OP-ED by John Lardner

by FIN |

“The Twelve Tables were engraved in bronze and posted in the Forum, to make the law known (thus preventing ignorance).”

—Dialogus, William of Oakham (1280-1349)

“IGNORANCE OF THE LAW is no excuse.” This legal doctrine goes back to Roman Law and the Common Law of England has been repeated by personalities such as Oliver Wendell Holmes and a multitude of jurists over the centuries, yet it is not absolute. Sir William Blackstone, who published a legal dictionary still in use propounded, “…often a mistake in point of law which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defense.”

So, where to start? The beginning is quite recent and that’s a major part of the problem. In the first two weeks of June, my wife received several phone calls about a week apart. The first was from a man, the second a woman identifying herself as “Narima Sperl.” They both pitched their cause: We’re from the Suffolk County Comptroller’s office, you rent your home, you haven’t paid taxes, you’re delinquent, there are serious penalties and interest and we will come after you. Being unsure of who she was really speaking with, my wife asked the man to mail her specific information. He never did. The woman asked my wife for her email address.

My wife, being the bright lady she is, refused to divulge it – she doesn’t give that information to someone she doesn’t know.

We do rent our Ocean Beach home during the summer, and utilize a popular vacation home website to book our clients’ vacation time.

Scammers abound on these websites (Craigslist is a favorite). They steal photographs, descriptions and even the names of the owners who advertise legitimately. Using fraudulent business accounts, they lure potential vacationers to deposit money into those accounts to secure their reservation.

Everyday news media warns about the multitude of scams being perpetrated on people (especially the elderly) every day. No wonder my wife is hyper-vigilant about fraud and scams – especially when called by someone claiming to be some government official – and initially concluded that both calls were another scam. Research and several calls to the Suffolk County Executive’s office revealed Narima Sperl as an actual employee (chief auditor) of the comptroller’s office. Why make a telephone call, and not deliver an official notice? “Mail gets lost on Fire Island,” quipped Sperl.

On June 14, I received a formal letter from the Suffolk County Comptroller’s office with enclosures. In an instant, I am told that I must collect a 3 percent tax on all 2016 rentals of less than 30 days from ten- ants having long past fully paid for their vacations. I am further advised that I must also pay that tax on all such rentals for the years 2013 through 2015.

Knowing nothing at all about a Suffolk County law called the Hotel/Motel Tax, I dig and locate the relevant statute but am still in the dark about how this tax applies to our rental property.

I write a reply to Comptroller John Kennedy expressing my consternation with the situation and requesting the courtesy of a reply. Copies of both letters are sent to NYS officials and the legislator who represents Fire Island, plus Islip Town Supervisor Angie Carpenter.

Hoping my RSVP was not in vain, I waited. Noth- ing. Not from Kennedy, not from anyone else, except Thomas F. Barraga, legislator, 11th District, Suffolk County, who wrote a letter to Kennedy expressing his belief that the tax should only be applied going forward not retroactively.

The pertinent Suffolk Law (Chapter 523. Hotels and Motels) and its enabling NYS Statute, Tax Law Section 1202-o, have been in effect since 1992. Suffolk’s tax started at .75 percent, then later increased to 3 percent.

The Law’s definition of Hotel or Motel has always been conveniently broad: “An establishment which is regularly used and kept open as such in a bona fide manner for the feeding and lodging of guests, where all who conduct themselves properly and who are able and ready to pay for such services are received if there are accommodations for them. The term shall include a tourist cabin, camp, resort, tavern, inn, boardinghouse, lodging house or any other establishment comparable or equivalent to any of those previously mentioned.”

I am unclear at what point in time someone in Suffolk County decided to specifically include private residential rental homes within the definition’s collection pot.

People have been renting their residences during the summer on Fire Island as long as I remember, and Incorporated Villages such as Saltaire and Ocean Beach have gone through hell and high water attempting to control and regulate their rental housing, i.e., the famous Grouper Laws. But never, until this June have I ever, ever been aware of any residential homeowner being required to collect a Hotel/ Motel Tax from their renters.

The large nail in the comptroller’s velvet hammer here: (he’s “…just trying to follow the law” he says), adding the timeworn precept: “Ignorance of the law is no excuse.”

The point exactly. How can you expect people (private residential homeowners) to comply with a law, especially one titled “Hotels and Motels,” if they are not reasonably aware they are obligated to do so.

So, the two major highlights in my response to Kennedy are:

1. Residential property owners renting their homes for less than 30 days on Fire Island have been totally “ignorant” of this Tax Law until June of 2016. Lord knows about thousands of renters in other geo- graphic areas of Suffolk. Everyone could have been given, with proper notice, say a year, to get on board, going forward.

In a galaxy far, far away, in a place called Tillamook County, Oregon, a virtually identical statute known as the Transient Lodging Tax was enacted in 2014. The strange government officials in that locale actually went to the trouble to send an official letter advising of the new law and its potential applicability to every taxpaying homeowner in the County.

2. People who rent their homes on Fire Island, for the most part draw up leases, collect both rent and security and obtain required rental permits far in advance of the summer rental dates (the majority are for less than 30 days).

In our case, tenants booked for the summer of 2016 had to be asked to fork over an additional 3 percent of the rental price to us as landlord/tax vendor, ex post facto.

Way beyond that, the comptroller not only wants this year’s 3 percent after late, late notice, but for an additional Christmas present under the tree, wants residential homeowners who rent to pay three years back taxes! “It’s only fair,” he says. The prior three years’ tenants aren’t going to pay that. That money is coming out of the pockets of the homeowners, and if they can’t or won’t, they will be chased down as tax evaders and socked with fines, back taxes, interest penalties and liens.

The whole exercise by Suffolk is, in my opinion, an obvious money chase. They could have done it in a far better, more sensible, and not so heavy-handed way giving people time to comply after understand- ing the details and reasoning. Because Suffolk Coun- ty can’t support their own infrastructure, museums, parks and historic sites, and they need money badly, they behave badly. They’re after those “Rich New York City Folks,” who burden Suffolk County with an MTA Tax.

I want to stress the terribly inefficient way this tax has been dropped on everyone and the fact that no one knew about it. Realtors and Fire Island elected officials alike have passed this off with “no comment.” How does Suffolk County plan to find renters who are renting off the grid, without using vacation websites or filing proper legal rental permits? How do they plan to enforce this law fairly and equally?

Mr. Comptroller, you’re no John Kennedy.

John Lardner has been a licensed practicing attorney for 44 years, and as a member of the Ocean Beach Fire Department, is one of the longest active serving volunteer firemen in New York. This Op-Ed was originally published in the August 12, 2016 edition of Fire Island News.

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