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Decision No. 12,902

Appeal of LOUIS D. COLLETTI, on behalf of his daughter Nicole, from action of the Board of Education of the Connetquot Central School District concerning tuition.

Decision No. 12,902

(March 29, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for petitioner, Thomas M. Volz, Esq., of counsel

Edward J. McGowan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from the refusal of the Board of Education of the Connetquot Central School District to deduct from tuition paid for his daughter, a nonresident student, the amount of tax allegedly paid by him on property in the district. The appeal must be dismissed.

Petitioner's daughter is in the 11th grade at the Connetquot High School. In September, respondent notified petitioner that due to a recent change in her address, petitioner's daughter was no longer a resident of the district and was not eligible to remain in the high school. Petitioner and respondent met and agreed that petitioner's daughter could continue to attend district schools as a nonresident student, provided petitioner paid tuition in accordance with the formula in Part 174 of the Regulations of the Commissioner of Education.

On December 2, 1992 petitioner requested that the tuition due be reduced by the amount of taxes paid to respondent by petitioner in his capacity as partner in three real estate ventures owning parcels of property within the district. When respondent denied that request, this appeal ensued.

It is undisputed that petitioner is a partner in three partnerships that own property in the Connetquot district. He claims that he is entitled to have the tuition he pays for his daughter reduced by a portion of the taxes paid by the partnerships on those properties. Education Law '3202(3) provides:

The school authorities of a district or city must deduct from the tuition of a nonresident pupil, whose parent or guardian owns property in such district or city and pays a tax thereon for the support of the schools maintained in such district or city, the amount of such tax. (emphasis supplied)

Thus, pursuant to the plain language of Education Law '3202(3), it is the parent or guardian of the nonresident pupil who must own and pay taxes on property within the district to qualify for the deduction provided by that section. As set forth in Partnership Law '52, however, a partner's only interest in a partnership is his or her share of the profits and surplus. A partner does not "own" the real property held by a partnership; only the partnership owns that property (Matter of Minton Group, Inc., 46 B.R. 222). Moreover, Partnership Law '12 provides, in pertinent part:

1. All property originally brought into the partnership stock or subsequently acquired, by purchase or otherwise, on account of the partnership is partnership property. (emphasis supplied)

2. Unless the contrary intention appears, property acquired with partnership funds is partnership property. . . .

Section 12(2) thus qualifies the ownership by the partnership of property purchased with partnership funds by the phrase "unless the contrary intention appears." A careful examination of each of the pertinent partnership agreements reveals no such intention. In fact, the partnership agreements clearly provide that the real properties are owned by the partnerships and not by the individual partners.

Accordingly, Education Law '3202(3) does not entitle petitioner to a deduction in the tuition paid for his daughter's attendance at Connetquot High School, because petitioner cannot be deemed to own the partnership property upon which the taxes at issue are paid.