Opinion 92-7


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


FOREIGN FIRE INSURANCE TAXES -- Exempt Volunteer Firemen's Benevolent Association (use of tax moneys to pay debts incurred in the operation of a volunteer's business)
WORDS AND PHRASES -- "Relief" (meaning of for purposes of special acts incorporating volunteer firemen's benevolent associations)

INSURANCE LAW, §§9104, 9105: The Fishkill Exempt Firemen's Benevolent Association may expend foreign fire insurance tax moneys to pay debts incurred in the operation of volunteer firefighter's business if the Association determines, based on the entire financial circumstances of the firefighter and his or her family, that the firefighter is indigent and that the expenditure will provide personal financial relief to the firefighter and his or her family.

You ask whether the Fishkill Exempt Firemen's Benevolent Association may expend foreign fire insurance tax moneys to aid a volunteer firefighter in the running of his business. You state that the firefighter is behind in several payments to creditors and is requesting funds to help him through this "slow period". For purposes of this opinion, we assume the firefighter is not disabled.

Insurance Law, §§9104 and 9105 govern the distribution and use of foreign fire insurance tax moneys, except as otherwise provided in any special law. Therefore, when an exempt firemen's benevolent association has been created by special act of the State Legislature and is authorized to receive direct payment of foreign fire insurance tax moneys, the moneys may be expended only in the manner prescribed by the special act (see 1991 Opns St Comp No. 91-29, p 84; 1989 Opns St Comp No. 89-11, p 23; 1983 Opns St Comp No. 83-120, p 151; 1981 Opns St Comp No. 81-328, p 357).

The Fishkill Exempt Firemen's Benevolent Association was incorporated by chapter 640 of the Laws of 1965. Section 7 of that law authorizes the Association to receive foreign fire insurance tax moneys and to use such moneys as follows:

... Such taxes shall only be used for the care and relief of disabled or indigent volunteer and exempt firemen and their families.

Thus, the Association may expend such moneys to aid a volunteer firefighter's business only if the expenditure constitutes the care and relief of a disabled or indigent volunteer and exempt firefighter and his or her family.

The special act incorporating the Association does not define the term "indigent". In the absence of a statutory definition, the courts have construed the word "indigent" to mean "destitute of property or means of comfortable subsistence; needy; poor; in want; necessitous" (see Healy v Healy, 198 Misc 688, 99 NYS2d 874; see also Brown v Upfold, 204 Misc 416, 123 NYS2d 342). Similarly, we have previously concluded that the phrase "indigent fireman", as used in special acts incorporating exempt firemen's benevolent associations, generally means a firefighter who is poor or needy (see 1980 Opns St Comp No. 80-86, p 28). Since there are no generally applicable objective standards for determining when an individual is "poor" or "needy", we have also recommended that a benevolent association adopt its own uniform standards, consistent with the commonly understood meaning of the term "indigent", for determining indigency in connection with eligibility to receive foreign fire insurance moneys (see Opn No. 80-86, supra).

A finding of indigency cannot be premised solely on the fact that the firefighter's business is experiencing financial difficulties. The firefighter may, in fact, have other sources of income or assets which preclude a determination of indigency. If a volunteer firefighter is determined to be indigent, however, then foreign fire insurance tax moneys may be expended for the care and relief of the firefighter and his or her family.

The special act incorporating the Association also does not define the phrase "care and relief", nor are we aware of any judicial construction of that phrase. We note, however, that at least one court has observed that the word "'relief' signifies the 'removal in whole or in part of any evil or hardship that afflicts body or mind; especially, the partial removal of pain, grief, want, care, anxiety, toil, or anything distressing or burdensome, so that some care is obtained'" (In re McCormick's Estate, 169 Misc 672 at 675, 8 NYS2d 179 at 183). Thus, the word "relief" seems broad enough to encompass payment of debts incurred in the operation of an indigent or disabled volunteer's business.

As noted, however, the special act limits the use of foreign fire insurance tax moneys to the care and relief of indigent or disabled volunteer firefighters and their families. Therefore, we believe that expenditures of such moneys must provide personal financial relief to the indigent or disabled firefighter and his or her family, and not merely maintain the viability of the firefighter's business. In our view, any determination of whether such payment provides personal relief must be based on the entire financial circumstances of the indigent firefighter and his or her family. Moreover, in view of the broad connotation of the word "relief", it is our opinion that the Association should adopt uniform guidelines establishing the circumstances or types of need that warrant an expenditure of foreign fire insurance tax moneys for the "relief" of an indigent or disabled firefighter and his or her family.

March 20, 1992
Peter D. Phillips, Treasurer
Fishkill Exempt Fireman's Benevolent Association