Volume 3 - Opinions of Counsel SBEA No. 67
Veterans organizations exemption (VFW Post) - Real Property Tax Law, § 452:
A Veterans of Foreign Wars Post is entitled to an exemption pursuant to section 452 of the Real Property Tax Law upon the determination by the assessor that its property is actually and exclusively being used for exempt purposes. If such property is only partially used for exempt purposes, only that portion will be entitled to an exemption.
We have received an inquiry concerning the real property tax exemption for real property owned by veterans organizations, authorized by section 452 of the Real Property Tax Law and its application to property owned by a Veterans of Foreign Wars Post.
All real property in New York State is subject to taxation, special assessments and special ad valorem levies unless specified to be exempt therefrom by statute (Real Property Tax Law, § 300). Section 452 of the Real Property Tax Law provides that real property owned by a Veterans of Foreign Wars Post actually and exclusively used and occupied by it shall be exempt from taxation. The question as to whether such property is so “actually and exclusively” used and occupied by the Post is, in the first instance, a question of fact which must be determined by the assessor.
Subdivision 2 of said section 452 provides that if a portion of such real property is used by any person whose real property would not be entitled to an exemption, such portion shall be subject to taxation and the remaining portion only shall be exempt. It is the opinion of this office that any portion of the building which is actually and exclusively used by the VFW Post and its membership would be exempt from taxation, but that any portion of such building which may be used by the general public would be subject to taxation. It is clear that if any portion of the property is available to the general public (e.g., for wedding receptions, dinners, dances, etc. that portion would be fully taxable (see, 1 Op.Counsel SBEA No. 62).
The Post need not file an application for exemption since such property is exempt as a matter of law if it meets the statutory requirements.
If the assessor determines that any portion of such building is not exclusively used and occupied by the Post, such portion should be placed on the taxable portion of the roll by the assessor. If the Post disagrees with this determination, it may file a complaint on or before grievance day. If dissatisfied with the determination of the local board of assessment review, the Post may seek judicial review of its assessment pursuant to Article 7 of the Real Property Tax Law, or may commence a proceeding pursuant to Article 78 of the Civil Practice Law and Rules. The latter action may be brought only when a claim is made for a total exemption.
Pursuant to subdivision 2 of section 452, real property owned by the Post would be entitled to full exemption, although it, or a portion of it, is used by another corporation or association which would be entitled to an exemption as specified in said subdivision, as long as any money paid to the Post by the using corporation or association does not exceed the amount of carrying, maintenance and depreciation charges of the property, or the portion thereof, as the case may be. This would cover the situation where a Post may wish to allow a building or portion of it to be used by an organization such as the Boy Scouts for meetings or other activities. The use of the Post building by such organizations would not affect its exemption status.
December 27, 1973