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Assistant City Solicitor responding to #201856 re: possible regulation of AirBnB rentals through a local tax.
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Dear Honorable Board Members:
You have asked this office to provide an opinion concerning the regulation of day-by-day bedroom rentals, commonly referred to as airbnb, through the possible implementation of a local tax.
In my opinion, the City of Somerville has no authority to implement a local tax on airbnb rentals. A municipality “does not have the power to levy, assess, or collect a tax unless the power to do so in a particular instance is granted by the Legislature." Silva v. Attleboro, 454 Mass. 165, 168 (2009), quoting Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 92 (1987). Cities and towns have no independent taxation authority.
M.G.L. c. 64G, s. 3A, a local option statute which allows the City to impose a local excise tax, does not apply to airbnb rentals because they do not constitute a “bed and breakfast establishment, hotel, lodging house, or motel” as defined under the statute.
In my opinion, legislation must pass amending M.G.L. c. 64G before any tax on airbnb rentals can be imposed.
Given the failure of recent proposed legislation, municipalities continue to lack authority to independently tax such airbnb rentals. Please also see the June 9, 2015 opinion of Assistant City Solicitor Jason Grossfield, a copy of which is provided herewith.
Please contact me should you have any additional questions or concerns.
Very Truly Yours,
Shannon Phillips
Assistant City Solicitor