February 9, 1976

Mrs. Starlene Mitchell, Director
Division of Old Age & Survivors'
  Insurance
Office of State Auditor
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 76-18

Social security reporting and contribution liability

Dear Mrs. Mitchell:

You have requested an opinion from this office based upon the following facts:

The National Conference of State Social Security Administrators has been working diligently for several years to prevent the pro­mulgation of federal regulations for more frequent deposit of social security contributions. The states stand unified in endeavor­ing to obtain the passage of federal legislation which will insure the continuation of social security reporting and payment procedures which have been in effect for the previous 25 years, since public employees were eligible for coverage. The questionnaire concerning deposits of social security contribution moneys under the Section 218 agreement is very extensive. Completion by most of the states, including South Dakota, has been deferred until March 15 because of the research and .documentation needed. The results will be analyzed very carefully by the Congress and by the Social Security Administration. It is for that reason that clarification is requested in connection with the question asked herein.

Based on the above factual situation you ask:

Does the director of O.A.S.I. have legal authority to make such payment from the state treasury or any other fund source for the social security contributions liability for political subdivisions who may be tardy with their conventional payments to this agency?

SDCL 3-11-23 provides:

The old age and survivors insurance indemnity and interest fund shall not revert but shall continue as a revolving fund for the pur­pose of paying premiums and interest due the federal government on delinquent old age and survivors insurance employment taxes and reports of the state and its political subdivisions.

All interest collections on delinquent accounts shall be credited to this fund, and all payments are to be made on vouchers signed by the director of the old age and survivors division of the state auditor's office and approved by the state auditor.

The question you raise is essentially whether the above cited statutory provi­sion which provides for the payment of "premiums and interest" authorizes the payment of "delinquent contributions and interest."

It is my opinion that the above cited statutory provision does not contain authority for the director of O.A.S.I. to pay delinquent social security con­tributions of political subdivisions. The provision in the second paragraph of SDCL 3-11-23 refers to "interest" collections, not to "delinquent con­tribution" collections.

In addition, it is my understanding that the Legislature has never funded this revolving fund in an amount which would be capable of being sufficient to make tardy social security contribution payments for political subdivi­sions. To this extent, I believe the Legislature has not intended the revolving fund established by § 3-11-23 to be used for paying delinquent social securi­ty contributions of political subdivisions. Such a change in policy would in my opinion require enabling legislation.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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