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Volume 9 - Opinions of Counsel SBEA No. 5

Opinions of Counsel index

Senior citizens exemption (income requirement) (sliding scale-change in income increment(s)) - Real Property Tax Law, § 467:

As of January 1, 1990, a municipality offering the sliding scale option of the senior citizens exemption must use $600 income increments. Where a pre-existing local law, ordinance or resolution adopting sliding scale reproduces the former $500 income increments in its text, new legislation, facially consistent with State law, should be enacted.

Section 467 authorizes municipal corporations, after a public hearing, to enact a local law, ordinance or resolution granting a partial exemption (i.e., 50%) to real property owned by aged persons satisfying certain income, ownership and residency requirements. A municipality granting the exemption must also adopt a maximum income ceiling within the law’s limitations (currently between $3,000 and $12,025).

A municipality allowing the exemption also has the option to grant a reduced (or sliding scale) exemption to otherwise qualified owners whose incomes exceed the local income ceiling by a limited amount (RPTL, § 467(l)(b)). Chapter 588 of the Laws of 1989 amends this so-called “sliding scale” option of the senior citizens exemption. As enacted in 1983, {*} the sliding scale included $500 income increments, thereby authorizing local governments to extend the program to provide a minimum exemption of 20 percent to an owner whose income exceeded the local income ceiling by more than $2,500 but less than $3,000. The 1989 amendment, chapter 588, increases the income increments set out in section 467 to $600, with a result that in municipalities which adopt the sliding scale, the minimum 20 percent exemption applies to a person whose income exceeds the local ceiling by more than $3,000 but less than $3,600. However, the 1989 amendment contains no explicit provision as to how this change in State law affects previously adopted local laws, ordinances and resolutions adopting the sliding scale based upon the $500 income increments.

The State Constitution (Art. XVI, §1) requires that “[e]xemptions from taxation may be granted only be general laws.” Section 467 of the RPTL is a general law, and, as we discussed in 8 Op.Counsel SBEA No. 120 (also construing the sliding scale), a municipality “may exercise only those options with respect to the aged exemption that have been made available by the State Legislature....”

As of January 1, 1990, the only sliding scale option available for adoption by municipal corporations will be that which provides for $600 increments. Therefore, as to assessment rolls prepared on the basis of a taxable status date on or after January 1, 1990, municipal corporations which offer the sliding scale senior citizens exemption option must use $600 income categories.

Chapter 588 included no savings clause as to previously adopted sliding scale local laws, ordinances and resolutions (compare L.1985, c.440, § 4, which continued the effectiveness of prior sliding scale local options when, as previously noted, the law’s provisions were merged into section 467). In addition to this absence, the 1989 amendment does not specifically repeal earlier locally adopted sliding scale options based on the $500 income categories. Since repeals by implication are not favored (Ball v. State, 41 N.Y.2d 617, 363 N.E. 2d 323, 394 N.Y.S.2d 597 (1977); McKinney’s Statutes, §391), we would not expect a court to deem a previously adopted $500 increment local option to be repealed by the 1989 enactment. Instead, the Municipal Home Rule Law (§51) “encourages reconciliation of State and local laws...” (People v. New York Trap Rock Corp., 57 N.Y.2d 371, 378, 456 N.Y.S.2d 711, 714 (1982)). Therefore, in our opinion, a previously adopted local law, ordinance or resolution enacting the sliding scale pursuant to section 467(l)(b) of the RPTL remains valid, but the municipal corporation must use the new $600 income increments.

Previously adopted local laws could have been drafted in two ways. The first would have incorporated State law by reference (e.g., “RPTL, section 467(l)(b) is hereby adopted”). If so, no apparent inconsistency exists between local and State legislation, and the $600 increments may be considered to be in effect. Where, however, the local legislation reproduced the $500 scale, the local legislation will be in conflict with State law. And although we believe that localities may simply incorporate the new $600 increments in their administration of the program, this would result in local activity which is inconsistent with local legislation. This would result in another inconsistency, since the local law would be facially inconsistent with State law. Accordingly, we recommend enactment either of a new local option or an amendment to the current option, consistent with the amended State law.

Naturally, a municipality, which objects to increasing the sliding scale income limit by $600 (the net effect of the new $600 increments), may reduce its basic (50%) income ceiling, or even repeal sliding scale in its entirety (see 4 Op.Counsel SBEA No. 104).

December 19, 1989


{*}  Originally enacted as section 467-d of the RPTL (L.1983, c.991), the sliding scale provisions were later merged into section 467 as subdivision (1), paragraph (b) (L.1985, c.440).

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