July 17, 1987
Mr. Dennis D. Evenson
Deuel County State's Attorney
Clear Lake, SD 57226
OFFICIAL OPINION No. 87-25
Sales tax on copies made of instruments recorded in county offices
Dear Mr. Evenson:
You have requested an official opinion from this Office concerning the following factual situation:
FACTS:
The Deuel County Register of Deeds charges a fee for the making of copies from instruments that are recorded in her office. The fee is $1.00 for uncertified copies and $2.00 for certified copies. In addition, the Register of Deeds charges the South Dakota sales tax and city sales tax which amounts to 6% for these copies.
Based on these facts, you have asked the following question:
QUESTION:
Is the Deuel County Register of Deeds required to charge a sales tax for the fees charged to prepare copies, both certified and uncertified?
IN RE QUESTION:
If a retail sale is made, the retailer is required to report and pay a sales tax, SDCL 10-45-27. "Retail sale" is defined as the sale of either tangible personal property or services to a consumer or user, SDCL 10-45-1(5). While there is no doubt the register of deeds is selling a service, it is a service and fee which is mandated by SDCL 7-9-15.
It is my opinion that there is no tax liability on the fee collected by a public officer performing a service which is required to be performed by law, i.e. the certification of copies of records by the register of deeds.
On the other hand, there are certain services performed which are not mandated by law. I refer to offices which make available to the general public a copy machine where a per copy charge is made unrelated to any office duty. These may be found in many local libraries. These charges represent gross receipts from the sale of tangible personal property and are taxable.
Another service which is performed for a fee, which is not required by law, is the charge made in certain law enforcement offices for the monitoring of private burglar or intrusion alarms. Those fees are taxable unless the service is being performed for a governmental entity.
Sincerely,
ROGER TELLINGHUISEN
ATTORNEY GENERAL
