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Volume 8 - Opinions of Counsel SBEA No. 53

Opinions of Counsel index

Taxes (levy for county purposes) (second or supplemental levy) - County Law, § 360; Municipal Home Rule Law, §§ 10, 34; Real Property Tax Law, §§ 900, 1335:

Counties have no general statutory authority to impose a second or supplemental tax levy in one fiscal year.

The power of taxation is an essential and inherent attribute of sovereignty, belonging as a matter of right to every independent government (Cooley Taxation, v.l, § 37 (4th ed., 1924)). In County Securities v. Seacord, 278 N.Y. 34, 15 N.E.2d 179 (1938), the Court of Appeals held that the power of taxation is a State function. The delegation of any part of that power to a subdivision of the State must be made in express terms: “It cannot be inferred.” (278 N.Y. at 37). The same Court has stated that it “is axiomatic that local governmental units are creations of, and exercise only those powers delegated to them by, the State” (Seaman v. Fedourich, 16 N.Y.2d 94, at 101, 209 N.E.2d 778, 262 N.Y.S.2d 444, at 449 (1965)).

The State Legislature may delegate its taxing power to local governments in the manner prescribed by the State Constitution. Where the Legislature does so, any taxes imposed must conform to the authorization conferred. If a local taxing act exceeds that authority, it is invalid (58 N.Y.Jur. (Rev.), “Taxation”, § 16 (1977) and the cases cited therein, including United States Steel Corp. v. Gerosa, 7 N.Y.2d 454, 166 N.E.2d 489, 199 N.Y.S.2d 475 (1960)). In City of Buffalo v. Cargill, Inc., 44 N.Y.2d 7, 374 N.E.2d 372, 403 N.Y.S.2d 473 (1978), the Court of Appeals reaffirmed this position stating:

[t]he tax laws are creatures of the Legislature and changes in these laws or the establishment of specific rights under these laws may not be inferred but must be made in clear and express terms (citations omitted]. (403 N.Y.S.2d, at 478).

That delegated authority with regard to the calculation and levy of county taxes can be found in the County Law, Article 7, and in the Real Property Tax Law, Article 9.

The County Law establishes a January 1 through December 31 fiscal year (§ 352). Budgets are to be established pursuant to sections 353 through 360, with a final budget adopted “not later than December [20th]” (§ 360(2)). Section 360 further provides that when the “appropriation resolution” is passed, “the board of supervisors shall provide for the raising of . . . taxes required by such budget in the manner and within the time prescribed by law.”

Real property taxes are levied and extended by the county legislative body {*} pursuant to the provisions of Real Property Tax Law, section 900. Provisions for the annexation or filing of the warrant and for the tax roll are included in section 904 of the Real Property Tax Law.

Where, for some reason, there is a deficiency in the county’s budget, provision is made in section 29.00 of the Local Finance Law for the issuance of “budget notes.” These notes may be issued in amounts and in accordance with the procedures set forth in section 29.00. (Should the amounts allowed to be raised pursuant to section 29.00 be insufficient to meet the county’s budget deficit, then special legislation would be needed. An example of such legislation is chapter 880 of the Laws of 1982 (S.10364, A. 12264), effective July 29, 1982, which allowed Seneca County to issue as much as $1,300,000 in serial bonds (Local Finance Law, § 21.00).)

Local governments may adopt local laws “not inconsistent with the provisions of this constitution or any general law” relating to certain enumerated subjects including “the levy, collection and administration of local taxes authorized by the legislature . . ., consistent with laws enacted by the legislature” (N.Y.Const., Art.9, § 2(c)(ii)(8)). The State Legislature implemented the provisions of Article 9 of the Constitution through the enactment of the Municipal Home Rule Law (L.1963, c.843, as amended).

The Municipal Home Rule Law, section 10(1)(ii)(a)(8) limits the home rule powers of a county with regard to local laws relating to the “levy and administration of local taxes.” The County may only act with regard to those “local taxes authorized by the legislature.” The real property tax, a local tax which the Legislature has authorized counties to levy, includes a statutory plan for annual county budgets and the annual levy of this tax (County Law, §§ 352 et seq.; Real Property Tax Law, §§ 900 et seq.). The power to change this general statutory framework must be deemed vested in the State Legislature. It cannot be inferred to be granted to counties by the Municipal Home Rule Law.

The Municipal Home Rule Law, section 34(3)(a) limits the scope of a county charter or county charter law relating to the “imposition” of “taxes or benefit assessments” to those which are “in accordance with the provisions of this chapter or with other laws enacted by the legislature.” These may “not supercede any general or special law enacted by the legislature”, except as provided above. Thus, without specific authorization, such a provision could not be included in a county charter or county charter law adopted pursuant to section 34(3)(a).

By way of contrast, there is provision in section 1335 of the Real Property Tax Law for a supplemental assessment roll and the imposition of a portion of the tax levy for certain school districts in the second half of a school year. This is in addition to the September levy of school taxes (for non-city districts) provided for in section 1306 of the Real Property Tax Law. There is no similar grant of authority with regard to town or county taxes.

Thus, it is our opinion, that counties are without the power to adopt a local law, county charter or county charter law to levy a second or supplemental tax for any fiscal year.

September 2, 1982

{*}  Although RPTL, section 900, refers specifically to a “board of supervisors”, by virtue of section 150-a(2) of the County Law such reference is “deemed to include the elected county legislative body, by whatsoever name designated which . . . shall have been established in place of the board of supervisors”.