January 26, 1990

Dennis A. Groff
Pennington County State's Attorney
300 Kansas City Street
Rapid City, SD 57701

OFFICIAL OPINION NO. 90-03

Effect of issuance of clear receipts on mobile home taxes

Dear Mr. Groff:

You have requested an Official Opinion from this Office based upon the following factual situation:

FACTS:

Pennington County recently completed a project wherein all delinquent mobile home taxes outstanding in the County were put on a computer record. Some of these outstanding taxes date back to the 1960's. Since completing this project a recurring situation has arisen wherein a mobile home owner desires to have a title for a particular mobile home transferred but: (1) there are unpaid mobile home taxes reflected on the computer record; (2) title to the mobile home has been transferred since the time the taxes accrued; and (3) subsequent year's taxes on the mobile home have been paid and tax receipt issued. It would appear that the root cause of this problem is that at the time the title to the mobile home was transferred or at the time subsequent years taxes were paid, the Treasurer's Office overlooked any record of prior years unpaid taxes.

Based upon the above facts, you have asked the following questions:

QUESTIONS:

1. When a title transfer with the SDCL 10-9-3.2 certification has occurred subsequent to the time that unpaid mobile home taxes accrued which remain unpaid, can a Treasurer thereafter make the certification required by SDCL 10-9-3.2 in the context of second title transfer even though the Treasurer is aware that there are unpaid taxes from years prior to the first title transfer?

2. If after prior year's mobile home taxes have accrued and remain unpaid, a Treasurer receives payment of subsequent years mobile home taxes and issues a receipt for such payment without reservation as to the prior years taxes, does SDCL 10-21-15 operate in such a fashion that the Treasurer can thereafter certify that all taxes are paid under SDCL 10-9-3.2 even though delinquent taxes from these prior years remain on the tax rolls?

SDCL 10-9-3.2 provides:

Any transfer or reassignment of a mobile home title shall be accompanied by an affidavit issued by the county treasurer of the county in which the mobile home is registered, stating that the current year's taxes are paid. No title will be transferred or license plate issued other than on a new mobile home registration until the taxes under 10-9-3 are paid. No transfer of title shall be completed unless the mobile home is registered as provided in 10-9-3. (Emphasis supplied.)

It is plain that it is only the current year's taxes which are the subject of the required certificate. This is logical since it is the duty of the treasurer each year to take necessary action to collect all current mobile home taxes. SDCL 10-9-13.1 requires the treasurer, within sixty days after the taxes become delinquent, to take positive steps to collect the same. Hence there is no need for any certificate extending beyond the current year's taxes where the treasurer does his or her job in accordance with state law.

SDCL 10-21-15 provides in part that it shall be the duty of the county treasurer in collecting taxes to ". . . 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 . . . 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."

This Office has continually held that the mere issuance of receipts with a "NO BAR" notation is not sufficient to prevent the receipt from being conclusive evidence of the payment of prior taxes. See 1941-42 AGR 295, 1963-64 AGR 340.

The Supreme Court has resolved this matter so far as the obligation and subsequent liability of a county treasurer is concerned. In Harris v. Stearns, (1906) 20 S.D. 622, 108 N.W. 247, the Court said: "The law makes it the duty of the county auditor to examine all duplicate receipts issued by the county treasurer, and where it appears that the `treasurer has not collected the full amount of taxes and interest which according to the tax list and the terms of the receipt he should have collected,' then the auditor shall forthwith charge the treasurer with the amount such receipt falls short of the true amount and the treasurer shall be liable on his official bond to account for and pay over the same." This holding is codified as SDCL 10-21-21.

The Court continued:

"If a treasurer issues a receipt which omits to mention prior taxes chargeable against the land described therein, he 'has not collected the full amount of taxes and interest which, according to the tax list and the terms of the receipt, he should have collected,' and is liable on his official bond for the loss of revenue thus occasioned. County treasurers are liable on their official bonds, independently of the section just cited, for any failure to faithfully discharge their official duties which results in loss of revenue. The effect of the section under discussion, taken in connection with the entire revenue law, is simply to place the consequences of the treasurer's failure to perform his duty upon that officer, where they properly belong, and not upon the taxpayer, who is charged with no duty to see that all taxes are collected." 97 N.W. at 362.

IN RE QUESTION NO. 1:

The answer is "Yes," a second title transfer with the SDCL 10-9-3.2 certification can occur where the previous transfer occurred subsequent to the time that unpaid mobile home taxes accrued, provided no intervening year's taxes are delinquent. The statute requires the certificate only as to the current year's taxes. Any other interpretation avoids the clear wording of the law. If there are prior year's taxes remaining unpaid, this goes to the nonfeasance of the treasurer and is not a matter of concern in issuance of titles.

IN RE QUESTION NO. 2:

If the treasurer issues a clear tax receipt on subsequent year's mobile home taxes without reservation, the question still comes down to "Are the current year's taxes paid?" If they are, the prior delinquency is irrelevant. The treasurer, of course, must be held accountable for all funds lost as the result of the nonfeasance in his or her office.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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