STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 17, 1969

Wallace R. Brantseg
State's Attorney, Roberts County
Sisseton, South Dakota 57262

OFFICIAL OPINION NO. 69-14

Reimbursement of special tax collectors

Dear Mr. Brantseg:

You have requested my official opinion on the question of whether or not the expenses of the delinquent tax collector are to be obtained from the delinquent taxpayer or whether they are obligations of the county.

This matter is covered in SDC 1960 Supp. 57.1025 and acts amendatory thereof which I shall discuss in this opinion. There has been no amendment to the Code sections that appear in the 1960 Supplement. Those sections and paragraphs provide for one type of personal property tax collectors, that is, a special deputy county treasurer serving at the pleasure of the board of county commissioners known as the ". . . Delinquent Tax Collector . . ." Under this section such tax collector has authority to institute and carryon proceedings under the laws of the state for the collection of delinquent personal taxes and has the same power and authority as given to the sheriff of the county acting under a distress warrant.

The section further provides all money received by such collector in payment of delinquent personal taxes shall be turned over to the county treasurer who shall issue a regular tax receipt for the amount and cause the same to be delivered to the tax debtor. The compensation for the services of the special deputy county treasurer serving as a delinquent tax collector are specified in the second paragraph of SDC 1960 Supp. 57.1025 and are:

" ... an agreed commission to be specified into resolution authorizing the appointment of such delinquent tax collector but not exceeding 10% of the amount collected by him, and in addition thereto the following fees: One dollar for making his return on the warrant of authority; one dollar for each levy; one dollar for each sale; all necessary costs of distress and sale, which fees and costs shall be collected from the tax debtor or his property." (Underscoring supplied for emphasis.)

It further goes on to state that in case of actual travel the tax collector shall collect from the tax debtor or his property, mileage at the rate of 7 cents per mile, except within the corporate limits of the county seat town. It then provides that all fees and costs collected shall, on the first and third Monday of each month, be turned over to the county treasurer and be credited to the general fund of the county thereafter, and on the first day of each month the county treasurer is required to furnish the tax collector with a certified list of his commissions, fees, costs and mileage and the tax collector thereupon files the list with the county auditor as a bill against the county to be audited and paid as other claims against the county.

An additional means of collecting taxes was provided by our Legislature in its enactment of Chapter 286, Laws of 1965, which was thereafter amended by Chapter 253, Laws of 1966 and Chapter 324, Laws of 1967. The first paragraph of Chapter 286, Laws of 1965, provides for the appointment, in the discretion of the county commissioners of a special tax collector to collect delinquent personal taxes. This special tax collector also shall serve at the pleasure of the board of county commissioners but he does not become a deputy county treasurer for these purposes. The section provides that after collecting taxes:

". . . All money received by such special tax collector in payment of delinquent personal property taxes shall be turned over to the county treasurer as collected and the treasurer shall issue a regular tax receipt for the amount and cause the same to be promptly delivered to the tax debtor and, after the payment of all costs of collection, except the monthly salary cost, he shall distribute the balance remaining to the proper taxing district as is required of any monies received by him arising from levied collected taxes."

The second paragraph of Chapter 286, Laws of 1965, as amended by Chapter 325, Laws of 1967, specifies a method of compensation of such special tax collectors appointed pursuant to Chapter 286, Laws of 1965. This is a different method of compensation than is provided for a deputy county treasurer acting as a delinquent tax collector in SDC 1960 Supp. 57.1025. This chapter provides that as full compensation for all services rendered and expenses incurred in the performance of his duty as special tax collector he shall receive:

"1. A monthly salary to be set by the board of county commissioners.

"2. Payments for his authorized mileage driven in the performance of his official duties at a rate of 7 cents a mile, and

"3. A commission which shall not exceed 5% of the delinquent personal property tax due and collected by him."

This section likewise directs the county treasurer on the first of each month to furnish the special tax collector with a certified copy of a statement of commissions and the special tax collector shall file such statement with the county auditor as a bill against the county to be audited and paid as other claims against the county.

It is noted, therefore, that Chapter 324 directs that the costs of collection shall be paid out of moneys received by the delinquent tax collector from levied and collected taxes except the monthly salary cost. This is, in my opinion, a direct expense of the county as set forth in Chapter 324, Laws of 1967:

... a monthly salary, to be set by the board of county commissioners."

Previous Attorney General reports are not directly in point on this subject. I have reference to 1961-62 AGR 26, 1959-60 AGR 89 and 1947-48 AGR 276. These opinions preceded the 1965 amendment to SDC 1960 Supp. 57.1025. The new sections do not provide that the special tax collector shall collect his fees and commissions from the tax debtor or his property. The Legislature could have, if it had seen fit, included such a statement in those sections as previously existed in SDC 57.1025 and in the amendments contained in the 1960 Supplement. Instead, they have specifically provided that all costs except the monthly salary shall be paid from the moneys collected by the special tax collector and that thereupon the county treasurer shall distribute the balance remaining to the proper taxing district as is required of any moneys received by him arising from levied and collected taxes. (Chapter 324, Laws of 1967)

It is noted that the costs should be deducted before the taxes are returned to the districts. While this does, in fact, short each district by its proportionate amount of the costs, I see no alternative to this, since in my opinion the expression of the Legislature is very clear on this subject.

Respectfully submitted,

Gordon Mydland
Attorney General