July 17, 1980

Mr. Joaquin K. Hanson 
Minnehaha County State's Attorney 
County Courthouse 
Sioux Falls, South Dakota 57102

Official Opinion No. 80-46

Correction of Special Assessment Levies

Dear Mr. Hanson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Through a plat or record keeping error certain lots against which a special assessment levy was made were shown to be owned by someone other than the actual owner.  As a result that person paid the special assessments as shown in the records but did not pay the special assessments on the property which he actually owned.  When this taxpayer came to pay his real property taxes on the property owned, the county treasurer refused to accept the money because the special assessments against that property had not been paid.

Based on the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  May this special assessment be abated by the county commissioners? 

2.  If not, what procedure should be followed by the county treasurer? 

3.  May the county treasurer refuse to accept property tax payments when there are special assessments outstanding?

IN RE QUESTION NO. 1:

Abatement is covered in SDCL 10-18.  The taxes covered by that section,  however, and the assessments referred to are those general property taxes and general property assessments made against real property.  The chapter is not applicable to, nor may county commissioners abate, 'special assessments' which are not included within the term 'taxes.'  Warren v. Blackman and Western Surety Company, 62 S.D. 26, 250 N.W. 681 (1933).   Although tax deeds no longer discharge special assessment liens, SDCL 10-25-12, the rationale of that case would still be effective as to the difference between special assessments and taxes.  See also 1951-52 A.G.R. 224.

IN RE QUESTION NO. 2:

It is my opinion that if there is a discrepancy between the name of the owner of the property as shown on the special assessment roll and the assessment roll of the assessor, or a discrepancy in the legal description of the property contained in the assessment roll and the resolution of necessity, these discrepancies and errors may be corrected by the county auditor.  In this connection see 1951-52 A.G.R. 219, 220, where that specific question is answered.

IN RE QUESTION NO. 3:

It is my opinion that inasmuch as special assessments do not rise to the level of taxes, the county treasurer is under no obligation with respect to the provisions of SDCL 10-21-15 other than to collect the oldest real property tax first.  The treasurer may not refuse to accept payments of the real estate taxes until the special assessments have been paid.  See 1949-50 A.G.R. 235 and 1951-52 A.G.R. 224, 225.

It should be noted, of course, that the procedures for the collection of delinquent special assessments would still be applicable to property on which only the general property taxes had been paid.  The treasurer could still sell this property for delinquent taxes in the event the delinquent special assessments were not paid.

Respectfully submitted,

Mark V. Meierhenry
Attorney General