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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (authority of village to impose a tax on renters of real property); (authority of village to impose a tax on rents paid by tenants of real property within the village)
TAXES -- Occupancy Tax (authority of village to impose on renters of real property) -- Income Tax (authority of village to impose on rents paid by tenants of real property within the village)

STATE CONSTITUTION, ART XVI, §1; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(8): In the absence of State legislative authority, a village may not impose a tax on rents paid by tenants of real property located within the village or an occupancy tax on renters of real property within the village.

You ask whether a village may impose either a tax on rents paid by tenants of properties located within the village or an "occupancy tax" on renters of real property within the village.

We are aware of no state statute authorizing a village to impose a tax on rents paid by tenants of real property within the village or a general occupancy tax on renters of real property (cf., e.g., Tax Law, §1202-a et seq., authorizing various local governments to impose hotel or motel occupancy taxes; Public Housing Law, §110, authorizing certain villages to impose an excise tax on occupancy of certain premises in order to make subsidies to a housing authority; McKinney's Unconsolidated Laws, §9447, authorizing New York City to impose a commercial rent or occupancy tax). Moreover, a village may not, by local law, impose such a tax. It is well settled that the power to assess and collect taxes is vested exclusively in the State Legislature and that a municipal corporation may exercise authority in this area only if it has been expressly delegated to the municipal corporation by the Legislature (NY Const, art XVI, §1; Sonmax, Inc. v City of New York, 43 NY2d 253, 401 NYS2d 173; Mobil Oil Corp. v Town of Huntington, 85 Misc 2d 800, 380 NYS2d 466; Kessell v Purcell, 119 Misc 2d 449, 463 NYS2d 384; see also Municipal Home Rule Law, §10[1][ii][a][8], authorizing local governments to adopt and amend local laws relative to the levy and administration of local taxes "authorized by the Legislature"; 1990 Opns St Comp No. 90-39, p 88; 1984 Opns St Comp No. 84-49, p 60). Therefore, in the absence of State legislative authority, a village may not, by local law, impose either of the proposed taxes.

December 23, 1991
David J. Gilmartin, Esq., Village Attorney
Village of Southampton