Volume 11 - Opinions of Counsel SBRPS No. 77
Alternative veterans exemption (residence and occupancy requirement) (domicile); Persons with disabilities and limited incomes exemption (residence and occupancy requirement) (domicile); School tax relief [STAR] exemption (residence requirement) (domicile); Senior citizens exemption (residence and occupancy requirement) (domicile) - Real Property Tax Law, §§ 425, 458 a, 459-c, 467:
Exemptions available to an owner’s “legal” or “primary” residence are limited to the owner’s domicile, and the assessor, as the initial trier of fact, may make that determination in the first instance. While a person can have several residences, he or she may have but one domicile and no single factor determines such domicile.
We have received an inquiry concerning the persons with disabilities and limited incomes exemption (Real Property Tax Law, § 459-c), specifically the statutory requirement therein that the property for which the exemption is sought be “the legal residence of . . . the disabled person” (subd. 5(c)). An assessor denied an exemption to a woman who owns property in the Town of A, but who has been living “temporarily” for the past three years in the Town of B with her ill mother. The woman appealed to the board of assessment review which reinstated the exemption. The assessor asks how long a “temporary” absence from the residence is allowed and what forms of proof of residency “carry the most weight.”
In our opinion, the statutory inclusion of the adjective “legal” to modify “residence” in section 459-c and other exemptions (e.g., RPTL, § 467(3)(d)) evinces a legislative intent that the property must be the domicile [or domicil] of the applicant (5 Op.Counsel SBEA No. 5). We hold the same opinion regarding other exemptions which may be granted only to an applicant’s “primary residence” (e.g., RPTL, §§ 425(3)(b), 458 a(1)(d)).
As we discussed in the aforecited opinion as well as in 11 Op.Counsel SBRPS No. 18, while a person can have more than one residence, he or she may have only one domicile. “A domicil is one’s principal and permanent place of residence where one always intends to return to from wherever one may be temporarily located, and from which one has no present intention of moving” (49 NY Jur2d, Domicil and Residence, § 2).
Absent statutory regulation, no set period of residence or specified length of time in a particular place is required to establish a domicile. . . . Residence without the requisite intent to remain does not effect a change in domicil no matter how long the residence is continued, and, without more, the fact that one absents himself or herself from a domicil for an extended period of time does not prove a change of domicil (ibid., § 16).
“Temporary removal for a temporary purpose, with intent to return to the old home when that purpose has been accomplished, leaves the domicil unchanged” (ibid., § 27). {1}
“If the facts are undisputed and allow only one inference, the question of domicil is one of law. The question of domicil may also be one of fact rather than of law, and it frequently depends upon a variety of widely differing circumstances” (ibid., § 49).
In determining eligibility for exemptions, the assessor is the initial trier of fact. If the assessor decides to deny an exemption, for instance, on the basis that the facts do not prove the domicile of the applicant, the taxpayer (as here) has the right to seek administrative review. The board of assessment review then becomes the trier of fact. {2} Had the board sustained the assessor’s denial, the taxpayer could have sought judicial review where the judge would have become the trier of fact. Obviously, again as occurred here, different triers of fact may reach different conclusions as to domicile (see, Buzzard v. Tax Appeals Tribunal, 205 A.D.2d 852, 613 N.Y.S.2d 294 (3d Dept., 1994)).
Intention [of domicil] may be proved by any relevant evidence. However, the intention to make a particular place one’s domicil is often undisclosed, making it difficult to prove by an adverse party. *** [E]ach case must be decided upon its peculiar circumstances, and the court’s conclusions must be drawn from all the circumstances. All the acts, declarations, and interests must be considered, from which intention must be ascertained. Typically, a totality-of-the-evidence-approach is employed, under which no single factor is controlling (49 NY Jur2d, Domicil and Residence, § 50, emphasis added).
As stated in 11 Op.Counsel SBRPS No. 18, in the School Tax Relief [STAR] Exemption Assessor’s Guide in the Assessor’s Manual (Vol.4, § 4.01, p.5.43 (1/1/04)), we reiterate that “no single document . . . absolutely establishes primary residency,” but list some acceptable forms of proof of residency. {3} Similarly, the legal encyclopedia quoted at length above, lists voter registration (§ 58), the conduct of business and financial transactions (§ 59), payment of taxes (§ 60), automobile registration and driver’s license (§ 61), and church, social, and club activities (§ 62) as conduct which may evince domicile.
In conclusion, and in answer to the specific questions, the length of absence from a property is apparently not determinative of domicile. Intent is critical. Again, no single fact can prove or disprove domicile. In this case, there were facts upon which a trier of fact could determine that the applicant was a legal resident of either Town A or of Town B (e.g., the applicant’s retention of her Town A property being some evidence of her intent to retain it as her domicile). The assessor and board of assessment review reached different conclusions. A town cannot appeal a determination of its board of assessment review (1 Op.Counsel SBEA No. 83), but that board’s determination does not bind the assessor in a subsequent year. Should the exemption applicant/recipient seek renewal of her exemption next year, the assessor should consider the facts anew.
July 6, 2005
{1} Here, the applicant has allegedly been living in Town B while caring for her “terminally ill” mother. The applicant’s argument is that after her mother’s death, she intends to return to Town A.
In another situation concerning the exemptions in issue here, it has been suggested that chapters 42 and 132 of the Laws of 2005 may have rendered some exemption recipients, who were displaced by flooding from their homes, ineligible to receive their exemptions on the 2005 assessment roll. Those enactments authorized the county legislative bodies in 21 named counties to change their 2005 taxable status dates from March 1 (RPTL, § 302(1)) to April 15 so as to recognize the possible impact on real property values of flood damage, which occurred in early April 2005, in this year’s assessed valuations. We disagree with this assertion. In addition to there being no evidence of legislative intent in chapters 42 and 132 of which we are aware affecting 2005 exemption eligibility, in our opinion, an involuntary, temporary displacement from a residence due to flooding (or otherwise) does not dictate a change of domicile. Exemptions based on domicile, which were warranted on March 1, 2005, would still be warranted on April 15, 2005 unless it can be shown that the owner changed his or her domicile in the interim (see, 28 C.J.S., Domicile, § 14; 25 Am Jur2d, Domicil, § 16).
{2} It is because assessors may disagree with some or even all of the determinations of the board of assessment review that the language of the assessor’s verification on the final assessment roll differs from that on the tentative roll (contrast RPTL, §§ 514 and 505).
{3} Those listed are: mailing address and property address match, driver’s license, NYS Income Tax return, utility bills or 911 service listing, voter registration card, social security statement, automobile registration, and deed or recent tax bill.