January 26, 1990
Dennis A. Groff
Pennington County State's Attorney
300 Kansas City Street
Rapid City, South Dakota 57701
OFFICIAL OPINION NO. 90-09
Tax installment payment agreements
Dear Mr. Groff:
You have requested an official opinion on the following factual situation:
FACTS:
1. For a number of years the Pennington County Treasurer's Office has engaged in a practice whereby real property owners could enter into an agreement to make monthly installment payments on delinquent real property taxes over a period of years. In exchange for the property owner's promise to make the installment payments, the Treasurer would agree to forego tax deed proceedings on the real property in question. When installment payments were received, the Treasurer would credit the payment to a non-interest bearing account and when the balance in the account reached a level sufficient to pay a delinquent installment together with the interest and penalty thereon, the Treasurer would automatically make the payment and issue a tax receipt.
2. For a number of years the Pennington County Sheriff's office has engaged in a practice of negotiating and accepting installment payments on delinquent personal property taxes, i.e., mobile home taxes levied pursuant to SDCL 10-9, after the Treasurer's Office has issued a distress warrant on the delinquent tax pursuant to SDCL 10-22-9. Upon receiving a distress warrant the practice of the Sheriff's Office is to request that the property owner come in and set up a payment plan acceptable to the Sheriff's Office. If an agreement is reached between the Sheriff's Office and the property owner and the property owner makes regular installment payments, the Sheriff's office will not make any levies on any property of the tax debtor.
Concerning these facts you have asked the following questions:
QUESTIONS:
l. Does a county treasurer have the authority under law to accept installment payments on delinquent real property taxes in exchange for refraining from initiation of tax deed proceedings?
2. After receiving a valid distress warrant does a county sheriff have the authority under law to accept installment payments on delinquent personal property taxes in exchange for refraining from levying on property which the tax debtor may own?
3. If these practices are not authorized, what is the status of the existing agreements made under the practices?
IN RE QUESTION NO. 1:
The answer to question one is contained in SDCL 10-21-7, which permits the county commissioners to authorize the county treasurer to accept partial payments of taxes upon application. This statute provides:
The county commissioners of any county may authorize the county treasurer to accept partial payments of taxes, upon application, thereof, any time after January first to apply against the taxes due. No partial payment of real property taxes shall be permitted unless and until all personal property taxes of the applicant are first paid. In cases where the applicant for partial payment owes taxes on more than one tract or parcel of real property, he must, at the time of application for the privilege of partial payment, designate the tract or parcel upon which said partial payments are to be first applied.
Official Opinion 71-23 answered the question of what constitutes partial payment of property taxes by explaining that a payment of less than one-half of the current unpaid real estate tax is a partial payment. The opinion also pointed out that partial payment is permitted only after proper application and approval by the county commissioners.
My answer to your first question is "Yes, when authorized by the county commissioners."
IN RE QUESTION NO. 2:
Once the treasurer has issued a valid distress warrant to the sheriff, that officer is bound by law to execute it. The sheriff simply does not have authority to accept partial payments under these circumstances.
My answer to your second question is "No."
IN RE QUESTION NO. 3:
No agreement made by the treasurer is valid or effective unless and until it is approved by the county commission. Until such approval occurs, the treasurer is personally liable for any loss the county may suffer as the result of a failure to timely offer tax sale certificates as provided in SDCL ch. 10-23. The appropriate officers of the county therefore may wish to seek speedy ratification of any existing agreements by the county commission.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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