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Volume 7 - Opinions of Counsel SBEA No. 9

Opinions of Counsel index

Foreign governments exemption (ambassador’s summer residence) - Real Property Tax Law, § 418:

Real property owned by the Belgian Ambassador to the United Nations and used by him as a residence on weekends and during the summer is not exempt from real property taxation.

Our opinion has been requested concerning the taxable status of real property owned by the Belgian Ambassador to the United Nations in the Village of Southampton, New York. He seeks an exemption based upon section 418 of the Real Property Tax Law and various provisions of the Vienna Convention on Diplomatic Relations (23 U.S.T. 3229, T.I.A.S. No. 7592, 500 U.N.T.S. 95).

The Ambassador considers the property in question to be his residence. His wife resides in the property from Friday afternoon to Tuesday morning during the school year, and he resides there from Friday afternoon to Monday morning. During school recess and throughout the summer, he resides in the property on a full time basis. In fact, more than half of the year is spent in residence at the Southampton property.

Section 418 provides in part that,

Real property of a foreign government which is a member of the United Nations. . .the legal title to which stands in the name of such foreign government or the principal resident representative or resident representative with the rank of ambassador or minister plenipotentiary of such foreign government to the United Nations . . .used exclusively for the purposes of maintaining offices or quarters, for such representatives. . .shall be exempt from taxation. . .

The Village attorney does not believe that the property is the property of Belgium, but rather that it is the privately owned summer home of that country’s Ambassador.

Real property tax exemption statutes must be strictly construed (Herkimer County v. Village of Herkimer, 251 App. Div. 126, 295 N.Y.S. 629 (4th Dept., 1937), aff’d, 279 N.Y. 560, 18 N.E.2d 854 (1939)). Accordingly, an exemption may be granted only when the terms of the appropriate statute are satisfied. From the facts submitted, it appears that legal title to the property in question is in the name of the Ambassador of Belgium to the United Nations. The facts with respect to other requirements of section 418 are not as clear. That is, it is uncertain whether this property would be deemed to be the .property of his country. Similarly, it is questionable whether property located in Southampton, which is a considerable distance from the United Nations, would be deemed to be the Ambassador’s “quarters.” From the facts submitted, it is obvious that he occupies other quarters during much of the year.

The provisions of the Vienna Convention on Diplomatic Relations must also be examined, since treaties of the United States are the “supreme Law of the Land” (United States Constitution, Article VI, §2). Section 1 of Article 23 of the aforementioned diplomatic treaty provides, in part, “The head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.” The phrase “premises of the mission” is defined in paragraph (i) of Article 1 of the Treaty as “including the residence of the head of the mission.” We assume that the Ambassador is the “head of the mission” as that term is defined in paragraph (a) of Article 1 of the Treaty, viz., “the person charged by the sending State with the duty of acting in that capacity.” In order to satisfy the criteria of this Treaty provision, the burden of proof is on the Ambassador to show that the Southampton property is indeed his “residence.”

It appears that both section 418 of the Real Property Tax Law and the relevant provisions of the Vienna Convention on Diplomatic Relations are intended to exempt the principal residence of the appropriate foreign dignitary with respect to his services on behalf of his mission. There is no apparent intent to exempt the privately owned real property of such a person when he also occupies other quarters (presumably entitled to tax exemption) from which he carried out his diplomatic duties. Accordingly, it is our opinion that the subject property is taxable.

April 24, 1979

Updated: