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Volume 7 - Opinions of Counsel SBEA No. 103

Opinions of Counsel index

Incorporated volunteer fire company exemption (scope) (special ad valorem levies and special assessments) - Real Property Tax Law, §§ 464, 490:

Real property exempt from taxation pursuant to subdivision 2 of section 464 of the Real Property Tax Law is exempt from special ad valorem levies and special assessments to the same extent as properties exempt from taxation pursuant to one of the sections listed in section 490. [6 Op. Counsel SBEA No. 16 modified].

We have been asked to reconsider our opinion (6 Op. Counsel SBEA NO. 16) regarding the liability of property of an incorporated volunteer fire company for certain special district charges. The property in question has been receiving the exemption provided by subdivision two of section 464 of the RPTL, the relevant part of which provides that eligible fire company property “shall be exempt from taxation and exempt from special ad valorem levies and special assessments to the extent provided in section four hundred ninety of this chapter.”

Section 490 includes a list of RPTL sections to which its provisions apply. This list does not include section 464. Based upon this omission, we stated in a prior Opinion that property of an incorporated volunteer fire company “is fully liable for special ad valorem levies and special assessments” (6 Op. Counsel SBEA No. 16, p.54).

Most of the text of that Opinion consisted of an analysis of subdivision one of section 464 and its application to special ad valorem levies and special assessments. The scope of the exemption provided by subdivision 2 was only briefly considered in the penultimate paragraph. The conclusion with respect to subdivision 2 was based primarily upon the rule of statutory construction that “omissions in a statute cannot be supplied by construction”. Upon reconsideration and further research, however, we believe there are other equally applicable rules which lead to a different conclusion.

First, there are exceptions to the rule against supplying omissions by construction. “Where . . . the legislative intent is clear, an omission in an act may sometimes be considered an inadvertence and supplied by the courts, and words obviously omitted by mistake may be supplied to prevent inconsistency, unreasonableness and unconstitutionality in a statute” (McKinney’s Cons. Laws of N.Y. Annot., Book 1, Statutes, § 363 (1971)).

For example Chapter 880 of the Laws of 1895 described the Court of Special Sessions of the City of New York as a court of record, a designation which was contrary to the State Constitution at that time. Additionally, that Court had never been a court of record. The Appellate Division read into the statute the word “not”, calling its omission “a mere scrivener’s error” (Matter of Duel, 116 App. Div. 512, 101 N.Y.S. 1037, at 1038 (1st Dept., 1906)). Given the reference in section 464 to section 490, we believe that the failure to include section 464 in the list of section 490 may be considered as another “scrivener’s error”.

A second consideration is “the assumption that the Legislature did not deliberately place in the statute a phrase which was intended to serve no purpose” (People v. Dethloff, 283 N.Y. 309, at 315, 28 N.E.2d 850, at 852 (1940)). To deny the extended exemption to fire company property would make meaningless the language in section 464 “and exempt from special ad valorem levies and special assessments to the extent provided in section four hundred ninety of this chapter”. However, it has been said that:

It is the spirit and purpose of a statute which are to be regarded in its interpretation; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although [sic] such construction is contrary to the literal meaning of some provisions of the statute. (People ex rel. Wood v. Lacombe, 99 N.Y. 43, at 49 (1885).)

It seems to us that the intent of the Legislature in enacting subdivision 2 of section 464 was to grant an exemption from special district charges but only  “to the extent provided” in section 490. Treating the quoted phrase in section 464 as surplusage would frustrate that intent. {*}  Section 464 establishes an exemption from certain charges “to the extent provided” in section 490. There is no doubt that if the Legislature had repeated the language of section 490 in section 464, its purpose would have been accomplished. Rather than repeating the language of section 490 verbatim, this reference serves as a form of “legislative short cut” (see, People v. Wallens, 297 N.Y. 57, at 72, 74 N.E.2d 307, at 309 (1947)).

Finally, it should be noted that a conclusion that property which is wholly exempt from taxation pursuant to subdivision 2 of section 464, would also be entitled to exemption from special ad valorem levies and special assessments to the extent provided in section 490, is entirely consistent with the exemption from such charges afforded to other “wholly exempt” properties (see, e.g., §§ 406(1), 408, 420-a, 420-b). Conversely, the exemption provided by subdivision 1 of section 464, being a partial exemption, does not include an exemption from special ad valorem levies and special assessments (see, 6 Op. Counsel SBEA No. 16). That, too, is consistent with the Legislature’s general policy with regard to partial exemptions (see, e.g., §§ 458, 460, 467).

Accordingly, it is our opinion that property exempt from taxation pursuant to subdivision 2 of section 464 is exempt from special ad valorem levies and special assessments to the same extent as property exempt from taxation pursuant to one of the sections listed in section 490. To the extent that 6 Op. Counsel SBEA No. 16 is inconsistent with this conclusion, it is hereby modified.

May 18, 1983


{*}  Arguably, it would be equally appropriate to construe the section to delete by construction only the words “to the extent provided in section four hundred ninety of this chapter” so as to grant a complete exemption from special ad valorem levies and special assessments (see, e.g., RPTL, § 446(1)).

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