November 12, 1981

Mr. Gary E. Davis
Office of State's Attorney 
Gregory County 
Burke, South Dakota 57523

Official Opinion No. 81-45

Accelerated Collection of Taxes on Mobile Homes

Dear Mr. Davis:

You have requested an official opinion from this office in regard to the following facts:

FACTS: 

A mobile home as defined in SDCL 34-34A-1 is listed for assessment purposes as provided in SDCL ch. 10-9 prior to the first day of February. The taxes are at that time due and payable, SDCL 10-9-10, but are not delinquent if one-half is paid on or before May 1 and the second half is paid on or before November 1.  Information is received by the county treasurer that the mobile home in question is about to be removed from the county at a time prior to May 1.

Based on the following facts you have asked the following questions:

QUESTIONS: 

1.  Do the provisions of SDCL 10-20-1 to 10-20-6 apply to mobile homes which have been removed or are to be removed from Gregory County when their taxes for the current year are due but not delinquent? 

2.  If the answer to the first question is 'yes,' if an individual has removed or is about to remove a mobile home from Gregory County, South Dakota, upon which taxes for the current year are due but are not delinquent is the county treasurer required to comply with the provisions of SDCL 10-9-13.1 prior to the issuance of the warrant?

IN RE QUESTION NO. 1:

Although personal property is exempt from taxation, SDCL 10‑4‑6.1, mobile homes are especially classified for taxation and are taxed under SDCL ch. 10-9 which tax is in lieu of all other property taxes and thus does not come under the general personal property tax exemption.  The procedure provided in SDCL ch. 10-9 contemplates the registration, determination and collection of the tax through normal procedures; that is, that the tax becomes due and payable when the mobile home is registered and the collection remedies do not come into play until the time of delinquency when the treasurer gives notice to an owner and conditional vendor of the delinquency and thereafter issues a distress warrant to the sheriff to seize and sell the mobile home.  It is made within the duty of the county treasurer to take this action each year within sixty days after a delinquency occurs; therefore, no county should ever have a mobile home tax delinquency unless the treasurer or sheriff fails to carry out his responsibilities.  I point this out merely to demonstrate that the Legislature has provided a specific route for the normal collection of mobile home taxes and the situation you have presented is an abnormal condition because the taxes have not become delinquent prior to the removal or threatened removal of the mobile home.

The Legislature has provided a remedy in these circumstances in SDCL ch. 10- 20 where in the opinion of the county treasurer the owner or owners or person in charge of the property performs any act which would have a tendency to hinder, delay or prejudice the collection of taxes.  It is there made the duty of the treasurer to collect such taxes 'regardless of whether such taxes have been levied or placed upon the duplicate tax list of the county.'  It is therefore not made a condition of the action that the taxes have become delinquent and in the event the owner of the mobile home prior to May 1 or November 1 attempted removal of the same, SDCL ch. 10-20 would apply.  The county treasurer, being of the belief that the property was about to be removed, obtains from the auditor a statement of the taxes extended or about to be extended and the county treasurer thereafter proceeds by distress and sale in accordance with SDCL 10-22-8 to 10-22-29.  SDCL 10-20-5 provides that if the property has actually been removed from the county, the county treasurer may issue a statement as to the value of the taxes which shall be ample authority for the sheriff of any county in the state to whom the same is sent to levy and collect the taxes in the same manner as provided in SDCL ch. 10-22.

The answer to your first question is 'yes.'

IN RE QUESTION NO. 2:

The answer to your second question is that SDCL 10-9-13.1 would only become applicable if the taxes had become delinquent.  If they had not become delinquent the county treasurer, having knowledge of the intended removal, should proceed in accordance with SDCL ch. 10-20.

As an additional matter, I should point out that since a mobile home is not required to have annual license plates if it is not to be moved on the highways, the county treasurer may be well advised to consider an application for license plates as an indication that there is intended removal of such vehicle and at that point take necessary action to collect the taxes, either by refusing to issue the plate until the taxes are paid or proceeding to distress and sale as discussed above.

Respectfully submitted,

Mark V. Meierhenry
Attorney General