioned between the exempt and nonexempt portions of the property.

Our opinion has been requested as to whether an assessor may grant a partial exemption rather than a total exemption on certain real property owned by a cemetery. Specifically, the cemetery owns a house and garage directly across the street from the burial grounds. Except for one 10′ x 12′ room, the entire house is occupied as a residence by the cemetery caretaker and his family. The caretaker does not devote his full time to his cemetery duties, but, seemingly such duties constitute his principal occupation.

The house has attached to it a three-car garage, of which one-third is used for the storage and maintenance of equipment necessary for the cemetery business. The caretaker uses the remaining space to store and maintain equipment which he uses in private business activities.

It was estimated that 11 percent of the house and 33 percent of the garage area is devoted to cemetery purposes, and that the remainder of the real property is used exclusively for private residential and business purposes of the caretaker and his family.

Real property which is used and occupied for cemetery purposes is entitled to the exemption provided by section 450 of the Real Property Law (Real Property Tax Law, § 446). It is clear that structures which are used for the maintenance and storage of equipment necessary for the operation of a cemetery are exempt from taxation pursuant to this statute (People ex rel. Woodlawn Cemetery v. Chambers, 91 N.Y.S.2d 774). Thus, the use of the single room and the one-third of the garage is clearly within the scope of the exemption authorized by the above cited statutes.

However, it is our opinion that property which is used as a private residence and for private business purposes is not entitled to this exemption, and we believe that the total assessed valuation should be apportioned between the exempt and nonexempt portions of the property (Trustees of Sailors’ Snug Harbor in the City of New York v. Tax Commission of the City of New York, 26 N.Y.2d 444, 259 N.E.2d 910, 311 N.Y.S.2d 486).

July 20, 1973

NOTE:  Construes law prior to L.1981, c.920.

Updated: