Opinion 89-30

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PERSONAL PROPERTY -- Gasoline (authority to provide to private senior citizens organization under contract)

GENERAL MUNICIPAL LAW, §95-a: As consideration under a contract with a private non-profit organization to provide senior citizens bus transportation, a town may provide gasoline purchased under a town contract to the private organization for use in the private organization's bus.

You ask whether a town may contract with a private senior citizens organization to provide gasoline to the private organization for use in the organization's bus. The bus is used to provide transportation to senior citizens of the community. You state that the town purchases gasoline, annually, after advertising for competitive bids.

Town Law, §64(2-a) authorizes a town to purchase personal property for proper town purposes. Therefore, since there is no statutory authority for a town to engage in the sale of gasoline as purely a proprietary or commercial activity, this Office has expressed the opinion that a town is generally without authority to purchase gasoline for re-sale to private organizations (1982 Opns St Comp No. 82-73, p 90; 1977 Opns St Comp No. 77-904, unreported; 1966 Opns St Comp No. 66-749, unreported; cf. General Municipal Law, §352[4], authorizing the sale of aviation petroleum products at municipal airports; Blank v Browne, 217 App Div 624, 216 NYS 664, relative to the sale of gasoline as an incident to the operation of a public park). Towns are authorized, however, to establish, maintain and operate programs devoted in whole or in part to the welfare of the aging, and to contract with private non-profit organizations for the operation and maintenance of such programs (General Municipal Law, §95-a). Such a program may include the provision of transportation services to senior citizens (1980 Opns St Comp No. 80-470, unreported).

We are aware of no requirement in General Municipal Law, §95-a or elsewhere that the consideration under a contract with a non-profit organization to operate and maintain a town senior citizens program be cash. Therefore, it is our opinion that, as consideration under such a contract, a town may provide gasoline for a bus owned by the private organization and used to provide transportation services under the contract (see Opn No. 82-73, supra; 27 Opns St Comp, 1971, p 123). Under these circumstances, providing gasoline would be in furtherance of the proper town purpose of operating and maintaining a town senior citizens program.

We suggest, however, that appropriate officials of the New York State Department of Taxation and Finance and the Federal Internal Revenue Service be contacted to determine the applicability of any tax exemptions for the town's purchase of gasoline for use in a privately-owned bus.

August 15, 1989
Henry J. Holley, Esq., Town Attorney
Town of Deerpark