February 9, 1983

Mr. Leon J. Vander Linden 
Day County State's Attorney 
Webster, South Dakota 57274

Official Opinion No. 83-07

Payment after assessment date of proportionate share of real property taxes by part-owner

Dear Mr. Vander Linden:

You have requested an official opinion in regard to the following factual situation:

FACTS: 

The Day County Assessor believes that he does not have a duty to split taxes when ownership of the property has changed after the January 1st assessment date.  This problem occurs when a part-owner wishes to pay all of his taxes on a piece of property after assessment date and the property has been originally assessed as one unit and later portions of the property have been sold and the property is no longer one unit as originally assessed.

Based upon the above factual situation, you have asked the following question:

QUESTION: 

Does the County Assessor have a duty to split taxes when requested to do so by a taxpayer?

The duties of a county assessor or director of equalization as he is known, are basically set forth in SDCL 10-3 and require him to assess all property subject to taxation, SDCL 10-3-23, at its full and true value in money, SDCL 10-6-33.  He is likewise required to add omitted property to the assessment rolls at any time up to their delivery to the county auditor, SDCL 10-3-24.  The director also delivers the assessment rolls to the board  of county commissioners and local organized boards of equalization, SDCL 10-3-28.  The format for making the real estate list is found at SDCL 10-6-39 and contains a description of the property together with quantity, the value and finally the name of the owner or person listing the property.  The tax, however, is annually levied against the property and not the individual, SDCL 10-12-8.

After taxes are levied, the county auditor makes the tax list for each assessment district and calculates and extends the mill levies against that property, SDCL 10-17-1,2.  These taxes become due on the first day of January of the year following the year in which they are assessed, SDCL 10- 19-1, and it is the responsibility of the county treasurer to collect the taxes extended on the tax list of the county, SDCL 10-21-1.  Although the value and ownership of property is determined as of the assessment date, SDCL 10-6-2, 1949-50 A.G.R. 432, changes may obviously be expected to take place with respect to that property during any given year.  For example, it may be sold or it may be transferred by operation of law, as in the case of the decedent's estate, or property theretofore sold may be foreclosed by a mortgagee.

In order to keep track of these transfers it is made the duty of the register of deeds to keep a list of transfers for the current month and on the last working day to certify the same to the secretary of revenue, the county auditor  and the director of equalization, SDCL 7-9-10.  So far as the director of equalization is concerned, when he receives the notice from the register of deeds it is his duty to check the assessment rolls of real estate for that year and change upon such list the assessment thereof to the true owner as shown by such list, SDCL 10-3-32.  The lists herein referred to are those lists set forth in SDCL 10-6-38.  These lists are separate and distinct from the property tax lists provided by SDCL 10-17 which are prepared by the county auditor, SDCL 10-17-1. So far as the tax list is concerned, if there is an error in the name of the person assessed or taxed the name may be changed and the tax collected from the person intended if he be taxable and can be identified by the assessor or county treasurer, SDCL 10-11-9.

In my opinion this does not mean that the transfer of property between individuals during the year constitutes an erroneous listing that would bring into play the requirement to change the tax list; since as between vendor and vendee, the taxes become a lien upon the real property on and after the first of January of the year following that in which the taxes are assessed, SDCL 10-19-1.  The action of the assessor with respect to transfers is to post them to the assessment rolls for the year, which in and of itself has no effect on the tax rolls per se, SDCL 10-3-32.

The assessor's only duty is to list and assess the property.  It is not to tax the property, which is the responsibility of the board of county  commissioners and the county auditor.  Once the assessor has done his job he then must give notice to the taxpayer of that assessment and advise him of his rights to appeal to either a board of equalization or to the courts with respect to the valuation thereon, SDCL 10-3-17.  The appeal procedures for exercise of these rights are contained in SDCL 10‑11.  Failure to assert those rights preclude a taxpayer from recovery of taxes which may be improperly assessed.  Holbrook v. Gallagher, 220 N.W. 461 (1929).

When it comes to the collection of taxes the county treasurer is required to collect the oldest tax first and issue a receipt which is conclusive evidence that all prior taxes chargeable against the land have been fully paid, SDCL 10-21-15.  If the taxes are not paid by the delinquency date the property is sold for taxes, SDCL 10-23-7.  The county commissioners may authorize, however, the county treasurer to accept partial payment of taxes after January 1, SDCL 10-21-7.  Partial payment has been interpreted to mean less than one-half of the taxes which would become due on May 1, see Official Opinion 71- 23.

If a person has an interest in real property, whether that interest is divided or undivided he may pay his proportionate share of the taxes against the real property without paying all of the taxes upon the tax list, SDCL 10-21-8.  In this case the county treasurer accepts a statement of the portion of taxes paid, the extent of the interest of such person in the real estate and  shows that same on the tax list.  Thereafter if the co-owner fails to pay his share of the taxes only the interest of the co-owner or co-owners shall be sold for delinquent taxes.

In my opinion SDCL 10-21-8 does not contemplate anything more than the joint owner setting forth his property interest to protect the same from a sale for taxes and the county treasurer should accept that statement of his interest and the amount of taxes reflected thereby.  Obviously the assessor may assist the part owner in determining what the value of that interest was, but since the assessor only deals with values and not with taxes it would be then up to the auditor or treasurer to convert the proportionate value into dollars of tax.

The answer to your question is that the assessor does not have any statutory duty to re-value property and split the taxes on any of the tax lists or rolls.

Respectfully submitted,

Mark V. Meierhenry
Attorney General