STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 5, 1971
Eldon Stoehr, Auditor General
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-42
Collection of delinquent personal property taxes, liability of county treasurer; form of receipts for agricultural and nonagricultural property taxes
Dear Mr. Stoehr:
You have requested my official opinion on the following situation.
A county treasurer is collecting current personal property taxes when there are delinquent personal property taxes outstanding. Publication of delinquent taxes is made as of April 30 of each year but not as of November 1. Unpaid personal property taxes from prior years are not published either, by paying only the first half of his personal property taxes each year, the taxpayer escapes publication of his delinquent status. Additionally, the taxpayer is actually paying only half of the taxes assessed because the treasurer has been accepting the first half in subsequent years without application on prior taxes, but has been making the notation on the tax receipt "prior taxes not paid." In this county, separate tax receipts are prepared for agricultural and nonagricultural taxes and taxpayers must pay them separately.
Under these circumstances you have asked the following questions:
1. Maya county treasurer accept current personal property taxes when delinquent personal property taxes exist?
2. Is the tax receipt issued under question 1 a bar against collection of prior taxes, notwithstanding the notation "prior taxes not paid?"
3. If question 2 is answered in the affirmative, is the treasurer personally liable for the taxes lost through the use of this procedure?
4. May counties separate agricultural and nonagricultural property for tax receipting purposes or must both items be included on a single tax receipt?
SDCL 10-21-15 provides that the oldest tax on real or personal property must be collected first and that a clear tax receipt is a bar to further collections except as stated in the receipt. This section reads as follows:
Oldest tax collected first-Tax receipt as bar to further collections except as stated in receipt.- The county treasurer in collecting taxes shall collect the oldest tax first, and shall in no case issue his receipt for the current year until all prior taxes are paid. The possession of a tax receipt issued by the county treasurer shall be conclusive evidence that all prior taxes which are chargeable against the lands in such receipt described, or, in case of a personalty tax, against the person named in such receipt, have been fully paid and shall be a bar to the collection of any prior taxes thereon, unless otherwise stated in the receipt. Such statement in the receipt shall specifically identify the tax, which is not to be barred by the receipt.
As to Question 1 -in my opinion, the county treasurer is required to apply all tax proceeds to the oldest tax and may not issue a receipt for the current year until all such prior taxes are paid. This would preclude the action you cite on the part of the treasurer in permitting taxpayers to pay only the first half of taxes each year, thereby not only escaping publication of the delinquent status, but continually paying only half of the subsequent year's taxes for each succeeding year.
As to Question 2, the mere statement on the face of a receipt that "this receipt is not a bar to any prior unpaid taxes" has been held by our court to be a bar to prior taxes, in other words, such a notation by itself would fail to protect the interests of the county in prior unpaid taxes; Guaranty State Bank of Sisseton v. Roberts County, 1930, 57 SD 515, 234 NW 35, 73 ALR 148. See also the opinion of this office 1941-42 AGR 295 where, in considering the same statement, the following opinion was given.
It is my opinion that the above statement applies to your situation and that the tax receipts subsequently issued by the county treasurer are conclusive evidence that all prior taxes which are chargeable against the land in such receipt described have been fully paid.
Also, 1963-64 AGR 340 to the same effect.
In this connection, also see 1931-32 AGR 756, where it stated:
The county treasurer shall be the collector of all taxes extended upon the tax lists of the county including all delinquent taxes and he shall proceed to collect the same according to law and to place the same when collected to the credit of the proper funds ... It is the duty of the county treasurer to observe and follow the provisions of these sections of the statute and he or she would not be warranted in accepting the subsequent tax and in writing across the receipt therefore that the issuance of this receipt in the payment of this tax is no bar to the collection of prior personal taxes and particularly those, if any, on the uncollectable tax list.
As noted above, the statute provides that the treasurer is bound to collect the oldest tax and as to any other tax, the receipt shall specifically identify the tax which is not to be barred by the receipt. I am unable to determine, however, any justification for a county treasurer accepting other than the oldest tax first and therefore the permissive notation mentioned in the statute should have no effect. The answer to your question is, therefore, that such a statement would be a bar against the collection of prior taxes.
As to Question 3, on the matter of the liability of the treasurer for actions which resulted in loss of taxes to the county, I call your attention to the opinion of this office dated March 2, 1971, Official Opinion No. 71-8, which holds that the county treasurer is liable for failure to collect the full amount of taxes which should have been collected under SDCL 10-21-21. Citing also the case of Harris v. Stearns, 1906, 20 SD 622,108 NW 247; also, 1937-38 AGR 528 and 1917-18 AGR 68. In the 1917-18 Opinion the Attorney General stated:
It will be noted from the language of our Supreme Court that while the collection of these prior taxes from the tax debtor is barred for failure to collect the same at the time they should have been collected yet the county treasurer is personally liable therefore.
As to your Question No.4, regarding the form of the receipts and whether or not a separate receipt should be given for taxes paid on levies made on agricultural and nonagricultural land separately or should they be included in a single tax receipt; it is my opinion that it is within your discretion as Auditor General to require either or both of such types of receipts depending on what, in your judgment, would best suit the situation in a particular county. Your authority for this is contained in SDCL 7-11-12 which requires the county treasurer to keep complete and accurate records of all amounts received and disbursed in such books, and according to such forms as shall be approved by the Auditor General.
Respectfully submitted,
Gordon Mydland
Attorney General
