Request By:
Mr. Scott Smith
Lexington Herald
239 West Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether the occupational tax in Fayette County is valid without approval by public referendum.
It is our understanding that a city of Lexington ordinance (13-4), enacting an occupational or license tax in 1956, was continued as effective under the express provisions of section 15.09 of the Lexington-Fayette Urban County Government Charter. Under that section of the charter such ordinance will continue to be effective until repealed, modified or amended. That ordinance was based upon the statutory authority of KRS 92.280 and 92.281, which provide that cities of the second to sixth class could levy an occupational tax. KRS 92.281 and 92.280 represent a statutory implementation of § 181, Kentucky Constitution. See
City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948) 251; and
Baker v. City of Corbin, Ky., App. 556 S.W.2d 449 (1977) 450.
Significantly, KRS 92.280 and 92.281 contain no authority for a submission of the tax question to a vote of the people.
KRS 68.197(1) provides in part that "The fiscal court of each county having a population of 30,000 or more" may impose an occupational tax. Under subsection (3) of that statute the fiscal court imposing the license or occupational tax pursuant to subsection (1) must submit the question of the tax to the voters of the county at the next general election. Since there is nothing in the statute to the contrary, the urban county government, through the urban county council, may impose an occupational or license tax pursuant to KRS 68.197(1). Such power is authorized by KRS 67A.060. 1 Section 4.08 of the Lexington-Fayette Urban County government charter provides that the urban county council has vested in it all legislative powers of the merged government. Its powers include the power to levy taxes. However, the levying of subject tax under KRS 68.197(1), as we said above, is subject to its submission to the voters.
KRS 67.083(2) does not militate against this result as to KRS 68.197(1), since the taxing authority provided therein cannot be in conflict with any existing statute.
In view of the fact that the city of Lexington occupational tax ordinance was continued in effect, and since the statutes upon which that tax ordinance is based do not call for a plebiscite, it is our opinion that the present occupational tax is legal and does not require approval of the voters.
If the urban county government were to repeal the ordinance and proceed under KRS 68.197(1), then the tax would require the approval of the voters. However, the urban county council could, as an alternative, proceed under KRS 92.280 and 92.281, in which latter case no plebiscite is required or authorized. A plebiscite is never legal except where specifically authorized by constitutional or statutory law.
Footnotes
Footnotes
1 See Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974) 471.