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Volume 4 - Opinions of Counsel SBEA No. 68

Opinions of Counsel index

Aged exemption (income requirement) (retiree’s earnings) - Real Property Tax Law, § 467:

The earnings of a retiree for the income tax year immediately preceding the date of making application for exemption must be included for purposes of section 467.

We have received an inquiry concerning the income requirement of the so-called “aged exemption” (Real Property Tax Law, § 467). The question is whether a real property owner who retires prior to the filing of his application for this exemption is required to include his salary for the previous year for purposes of the income reporting requirement of that statute. This situation is to be distinguished from an earlier opinion of this office concerning the income of a deceased spouse who died prior to taxable status date (1 Op.Counsel SBEA No. 70).

Paragraph (a) of subdivision 3 of section 467 provides that no exemption shall be granted if the income of the owner or the combined income of the owners of the property for the tax year immediately preceding the date of making application for exemption exceeds the income limit set by the granting municipality. An application for the exemption must be filed on or before the appropriate taxable status date, and such application must indicate the owner or owners of the real property in question. Taxable status date is the final cutoff date as of which property is assessed on the taxable or exempt portion of the assessment roll. The reason for requiring that an application for the aged exemption be filed on or before taxable status date is that real property must be assessed according to its condition and ownership as of that date (Real Property Tax Law, § 302) . Thus, where a spouse has died before taxable status date he would not be considered an owner of the property for assessment and taxation purposes. Therefore, as pointed out in 1 Op.Counsel SBEA No. 70, for purposes of section 467, where a spouse has died prior to taxable status date, he should not be considered as an owner of real property on such date, nor should he be considered as a spouse of an owner on such date; therefore, the income computation should include only the income earned by the surviving spouse in this situation.

However, where a retiree is an owner of the property and alive on taxable status date, the language of the statute clearly mandates that his income (which by statutory definition includes “. . . salary, or earnings . . .”) for the income tax year immediately preceding the date of making application for exemption, must be included for purposes of determining whether he meets the income requirement of this statute. Therefore, it is our conclusion that the earnings of a retiree for the income tax year immediately preceding the date of making application for exemption must be included as “income” for purposes of section 467.

December 9, 1974

Updated: