August 4, 1976
Mr. Michael T. Hogan
State's Attorney
Edmunds County Courthouse
Ipswich, South Dakota 57451
OFFICIAL OPINION NO. 76-72
Compromise of interest and penalty where taxes are abated
Dear Mr. Hogan:
You have requested my official opinion on the question of whether or not the Board of County Commissioners may compromise, abate or refund interest or penalty on taxes where the board has determined that such taxes themselves should be abated pursuant to SDCL 10-18-1 and 10-18-2.
As you know, the power of county commissioners to abate taxes is strictly limited to the grounds set forth in § 10-18-1 and 10-18-2. It has been the consistent holding of this office and of our courts that the commissioners may not abate any taxes unless the grounds for such abatement come within the statutory provisions above cited. Brink v. Dann, 33 S.D. 81, 144 N.W. 734 (1934); 1951-52 AGR 136; 1955-56 AGR 402; 1931-32 AGR 788: 1943-44 AGR 21; 1947-48 AGR 371.
The precise question you raise has not been answered, however; that is, whether when a proper abatement is authorized by the county commissioners may they thereupon likewise abate the penalty and interest. In my opinion, the penalty and interest should be abated where the commissioners have lawfully abated the taxes. It would be anomalous and both harsh and unfair to say that the taxes against property had been improperly assessed and yet to require the taxpayer to pay interest and penalty on such taxes. Also, since the penalty is computed as of the time when the taxes are finally subjected to collection, there obviously could be no penalty if there were no taxes owing. This opinion is consistent with the holding of our Supreme Court in the recent case of State v. Piekkola, filed April 23, 1976, Number 11669.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:JD:dh
