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Volume 6 - Opinions of Counsel SBEA No. 78

Opinions of Counsel index

Clergymen’s exemption (deacon) - Real Property Tax Law, § 460:

The partial exemption from real property taxation provided by section 460 is not available to a deacon of the Roman Catholic religion.

We have been asked whether a Roman Catholic deacon is entitled to the partial exemption from real property taxation provided by section 460 of the Real Property Tax Law. Section 460 provides in relevant part that:

Real property owned by a minister of the gospel, priest or rabbi of any denomination, an actual resident and inhabitant of this state, who is engaged in the work assigned by the church or denomination of which he or she is a member, . . . shall be exempt from taxation to the extent of fifteen hundred dollars.

In considering whether a deacon comes within the ambit of this statute, it must be remembered that tax exemption statutes are construed strictly against those seeking exemption. The intention of the Legislature to grant exemption in a given situation must be too plain to be mistaken, and any doubt must be resolved in favor of taxation (Herkimer County v. Village of Herkimer, 251 A.D.126, 295 N.Y.S. 629, aff’d, 279 N.Y.560, 18 N.E.2d 854; City of Lackawanna v. State Board of Equalization and Assessment, 16 N.Y.2d 222, 212 N.E.2d 42, 264 N.Y.S.2d 528).

In view of this principle of strict construction, we must conclude that the Legislature intended, by its use of the word “priest” in describing the persons entitled to exemption pursuant to section 460, to restrict application of that section, within the Catholic church, to priests. A deacon is different from a priest and ranks lower in the hierarchy of the Church. The New Catholic Encyclopedia describes a deacon’s powers as follows:

to minister at the altar, to baptize, and to preach. Of these powers, the last two can be exercised only to a limited degree. The deacon is only the extraordinary minister of solemn Baptism, and he may exercise this function only with special authorization. Similarly, the deacon may not preach without explicit authorization. Special authorization is likewise required, at least by custom, for the deacon to distribute Holy Communion to the faithful, although the function may be regarded as pertaining properly to his office. Only his ministration at the altar in solemn Mass does the deacon exercise the power of his order apart from any ordinary restriction.

Section 460 contains no definition of the word “priest” as used therein, and we are unable to find any case law construing the term. In the absence of any such authority, we believe the word must be given its commonly understood meaning and cannot be expanded by administrative interpretation to include someone entirely distinct from a priest, such as a deacon.

Some guidance as to legislative intent in this area may be found in section 2 of the Religious Corporations Law, which contains a definition of the word “clergyman” (note that § 460 is entitled “Clergy”). Section 2 provides in relevant part that:

The term “clergyman” and the term “minister” include a duly authorized pastor, rector, priest, rabbi, and a person having authority from or in accordance with the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue.

This definition does not include a deacon. He cannot preside over and direct the spiritual affairs of the congregation; this function is performed by priests (see, 4 Op.Counsel SBEA No. 70 regarding cantors). In fact, a deacon requires explicit authorization to carry out nearly all of his specific duties. Further, it is noteworthy that section 2 employs the terms “pastor,” “rector,” and “priest,” which are clearly exclusive of a lower ranking individual such as a deacon. Based upon the foregoing, it is our opinion that the partial exemption provided by section 460 is not available to a Roman Catholic deacon.

July 6, 1979

Updated: