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Volume 8 - Opinions of Counsel SBEA No. 37

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (reservist) - Real Property Tax Law, § 458-a; 38 U.S.C. § 101:

As a general rule, reservists who engaged in active duty for training or who were activated for short periods of time are not eligible for the alternative veterans exemption. However, reservists who were activated during a time of war and who performed significant, full time active duty, may qualify for the exemption.

We have been asked whether reservists who served on six months active duty or who were activated for short periods of time (e.g., during a mail strike) during time of war are eligible for the alternative veterans exemption (Real Property Tax Law, §458-a).

The alternative veterans exemption may be granted to “qualifying residential real property” which is “property owned by a qualified owner which is used exclusively for residential purposes” (§458-a(l)(d)). A “qualified owner” is defined as including a “veteran” (§458-a(l)(c)), that is, “a person who served in the active military, naval, or air service during a period of war and who was discharged or released therefrom under honorable conditions” (§458-a(l)(e)).

The term “active military, naval, or air service” is not defined in the Real Property Tax Law, but is defined in section 101(24) of Title 38 of the United States Code (entitled Veterans’ Benefits) as including “active duty, any period of active duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” The term “active duty” is defined in section 101(21), in part, as “full time duty in the Armed Forces, other than active duty for training.” The term “active duty for training” is defined in subdivision 22 of that section of the U.S. Code as including “full time duty in the Armed Forces performed by Reserves for training purposes.”

From a comparison of the definitions in new section 458-a of the RPTL and those in section 101 of Title 38 of the U.S. Code, it appears that the definitions in State law are based upon the definitions in the Federal statute (e.g., compare the definition of “veteran” in RPTL, §458-a(l)(e) and 38 U.S.C. §101(2); see also, RPTL, §458-a(l)(b) and 38 U.S.C. §101(16) in regard to the meaning of “service connected”). Since, as discussed above, “active military, naval, or air service” generally excludes “active duty for training,” such as full-time duty performed by reserves for training purposes, the Federal definitions provide some support for the conclusion that reservists who engaged in active duty for training or who were activated for short periods of time were not intended to be entitled to the alternative veterans exemption.

Our conclusion is further enhanced by case law construing section 85 of New York State’s Civil Service Law which provides veterans with both additional credits on competitive civil service exams and preference in retention upon abolition of positions. In paragraph (a) of subdivision one of section 85, the term “veteran” is defined as “a member of the armed forces of the United States who served therein in time of war, [and] who was honorably discharged or released under honorable circumstances from such service . . .”. The term “armed forces of the United States” is, in turn, defined in section 13-a of the General Construction Law which, in part, provides that “no person shall be considered a member or veteran of the armed forces of the United States unless his or her service therein is or was on a full-time active duty basis, other than active duty for training.”

The courts of New York have had occasion to construe section 85 of the Civil Service Law. In Rahill v. Bronstein, 32 N.Y.2d 417, 298 N.E.2d 674, 345 N.Y.S.2d 534 (1973), the Court of Appeals considered the civil service claim of several honorably discharged members of reserve components of various branches of the armed forces who served in those reserves during time of war. The Court held that the scope of the civil service preference should be “limited to those whose wartime service was ‘full-time active duty’” (32 N.Y.2d at 421, 345 N.Y.S.2d at 537). While the Court noted that Article V, section 6 of the State Constitution authorizes a preference for veterans within the Civil Service system, it stated, “As an exception to a constitutional mandate [in favor of civil service appointments made pursuant to merit and fitness], the term ‘member of the armed forces’ should be given the narrowest interpretation consistent with the intent of the framers” (32 N.Y.2d at 425, 345 N.Y.S.2d at 540).

Subsequently, in LaRocca v. Bronstein, 44 A.D.2d 668, 354 N.Y.S.2d 437 (1st Dept., 1974), the Appellate Division reversed a lower court ruling and held that the petitioner, a member of the United States Naval Reserve in a time of war, who had served a six month tour of active duty for training, was ineligible for a veterans credit.

More recently, the Court of Appeals again considered the issue in City of New York v. City Civil Service Commission, 60 N.Y.2d 436, 458 N.E.2d 354, 470 N.Y.S.2d 113 (1983). There, the Court denied Civil Service veterans’ credit to reservists who were summoned to active duty to help maintain mail service during a strike by postal workers in 1970. The Court held:

[U]nder section 6 of Article V of the Constitution, and section 85 of the Civil Service Law, veterans’ credits should be awarded for civil service appointments and promotions only where the applicant’s service as a “member of the armed forces” during a “time of war” was on a full-time basis evidencing a sacrifice in the form of disruption of civilian life and divorce from civilian occupation. It is not enough that an applicant’s service fall within the literal definitions of “member of armed forces” and “time of war” if that service did not significantly interfere with the applicant’s normal employment and way of life (60 N.Y.2d at 448, 470 N.Y.S.2d at 120).

Thus, it appears that the courts are applying a strict construction standard to the civil service preference similar to that they apply tax exemption statutes generally (e.g., 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, based on the foregoing, it is our opinion that reservists who engaged in active duty for training or who were activated for short periods of time (e.g., mail strike service) are not eligible for the alternative veterans exemption pursuant to section 458-a of the RPTL. Reservists, however, who were activated during a time of war and who performed significant, full-time active duty, may qualify for the exemption.

April 18, 1985

Updated: