Volume 6 - Opinions of Counsel SBEA No. 43
Veterans exemption (ownership) (title obtained through prior marriage) - Real Property Tax Law, § 458:
Where the spouse of a veteran obtained title to real property as a result of the death of a former spouse, and eligible funds of her current spouse are used to improve her property, a veterans exemption (Real Property Tax Law, §458) may be granted.
A woman and her husband (neither being a veteran) purchased property as tenants by the entirety in 1952. The husband died in 1958, and the woman remarried in 1964, this time to a veteran. The woman is seeking an exemption pursuant to section 458 of the Real Property Tax Law based on the use of her second husband’s disability compensation moneys toward the cost of improving her property, and our opinion is requested concerning eligibility for exemption.
Section 458 of the Real Property Tax Law provides a partial real property tax exemption for veterans. Subdivision 1 of this section provides that property owned by a veteran or certain other persons designated in the statute may be entitled to an exemption to the extent (not to exceed $5,000) that certain designated moneys (eligible funds) were used in the purchase of real property.
Accordingly, there are basically three requirements which must be satisfied before a veterans exemption may be granted, viz., ownership, use of eligible funds, and purchase. From the facts submitted, it appears that a veterans exemption should be granted.
Following the death of her first husband, the applicant became the sole owner of the real property (Bertles v. Nunan, 92 N.Y. 152). Since there is no question that the woman’s present husband is a veteran, and the statute provides that the spouse of a veteran may receive a veterans exemption (see, 2 Op.Counsel SBEA No. 101), the ownership requirement of the statute is satisfied.
The assessor has not raised any question as to the status of the veteran’s disability compensation. It is clear that disability payments are eligible funds (67 St.Dept. 428). The application for exemption indicates that the veteran received his moneys from 1947 through 1965. Although not questioned by the assessor, it should be noted that the burden is on the applicant to show that these moneys were retained until they were used in the purchase of the property. Of course, the mingling of the eligible funds with other moneys does not bar the granting of the exemption (§458(1)(2); 1 Op.Counsel SBEA No. 1). Accordingly, it appears that the husband of the applicant, i.e., the veteran, did receive eligible funds.
The third requirement for exemption is that the eligible funds be used in the purchase of property. The applicant has indicated that the eligible funds were used to pay for improvements to the property between 1964 and 1966. We have previously stated that the payment for capital improvements with eligible funds constitutes a “purchase” within the meaning of section 458 (4 Op.Counsel SBEA No. 120). Although the burden of proving that improvements were made to the property is on the applicant, assuming she can sustain this burden, the purchase requirement of the statute is satisfied.
Accordingly, it is our opinion that where the spouse of a veteran has sole title to real property (even where title was obtained during or as a result of the termination of a prior marriage), and the eligible funds of her current husband are used to pay for improvements to the real property, a veterans exemption should be granted.
March 1, 1979