Volume 9 - Opinions of Counsel SBEA No. 125
Taxes (collection) (notice of unpaid taxes) - Municipal Home Rule Law, § 10; Real Property Tax Law, § 987:
A town may not adopt a local law dispensing with the one dollar penalty that is associated with the “second notice” that the collecting officer must mail before the expiration of the warrant.
We have received an inquiry concerning the one dollar penalty associated with the “second notice” required by section 987 of the RPTL (added L.1989, c.440). The question is whether a town may waive the penalty or, in the alternative, adopt a local law authorizing the receiver of taxes to accept payments without the penalty. The Town Receiver of Taxes is reportedly concerned that the penalty will result in additional paperwork, and that property tax payments which do not include the penalty will have to be returned.
Section 987 requires the collecting officer to mail a second notice after the end of the interest-free period, but before the expiration of the collecting officer’s warrant. As to the one dollar penalty, the law specifically provides: “The expense of mailing such notices shall be an additional penalty of one dollar chargeable against the parcel” (emphasis supplied). This provision, like the rest of section 987, applies to all towns in the State (subd. (5); see also, 9 Op.Counsel SBEA No. 77, which concluded that the notice requirement applies to all unpaid installments). There is nothing within section 987 to suggest that a town may waive this penalty. {*} Thus, by the terms of this section, the penalty is mandatory, not discretionary.
While towns are authorized by section 10 of the Municipal Home Rule Law to adopt local laws relating to the “collection of local taxes authorized by the legislature” (§ 10(1)(ii)(a)(9)), any such local law must be “consistent with laws enacted by the legislature” (id.). The question of whether a local law is consistent with a State statute may be a close one in some cases (see, e.g., 9 Op.Counsel SBEA No. 39). However, given that section 987 directs all towns in the State to impose a second notice penalty (subd. 5), a town local law providing that this penalty shall not be imposed in the town would, on its face, directly contradict section 987. Clearly, the consistency requirement of the “collection clause” would not be satisfied under any standard, and so this clause would not constitute sufficient authority for the Town to enact such a local law.
Accordingly, we believe that a town may not adopt a local law superseding the second notice penalty imposed by section 987 of the RPTL.
February 18, 1994
{*} The absence of any expression of such intent in section 987 may be contrasted with section 1184(9)(a) of the RPTL (L.1993, c.602, effective January 1, 1995), which provides that a one dollar charge shall be imposed for a similar mailing if local law so provides.