STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
March 2, 1971
Hobart H. Gates
States Attorney, Custer County
Custer, South Dakota 57730
OFFICIAL OPINION NO. 71-8
Liability of county treasurer for uncollected taxes
Dear Mr. Gates:
You have asked my official opinion as to the following factual situation:
... During the year of 1959, 1960 and 1961 when some real property was being divided in Custer County, the county treasurer failed to collect or recognize the fact that certain taxes had not been paid but subsequent taxes on these properties have been paid to date. During the intervening years the abstrator has checked the office of county treasurer and the abstracts on these properties show that no unpaid taxes exist. Also plats have been certified by the county treasurer certifying that no taxes were due and the plat filed. The errors have just been discovered by the county treasurer in checking for the past six years for delinquent taxes, Needless to say, there have been many changes in ownership. None of these errors were picked up in the audits by the state ...
In this request concerning this situation you have raised the following three questions:
1. Can the county commissioners waive payment of these taxes inasmuch as it is all due to errors in the office of the county treasurer?
2. If the county commissioners cannot forgive these taxes, who is responsible for the neglect, i.e. can the county go back on the bond of the then county treasurer, also is the county treasurer who certified that the taxes were paid liable?
3. If the county commissioners are unable to forgive the taxes and we can't go back on the treasurer's bond, who is obligated along the chain of title to pay these taxes?
As to Question 1, in my opinion the county commissioners have no authority to waive the payment or abate the taxes due to errors in the office of the county treasurer. The only authority afforded the county commissioners to abate or refund taxes is contained in SDCL 10-18-2 and the circumstances connected with your inquiry do not fall within any of the conditions or specifications prescribed in that section. This office has repeatedly held that the board of county commissioners has only such powers to abate or refund taxes as are specifically granted by law. 1947-48 AGR 471; 1945-46 AGR 73; 1949-50 AGR 438. Even the Legislature cannot do this. Sec. 24, Article III, South Dakota Constitution.
Concerning your Question 2, it is my opinion that the county treasurer who certified that the taxes were paid should be held liable for the amount of such taxes thereby lost and recovery should be attempted from the bond of that county treasurer as provided in SDCL 3-5-11 which covers the duties required by law of that officer. It was the obligation of the county treasurer to see that the oldest tax was collected first and to give no clear tax receipt unless such prior taxes which were chargeable against the land had been paid. This is a specific duty imposed by SDCL 10-21-15 and failure to comply with that section is a violation of the duties of the office of county treasurer. The treasurer having been charged with the amount of money in each of the tax lists by the county auditor, SDCL 10-17-9.
The county treasurer is liable for failure to collect any of those taxes with which he has been charged, and it is made the duty of the auditor, on receiving any duplicate tax receipts, to examine the same and compare it with the tax list to see if the total is correctly entered and if the treasurer has not collected the full amount of taxes he should have collected, the auditor shall forthwith charge the treasurer with the amount the 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, SDCL 10-21-21. The possession of the tax receipt which does not indicate that there are prior taxes against such lands in conclusive evidence that all prior taxes which are chargeable against the land have been paid, SDCL 10-21-15, and the failure to observe this requirement renders the treasurer personally liable for uncollected taxes. Harris v. Stearns (1906) 20 SD 622, 108 NW 247. See also 1937-38 AGR 528 and 1917-18 AGR 68.
On this point, the court in the Stearns case cited above, noted:
... The effect of the section under discussion taken in connection with the entire revenue law is simply to place the consequence 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. If the officers charged with the duty to bring forward and collect taxes when they become due fail to perform such duty, I see no reason why the legislature may not provide that the penalty for such failure shall be personal liability for the uncollected taxes. The government would be no more liable to suffer loss of revenue by reason of the treasurer's failure of duty in this respect than it would be by reason of its failure to pay over money collected in the usual course of business. In either case, the government would merely have recourse to his official bond. Certainly in the latter it could not compel a second payment by the taxpayer. ...
The Attorney General in 1917-18 AGR 68 finally 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.
The foregoing renders an answer to your third question unnecessary.
I concur with the previous opinions of this office.
Respectfully submitted,
Gordon Mydland
Attorney General
