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Volume 6 - Opinions of Counsel SBEA No. 109

Opinions of Counsel index

Nonprofit organizations exemption (animal societies) (burial grounds) - Real Property Law, § 450; Real Property Tax Law, §§ 420, 446:

Real property of an organization organized and conducted exclusively for the enforcement of laws relating to animals may qualify for an exemption pursuant to section 420 of the Real Property Tax Law, including a portion of the property which is used as a burial ground for dead animals. However, an organization organized and conducted exclusively as an animal burial ground does not qualify for exemption.

There are two burial grounds for animals in Orange County, one owned and operated by a Humane Society, and the second being privately owned. The second is on a parcel of ground separately deeded for the specific purpose of burial of animals. The question is whether the property is exempt from taxation.

Section 446 of the Real Property Tax Law provides that real property used occupied for cemetery purposes is entitled to the exemption provided in the Real Property Law. Section 450 of the Real Property Law exempts from taxation land actually used and occupied for “cemetery” purposes. Although our research discloses no New York case defining the term “cemetery,” we conclude that the statutes in relation thereto are concerned with the burial of deceased human remains, not animal remains. The New York Court of Appeals did refer to a cemetery as the place for burial of dead “persons” in Moore v. United States Cremation, 275 N.Y. 105, 112, 9 N.E.2d 795. Support for our contention is also found in subdivision (a) of section 1502 of the Not-For-Profit Corporation Law which defines the term “cemetery corporation” as “any corporation . . . for the disposal or burial of deceased human beings. . . .” There is case law in other states to indicate that the term “cemetery” refers to the place where dead bodies of human beings are buried (In re Hillcrest Memorial Gardens, Inc., 146 W. Va. 337, 119 S.E.2d 753; City of Stockton v. Weber, 98 Cal. 433, 33 P. 332; Wood v. Midfield Oil Co., Tex. Civ. App., 89 S.W.2d 1086). Likewise, section 420 of the Real Property Tax Law, which grants an exemption to a nonprofit organization organized and conducted exclusively for cemetery purposes, does not, in our opinion, extend to a burial ground for animals.

Although the disposal of animal carcasses is restricted (see, e.g., Environmental Conservation Law, § 17-1705; Navigation Law, § 33; Agriculture and Markets Law, § 377), these restrictions, in and of themselves, do not establish an exemption from taxation. All real property is taxable unless specifically exempted therefrom by law (Real Property Tax Law, § 300).

An alternative possibility for exemption is contained in the provisions of section 420 of the Real Property Tax Law, available to nonprofit organizations exclusively organized or conducted for the enforcement of laws relating to animals. This provision was added to a predecessor of section 420 as part of chapter 908 of the Laws of 1896. The exemption has been interpreted to extend to the American Society for the Prevention of Cruelty to Animals (People ex rel. Andrews v. Cameron, 140 App.Div. 76, 124 N.Y.S. 949, aff’d, 200 N.Y. 585,94 N.E. 1096). Both this case and an opinion of the State Comptroller (6 Op.State Compt. 125) indicate that the act of incorporation or certificate of incorporation of the organization must be examined to ascertain if the organization qualifies as a tax exempt entity organized and conducted exclusively for the enforcement of laws relating to animals (but see discussion of organization purposes in Mohonk Trust v. Board of Assessors of the Town of Gardiner, 47 N.Y.2d 476,392 N.E.2d 876,418 N.Y.S.2d 763, in 6 Op.Counsel SBEA No. 101). In our opinion, assuming that a Humane Society satisfies the requirements of section 420, an exemption may be granted to its property, including a portion devoted to the burial of dead animals. However, an organization, the sole purpose of which is to provide a burial place for dead animals, does not qualify as an organization entitled to exemption pursuant to section 420.

May 23, 1979

Updated: