Can someone get Virginia's local property tax relief for the permanently disabled while working full-time at a $44,000 salary?

Plain-English summary

Arlington County Attorney Stephen MacIsaac asked about a recurring fact pattern. Section 58.1-3210 lets localities provide property tax relief for the elderly and permanently disabled. A homeowner applied for disability-based relief. He had a signed doctor's statement saying he was permanently incapacitated. But he had also been employed full-time at a government agency for more than a decade and was currently earning $44,000 a year. Did he qualify?

The AG concluded that he did not. The statute defines "permanently and totally disabled" as being "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or deformity which can be expected to result in death or can be expected to last for the duration of such person's life." Full-time employment at a substantial salary is, by definition, substantial gainful activity. So the applicant fails the eligibility test, regardless of the doctor's statement.

The AG built the analysis in layers. First, eligibility under § 58.1-3210 involves three considerations: age or disability, income, and net worth. The doctor's statement, the SSA certification, the VA certification, the Railroad Retirement Board certification, or two sworn medical affidavits under § 58.1-3213(D) establish only a prima facie case of disability. They don't end the inquiry.

Second, the statute expressly authorizes the locality to "make any other reasonably necessary inquiry of persons seeking such exemption, ... including qualification as permanently disabled." When the locality has evidence contradicting the disability claim, the locality is free to investigate and make its own determination of whether the person is "unable to engage in any substantial gainful activity."

Third, the AG offered a strong inferential principle: a person's continuous record of past and present employment at a respectable salary is "compelling circumstantial evidence" that the person can engage in substantial gainful activity. That logic is hard to escape: if you are engaging in substantial gainful activity, you are not "unable" to engage in it.

A side issue: Arlington was consulting the Social Security Administration's wage index as one criterion. The AG accepted that as a permissible tripwire to launch investigation, but cautioned, citing a prior AG opinion, that federal income standards cannot replace the fact-specific Virginia statutory determination. A taxpayer earning less than the federal threshold might still be ineligible. A taxpayer earning more might still be eligible. The federal number is a hint, not a substitute.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The local tax relief statutes have been amended several times since 2010. Anyone applying for or evaluating a disability-based property tax exemption today should consult current Title 58.1, Article 2.1, and the local ordinance.

Common questions

Why doesn't a doctor's statement settle the question?
Because the statute requires the person to be "unable to engage in any substantial gainful activity." A doctor's statement that someone is permanently incapacitated establishes a medical impairment, but doesn't necessarily mean the person is unable to work. When a person is in fact working full-time at a substantial salary, the actual evidence of activity outweighs the abstract medical opinion.

What does "substantial gainful activity" mean?
The Virginia statute does not define it. The AG read the plain meaning: regular, salaried, full-time work at a respectable salary qualifies. The phrase is borrowed from federal Social Security disability law (42 U.S.C. § 423(d)).

Can someone be partly disabled and still qualify?
The statute requires "permanently and totally disabled." Partial disability is not enough. The total-disability standard is rigorous and demands inability, not just difficulty.

What if the disabled person works part-time or earns very little?
Then the locality has to make a fact-specific determination. Part-time work at a low wage might or might not be "substantial gainful activity." The opinion's bright line is for full-time work at a substantial salary, which clearly disqualifies. Cases below that threshold require closer analysis.

Can the locality use the SSA's wage index as the deciding criterion?
No. The locality may consult it as a tripwire to investigate, but it cannot become the substitute for the Virginia statutory standard. The Virginia inquiry is whether the person is unable to engage in substantial gainful activity; the federal number is one piece of evidence in that inquiry, not the answer.

Background and statutory framework

The eligibility regime:

• § 58.1-3210. Authorizes localities to provide property tax relief programs for those 65+ or permanently and totally disabled.
• § 58.1-3211. Income and net worth requirements.
• § 58.1-3213(D). Methods of establishing permanent disability: SSA/VA/Railroad Retirement Board certification, SSA certification under 42 U.S.C. § 423(d), or two qualified medical affidavits.
• § 58.1-3213. Also requires the locality to make "any other reasonably necessary inquiry" of applicants, including as to qualification as permanently disabled.
• § 58.1-3217. Definition of "permanently and totally disabled."

Construction note: Exemptions must be strictly construed, but the General Assembly has provided localities flexibility in determining scope.

The interpretive principle: Real-world activity is the best evidence of capacity. Full-time substantial-salary employment is, by itself, substantial gainful activity.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 58.1-3210
• Va. Code Ann. § 58.1-3211
• Va. Code Ann. § 58.1-3213, including subsection (D)
• Va. Code Ann. § 58.1-3217
• 42 U.S.C. § 423(d)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-107-MacIsaac.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 22, 2010

Stephen A. MacIsaac, Esquire
County Attorney, Arlington County
2100 Clarendon Boulevard, Suite 403
Arlington, Virginia 22201

Dear Mr. MacIsaac:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether an applicant for tax relief under § 58.1-3210, who has obtained a signed statement from a doctor stating that the applicant is permanently incapacitated, yet who has been a full-time employee of a governmental agency for over a decade, where he currently earns an annual salary of $44,000, is engaged in "any substantial gainful activity."

Response

It is my opinion that, under the plain language of § 58.1-3210, an individual who is employed full-time and who continues to earn a substantial salary is engaged in "substantial gainful activity" and is, therefore, ineligible for tax relief under § 58.1-3210.

Applicable Law and Discussion

Section 58.1-3210 of the Code of Virginia authorizes localities to "provide for the exemption from, deferral of, or a combination program of exemptions from and deferrals of taxation of real estate ... owned by and [] occupied as the sole dwelling of anyone at least 65 years of age, or if provided in the ordinance, anyone found to be permanently and totally disabled." Although exemptions under § 58.1-3210 must be strictly construed, the General Assembly has provided localities with some flexibility "in determining the scope of the exemptions." The Code imposes three considerations for tax relief: (1) age or disability; (2) income; and (3) net worth. Your inquiry focuses on the disability requirement.

First, as to disability, both the Code of Virginia and Arlington County define "[p]ermanently and totally disabled" as being "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or deformity which can be expected to result in death or can be expected to last for the duration of such person's life." The Virginia Code does not define further what constitutes "substantial gainful activity."

Section 58.1-3213(D) details three ways for a taxpayer to demonstrate permanent disability: 1) certification by the Social Security Administration, the Department of Veteran Affairs, or the Railroad Retirement Board; 2) Social Security Administration certification regarding eligibility for benefits pursuant to 42 U.S.C. § 423(d); or 3) sworn affidavits by two qualified medical doctors attesting that the applicant is "permanently and totally disabled."

A taxpayer who obtains this documentation establishes a prima facie case of a disability. That, however, does not end the inquiry. The statute further provides that the County "shall also make any other reasonably necessary inquiry of persons seeking such exemption, ... including qualification as permanently disabled." Merely obtaining an affidavit from a physician, or using one of the other methods under the statute to demonstrate disability, does not conclusively establish disability. When a locality is aware of evidence that contradicts the applicant's claimed disability, the locality can investigate and reach its own determination of whether the individual truly is "unable to engage in any substantial gainful activity." A person's track record in substantial gainful activity, as manifested by a continuous record of past and present employment at a respectable salary, constitutes compelling circumstantial evidence that this individual can, in fact, "engage in substantial gainful activity."

A prior opinion of this office concluded that an income standard found in a federal statute is not a proper guideline for determining a taxpayer's disability status. You indicate that the County consults the SSA wage index as one of several criteria for determining whether an individual is permanently and totally disabled. You further note that this standard is not used in lieu of the income and net worth requirements of § 58.1-3211. In my view, a taxpayer may earn less than this federal standard and be ineligible for tax relief under § 58.1-3210, or may earn more and remain eligible, depending on the specific facts at hand. The County may consult a federal or other standard, for example as a "tripwire" to launch an investigation of a claimed disability, so long as the borrowed standard does not become a substitute for the fact-specific determination contemplated by § 58.1-3217: whether a particular individual is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or deformity which can be expected to result in death or can be expected to last for the duration of such person's life."

Conclusion

Accordingly, it is my opinion that, under the plain language of § 58.1-3210, an individual who is employed full-time and who continues to earn a substantial salary is engaged in "substantial gainful activity" and is, therefore, ineligible for tax relief under § 58.1-3210.

With warmest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General