Opinion 93-27
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The opinion may no longer represent those views if, among other things, there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. |
LOCAL LAWS -- Taxes and Assessments
(superseding sales tax provisions)
SALES TAX -- Use (for reduction of townwide
taxes within town outside village area)
MUNICIPAL HOME
RULE LAW, §10(1)(ii)(a)(8); TAX LAW, §1262(c): When a town and the villages
within the town all elect to receive their shares of county sales tax in cash,
the town may not use its share to reduce townwide taxes in the area of the town
outside villages. A town may not adopt a local law to provide that its cash
share be so used.
You have asked us to advise you
as to whether the Town of Cheektowaga may use its share of county sales tax
revenues to reduce the townwide general fund tax levy against only those town
properties located outside villages within the town. You state that the town
presently uses its share of the revenues to reduce taxes levied for part-town
highway purposes. For purposes of this inquiry, we assume the town and all
villages within the town have elected to receive their shares of county sales
tax in cash.
Tax Law, §1262(c), as amended by L 1984,
ch 850, provides that, if a town and all villages within the town elect to
receive their shares of county sales tax in cash, the town shall apply its share
to "reduce taxes levied for part-town activities". If any balance remains, the
town may apply the remainder for any of the following purposes or any
combination thereof: (a) to reduce general town taxes; (b) to reduce county
taxes levied in the area of the town outside the villages; or (c) to finance
part-town activities. The term "part-town activities" is defined for this
purpose to mean, in pertinent part, "(a)ctivities of town government, including
highway programs, which are chargeable to the area of the town outside of
villages ..." (Tax Law, §1262[f][4]). "General town taxes" is defined as
"[t]axes levied for any town purpose, including highways, upon the entire area
of a town". Thus, the reduction of townwide taxes within the area of the town
outside of villages is not a purpose under section 1262(c) for which the town
may use its cash share of county sales tax when all villages within the town
have also elected to receive their shares in cash (see 1983 Opns St Comp No.
83-25, p 29).
Further, the levy, collection and
administration of sales tax is not a matter within a town's home rule authority
(see Municipal Home Rule Law, §10[1][ii][a][8]; Town of Moreau v
County of Saratoga, 134 Misc 2d 380, 510 NYS2d 990 affd 142 AD2d 864, 531
NYS2d 61; 23 Opns St Comp, 1967, p 383). Therefore, in our opinion, the town may
not adopt a local law superseding the provisions of section 1262 to provide that
the town's cash share of county sales tax be used to reduce townwide taxes on
properties outside the villages.
The town, however,
may elect not to receive its share of sales tax in cash. In the event the town
so elects and the villages within the town continue to elect to receive their
shares in cash, "the amount allocated to the town ... shall be applied to reduce
county taxes and general town taxes levied upon real property in the area of
the town outside such village[s]" (emphasis added; Tax Law, §1262[c]).
Therefore, in that circumstance, the town's share of county sales tax could be
used to reduce townwide general fund taxes against those properties in the area
of the town outside villages (Opn No. 83-25, supra).
November 2, 1993 James J. Kirisits, Esq., Town Attorney Town of
Cheektowaga
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