December 4, 1980

Mr. Gordon Milbrandt 
Auditor General 
Department of Legislative Audit 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 80-73

Date of Delinquency for Real and/or Personal Property Tax Under SDCL 10-21-23 and SDCL 10-21-24

Dear Mr. Milbrandt:

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

FACTS: 

The delinquency date on the second half payment of real property tax is inconsistently applied among the various counties in South Dakota.  Some counties are charging interest as of November first while others are charging interest as of November second.

Based on the above facts, you have asked the following question:

QUESTION: 

On which dates do real and/or personal property taxes become delinquent and interest become chargeable?

SDCL 10-21-23 provides: 

On the first day of May of the year after which taxes shall have been assessed, one-half of all unpaid real estate taxes shall become delinquent, provided, that all real estate taxes totaling twenty dollars or less shall be paid in full on or before April thirtieth, and on that day and on the first day of each and every month thereafter there shall be added as interest on said delinquent taxes one percent.  If the other half is not paid by the  first day of November of the same year, that also becomes delinquent and the same interest shall attach in the same manner.

SDCL 10-21-24 provides: 

On the first day of May of the year after which taxes shall have been assessed, all unpaid personal property taxes shall become delinquent and on that day and on the first day of each and every month thereafter there shall be added as interest one percent until paid.  However, if any person pays one-half of the amount of personal property taxes due from him on or before April thirtieth after which such taxes shall have been assessed, the balance shall not become delinquent until the first day of November next following, after which date the same interest shall attach and in the same manner. However, all personal property taxes in the amount of twenty dollars or less shall be paid in full on or before April thirtieth.

In view of the foregoing statutes, it is clear that (1) with respect to both real and personal property taxes, payment on April thirtieth results in no added interest while payment on May first results in the statutorily-declared interest charge and (2) with respect to personal property taxes, payment on November first results in no added interest while payment on November second results in the statutorily-declared interest charge.

Thus, it is only the second half real property taxes which become delinquent if 'not paid by the first day of November' which is open to interpretation.  Insofar as the case law interprets the word by to mean 'not later than' (5A Words and Phrases pp. 794-796), it is my opinion that payment of second half real property taxes on November first does not result in added interest while payment on November second results in the statutorily-declared interest charge.

Respectfully submitted,

Mark V. Meierhenry
Attorney General