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 The opinion may no
longer represent those views if, among other things, there have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
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]). "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[ii][a]; 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.
November 2, 1993
James J. Kirisits, Esq., Town Attorney
Town of Cheektowaga