The opinion
HON. DAVID S. NELSON County Attorney, St. Lawrence County
This replies to your March 11 letter in which you ask if the St. Lawrence County Board of Legislators may enact legislation which, in effect, would exempt receipts from retail purchases of fuel for use in heating residential properties from the county sales and use tax imposed heretofore by St. Lawrence County pursuant to Tax Law § 1210 .
Article IX, § 2, Subdivision c of the New York State Constitution and Municipal Home Rule Law § 10 (1)(ii) prohibit the amendment of a State statute of general application by local law. The Tax Law is a general law and may not be amended by local law (New York State Constitution, Article IX, § 3[d] [1]).
Tax Law § 1210 , authorizing a county to impose a sales and use tax, provides that imposition of such taxes be identical, except as to rate, with corresponding provisions in Article 28 of the Tax Law, "including the definition and exemption provisions" in said Article. Tax Law § 1115 , contained in Article 28, sets out those transactions the receipts from which shall be exempt from State sales and use tax. Nowhere thereunder is there provision to exempt from the State sales and use tax receipts on retail sales of fuel for use in heating residential properties.
Unless such an exemption is authorized specifically by a general law, the County has no power to legislate tax exemptions. (New York State Constitution, Article XVI, § 1; Matter of London v. Wagner, 22 Misc.2d 360 , 363 ; see also 1975 Op. Atty. Gen. 225.) Enactment of tax laws is a State function; delegation of any part of that power must be made in express terms, it cannot be inferred. There has been no delegation to counties to exempt receipts from retail purchases of fuel for use in heating residential properties from a sales and use tax imposed by counties pursuant to the Tax Law ( Roosevelt Raceway v. Co. of Nassau, 18 N.Y.2d 30 , 37 ; County Securities v. Seaford, 278 N.Y. 34 , 37 ).
Accordingly, we are of the opinion the St. Lawrence County Board of Legislators does not have the power to exempt receipts from retail sales of fuel for use in heating residential properties from a county sales and use tax heretofore imposed pursuant to Tax Law § 1210 .