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Volume 7 - Opinions of Counsel SBEA No. 90

Opinions of Counsel index

Taxes (collection-installment) (limitation to senior citizens) - Real Property Tax Law, §§ 928, 972:

A county legislature may not adopt a local law or resolution to permit installment payment of taxes by senior citizens only.

We are asked whether section 928 of the Real Property Tax Law empowers a county legislature to authorize installment payment of taxes by senior citizens only. That section authorizes counties to permit two installment payments of “every tax in excess of [$20] levied by the board”. The program is implemented upon adoption of a resolution by a two-thirds vote of the county governing body.

Both the plain language of section 928 and the general limitation on the powers of counties with respect to taxation (see, e.g., Municipal Home Rule Law, § 10(1)(ii)(a)(9)) lead us to the conclusion that section 928 would not empower a county to provide for installment payment of taxes by senior citizens only.

Two rules of statutory construction, applicable to tax statutes, should be considered. First, because the power of taxation is essentially a State function, any delegation of power to a local government with respect thereto must be express and cannot be inferred (County Securities v. Seacard, 278 N.Y. 34, 15 N.E.2d 179 (1938); Slewett and Farber v. Board of Assessors, 97 Misc.2d 637, 412 N.Y.S.2d 292 (S.Ct., Nassau Co., 1979), mod. 80 A.D.2d 186,438 N.Y.S.2d 544 (2d Dept., 1981). mod. 54 N.Y.2d 547, 430 N.E.2d 1294, 446 N.Y.S.2d 241 (1982)). Second, a tax statute must be given the practical interpretation of an ordinary person reading it (Application of New York Telephone Co., 257 App. Div. 415, 13 N.Y.S.2d 359 (4th Dept. 1939), aff’d 282 N.Y. 667, 26 N.E.2d 805 (1940)).

The language of section 928 grants counties the right to adopt a resolution permitting payments in installments of “every tax in excess of [$20].” In our opinion, this grant is an “all or nothing” approach. That is, if all taxpayers may not make payments in installments, none may. Furthermore, an ordinary person reading this statute would logically assume that the term “every tax” is universal rather than selective in nature.

In contrast, consider the fact that where the Legislature has sought to limit the application of a provision of the Real Property Tax Law to a specific group of taxpayers or properties, it has expressly provided therefor. (See, e.g., § 467, empowering municipal corporations to grant partial exemptions from taxation to senior citizens, upon certain requirements being met; and Article 15, providing alternative methods of tax payment in certain named counties.)

We believe that the State Legislature could lawfully authorize counties to provide for installment payment of taxes by senior citizens only. However, it is also our opinion that a county legislature may not, under existing law, so limit a resolution adopted pursuant to section 928. Where the language of a statute is free of ambiguity, as appears to be the case of section 928, powers not expressly granted by the Legislature will not be inferred (Ocean Beach Ferry Corp. v. Incorporated Village of Ocean Beach, 298 N.Y. 30, 80 N.E.2d 137 (1948)).

There is an alternate statutory procedure for installment collection of county, town and school district charges. That procedure is initiated by a county local law whereby the county agrees to become the collection agency for taxes paid in installments (Real Property Tax Law, § 972). However, since town and school district resolutions adopted under this program must permit payments in installments “of taxes. . . in excess of [$50] . . . upon any parcel of real property” (§§ 973(1), 1336(1)), the county may not, in our opinion, use this procedure to limit the right to pay in installments to senior citizens only.

June 5, 1981