STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 1, 1970

Lowell Schmidt
Commissioner of Revenue
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-43

Taxation of moneys and credits held by joint tenants. SDCL 10-6-6

Dear Mr. Schmidt:

You have requested my official opinion as to the exemption which is allowed under SDCL 10-6-7, which reads as follows:

Notwithstanding the provisions of any existing laws of this state to the contrary, the aggregate value of moneys and credits subject to taxation of each individual, partnership, firm, or corporation shall be reduced fifteen thousand dollars and the levy imposed by § 10-16-25 shall be applied only to the excess, and where such aggregate value is fifteen thousand dollars or less, no such levy shall be imposed thereon, and the owner thereof need not list the same for taxation purposes.

In connection with this statute, my predecessor declared that jointly owned property of a taxpayer should be jointly assessed with one deduction allowed to the entity of the joint tenancy. (See 1957-58 AGR 248) In my opinion, while for some purposes an estate in joint tenancy may be held to be one estate, nevertheless, for tax purposes under the particular section above cited, the tax liability is based upon the aggregate value of moneys and credits of each individual, partnership, firm, etc., and the joint tenancy not coming within one of these provisions is not entitled to such an exemption.

A portion of 48 CJS Section 6, page 930, was quoted in that opinion. The continuation of that particular section, I believe, affords a better basis for a proper interpretation of this section of law.

. . . Each tenant is said to hold property per my et per tout, by the half and by the whole. The shares or interests of joint tenants are presumed to be equal, although the contrary may be shown...

Since the statute imposes the tax upon the aggregate value of moneys and credits, each person subject to that tax should list the total value of all taxable moneys and credits in which he has an interest. If a portion of his aggregate value is in a joint tenancy, he should include his presumed equal share when reporting moneys and credits.

From such aggregate value, then each person would be entitled to deduct the $15,000 exemption or if such aggregate did not exceed $15,000 he would not be required to list the same for the purposes of taxation.

To the extent that the 1958 opinion is in conflict herewith, it is expressly overruled.

Respectfully submitted,

Gordon Mydland
Attorney General