Request By:
Edward E. Dove, Esq.
Suite 312
Security Trust Building
271 W. Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter raises a question concerning KRS 139.100 and its application to public housing.
The Georgetown Public Housing Authority offers housing units to indigent and lower middle class families. Although the housing authority executes a lease that is for one year, many times the tenants move out in less than ninety days.
The housing authority is concerned as to whether it is subject to the provisions of KRS 139.100(2)(a) and whether the tax is applicable when the tenant leaves within 90 days after the lease was executed.
KRS 139.100 pertains to "retail sales" or "sale at retail" and provides in subsection (2)(a) as follows:
"Retail sale" or "sale at retail" shall include but not be limited to the following:
The rental of any room or rooms, lodgings, or accommodations furnished by any hotel, motel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration. The tax shall not apply, however, to rooms, lodgings, or accommodations supplied for a continuous period of ninety (90) days or more to an individual.
The subsection quoted above applies generally to the types of commercial enterprises enumerated except that it does not apply if a person stays in such an establishment for a continuous period of ninety or more days. A statutorily created municipal housing authority is not a commercial enterprise or undertaking of the type mentioned in the statute.
The statute applies to transients. "Transient" and "transient person" are defined respectively in part in Black's Law Dictionary (4th Ed.), p. 1670, as "not permanent" or "not lasting" and one "who has no fixed place or residence." A person who resides in a municipal housing project, even for a short time, at least has some degree of permanency or a fixed place during that time while those who stay in hotels, motels, etc., are by definition transients (unless they stay for a continuous period of ninety or more days). A housing authority is authorized to provide low cost housing and adequate and sanitary living quarters for individuals and families. KRS 80.020.
Thus, in our opinion KRS 139.100(2)(a) does not apply to the tenant of a municipal housing authority no matter what the period of time that the tenant actually resides within the authority's housing facility. While not directly on point, but perhaps of some interest is OAG 71-344, copy enclosed.