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Is Essex County bed tax expansion legal?

October 15, 2015
Lake Placid News

To the editor:

Essex County has gone ahead and expanded its bed tax to include essentially any rented property. As I pointed out in a previous letter to the editor, there may be a legal issue regarding the expansion.

I live in Franklin County and have a seasonal rental property there. Franklin County has been pursuing a bed tax for the first time, and therefore I have been following the issue closely and done a good deal of research. Franklin County also had intended to go after all rentals in its recently passed bill, but I pointed out at a public hearing that it had wording in its bill that excludes most private property rentals.

From what I have learned, in order for a local government to enact local tax legislation like this, it must first get permission from the state legislature. That legislation specifies what can be taxed. The local government is limited to the state passed legislation. The local government may not expand the definition beyond what is allowed by the state.

In the case of Essex County, that state legislation says, "For the purposes of this section, the term 'hotel' or 'motel' shall mean and include any facility providing lodging on an overnight basis and shall include those facilities designated and commonly known as 'bed and breakfast' and 'tourist' facilities."

On the other hand, the recently passed Essex County legislation says, "Any facility providing lodging on an overnight basis and shall include those facilities designated and commonly known as, bed and breakfast, inns, cabins, condominiums, cottages, campgrounds, lodges, tourist homes, convention centers, vacation rentals, motor courts, boarding houses, lake cottages, personal residences or similar type of accommodations by whatever name designated."

Certainly sounds like an expansion beyond what the enabling legislation allows or intends. Also consider the statement by state Sen. Betty Little regarding the state-passed legislation that "Private homes that rent by the week would not be subject to this tax." Add in that even the state has been excluded by an administrative law judge from collecting sales tax from private homes that even rent for less than a week.

If anyone affected by this tax expansion in Essex County decides to challenge its legality, it will be up to the courts to determine if the county has gone too far. If I had a rental property in Essex County, I would be gathering with friends and others who have properties affected by this law and consulting my attorney.

Dick Gunthert

Saranac Lake



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