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Volume 4 - Opinions of Counsel SBEA No. 116

Opinions of Counsel index

Aged exemption (income requirement) (veterans non-service connected disability pension) (veterans New York State blind annuity) - Real Property Tax Law, § 467:

For purposes of the income requirement of section 467 of the Real Property Tax Law, a pension paid to a veteran for a non-service connected disability and payments made to a veteran under the New York State Blind Annuity Program constitute income.

Our opinion has been requested as to whether certain veterans’ benefits should be considered “income” for purposes of section 467 of the Real Property Tax Law, the so-called “aged exemption.” The facts are that an individual is presently receiving payments under two programs available to veterans: the first is a pension for a non-service connected disability pursuant to a federal government statute (38 U.S.C., §§ 521-523); the second is an annual payment of $500 under the New York State Blind Annuity program (Executive Law, §§ 362-364). The question is whether such payments are “gifts” and therefore excludable from income for purposes of the aged exemption.

Under the aforementioned federal program, veterans who have served during certain defined periods of war or hostilities for 90 or more days, and who become permanently and totally disabled for reasons not traceable to service, may be eligible for a non-service connected disability pension if their income does not exceed certain limitations. Veterans 65 years of age or over are considered permanently and totally disabled for pension purposes. Payments vary between $22 and $260 monthly depending on several factors, including income, number of dependents, and need for the regular aid and attendance of another person.

We have previously stated that “total disability payments” received by a veteran from the Veterans’ Administration constitute income for purposes of section 467 (1 Op.Counsel SBEA No. 87). Consistent with that opinion is our belief that a pension paid to a veteran for a non-service connected disability would not be considered a “gift” as that term is normally understood. That is, a “gift” has been judicially defined as “. . . a voluntary transfer of any property or thing by one to another without consideration” (McKenzie v. Harrison, 120 N.Y. 260, 265, 24 N.E. 458) (emphasis added), and a veteran’s service for 90 or more days during defied periods of war or hostilities would be construed as “consideration” for the payment of this federal pension. Therefore, payments made under this federal program should be considered “income” for purposes of section 467.

The second question concerns payments made under the New York State Blind Annuity program. Under this program, an annual payment of $500 is available to any eligible blind veteran, defined as those (1) who served on active duty for 90 days or more without dishonor during specified wartime periods, and (2) who meet the New York State standards of blindness as defined, and (3) who were residents of New York State when they entered active duty in the Armed Forces of the United States, and are now, and continue to be residents of and continuously domiciled in New York State. In addition, the unremarried widow of a veteran who had been receiving these benefits at the time of his death, may continue receiving such payments assuming she remains a resident and domiciliary of New York State.

Again, we do not believe that payments such as those made under this program can be properly categorized as a “gift.” Rather it is our opinion that such payments are in the nature of social security and retirement benefits and therefore should be included as “income” for purposes of section 467.

April 15, 1975

NOTE:  Construes law prior to L.1997, c.168.

Updated: