(dissenting in part). Local Law No. 43 (2009) of City of New York runs afoul of the enabling legislation (see CLS Uncons Laws of NY, ch 288-C, § 1, as added by L 1970, ch 161, § 1, as amended) to the extent that it imposes a tax on the fees earned by room remarketers, like plaintiffs, for assisting their customers in finding, and facilitating the rental of, a hotel room, as opposed to taxation on the room itself. Therefore, I respectfully dissent.
The enabling legislation provides, as relevant here, that
“[notwithstanding any other provision of law to the contrary, any city having a population of one million or more is hereby authorized and empowered to adopt and amend local laws imposing in any such city a tax in addition to any tax authorized and imposed pursuant to [Tax Law article 29] such as the legislature has or would have the power and authority to impose on persons occupying hotel rooms in such city” (CLS Uncons Laws of NY, ch 288-C, § 1 [1]).
The enabling statute delineates a formula for the calculation of the tax based upon the price of the room (id. § 1 [1] [a], [b]), and then goes a step farther, stating that, “[i]n addition to the tax imposed at the rates authorized in either [§ 1 (1) (a) and (b)] . . . , any local law imposing such tax may impose an additional tax on persons occupying hotel rooms in such city as provided for in such subdivision one at a rate up to six percent of the rent or charge per day for each such room” (id. § 1 [1-a] [emphasis supplied]).
The local law plaintiffs challenge created a new class of individuals, i.e., “room remarketers,” from whom a tax could be collected. A “room remarketer” is defined as “[a] person who reserves, arranges for, conveys, or furnishes occupancy ... to an occupant for rent in an amount determined by such room re-marketer . . . whether pursuant to a written or other agreement” (Local Law No. 43 § 2, codified at Administrative Code of City of NY § 11-2501 [12], as amended).
Plaintiffs, who consist of online travel companies, fall squarely within the definition of “room remarketers.” They challenge Local Law 43 on two grounds, namely, that it improperly requires the taxation of the fees that they earn while acting as a third-party intermediary between the hotel operator and the room occupant, and that it impermissibly requires them to collect and remit the taxes imposed on the rental of the room. In my view, only plaintiffs’ first argument has merit.
*130Local Law 43 must be viewed through the prism of the enabling legislation because the City may not impose a tax outside the expressed limitations of the enabling statute (see Castle Oil Corp. v City of New York, 89 NY2d 334, 339 [1996]). As relevant here, the local law expanded the definition of “rent”—which previously had been defined as including, among other things, “[t]he consideration received for occupancy valued in money, whether received in money or otherwise” (Administrative Code of City of NY § 11-2501 [7])—to also include “any service and/or booking fees that are a condition of occupancy” (Local Law No. 43 § 1 [emphasis supplied]). It also parsed the definition of rent into two subsections, “net rent” and “additional rent,” the former being defined as “rent received by an operator from a room remarketer,” and the latter defined as “[t]he excess of the rent received from an occupant by a room remarketer over the net rent” (Local Law No. 43 § 2).
Plaintiffs receive fees for their services in facilitating online hotel room rentals. The City claims that the enabling legislation permits it to tax these fees, the so-called “additional rent.” I disagree. Affording the statute a narrow construction, as we must when examining legislation that imposes a tax (see Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661 [1993]), it is my view that the City exceeded its authority by taxing the fees plaintiffs earned in facilitating hotel room rentals.
The majority relies on black letter law that tax statutes are to be strictly construed, and “should not be extended by implication” (majority op at 127), but then disregards these general principles and concludes that the enabling legislation granted the City “broad authority” to tax plaintiffs’ fees (majority op at 127). However, the enabling statute permits the City to impose taxes only “on persons occupying hotel rooms in [the] city,” and “at a rate up to six percent of the rent or charge per day for each such room” (emphasis supplied), and, therefore, the City does not possess the additional authority to tax the fees earned by online travel companies that facilitate the transaction itself.* Nor does the City have the excess authority to “tax any service *131fee that is a ‘condition of occupancy’ ” (majority op at 128), since the enabling legislation is directed at “persons occupying hotel rooms” and the tax is based on “the rent or charge . . . for each such room.” The payment of the fee does not constitute consideration “for each such room,” but, rather constitutes a consideration between the operator and the third-party intermediaries like plaintiffs who assist the hotel operator in bookings. Therefore, in my view, Local Law 43 plainly exceeded the scope of the enabling statute.
Chief Judge Lippman and Judges Graffeo, Read and Smith concur with Judge Rivera; Judge Pigott dissents in part in an opinion in which Judge Abdus-Salaam concurs.Order reversed, with costs, and the order of Supreme Court, New York County, reinstated.
Notably, the legislature understood that the enabling legislation did not require travel companies to collect sales tax on their charges to customers, and thus proposed legislation in 2007, two years before Local Law 43 was passed, to “require travel companies that rent hotel rooms online or by telephone to collect the sales tax on the markups and service fees charged to customers” (2007-2008 Executive Budget Briefing Book at 15, *131http://www.budget.ny.gov/pubs/archive/fy0708archive/fy07081ittlebook/ BriefingBook.pdf at 19 [in support of 2007 NY Senate-Assembly Bill S2110, A4310]). That legislation eventually passed in 2010, and thus the Local Law enacted in 2009 plainly exceeded the enabling statute at that time.