Request By:
Mr. Benjamin J. Lookofsky
Graves County Attorney
Courthouse
Mayfield, Kentucky 42066
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask about the 20% commission paid to county attorneys for collecting back taxes. See KRS 134.500. The county clerk takes the position that, since you have not taken any affirmative steps to collect back taxes, you are not entitled to the commission.
Specifically, your question is: What are the conditions under which your claim for the 20% commission would be properly payable?
KRS 134.500(1) provides in part that within 50 days after the issuance of a certificate of tax delinquency to the state, county and taxing district, the county attorney must cause a notice of the purchase to be served by the sheriff on the person in whose name the property was assessed, and advise him that the certificate 1 is a lien of record against his land (bearing 12% interest), and if not paid the county attorney will proceed to collect same as provided by law. Subsection (2) of KRS 134.500 requires the county attorney to prosecute the remedy or remedies provided in KRS Chapter 134 that are most likely to effect collection of the amount due on the certificates of delinquency.
Subsection (3) of the statute provides that "The county attorney who prepares the notice and has it filed, as provided in subsection (1) of this section, and performs his other duties in respect to the certificate of delinquency, shall be entitled to twenty percent (20%) of the amount due each taxing unit, whether the tax claim is voluntarily paid or is paid through sale or under court order, and such commission shall be paid to him by the county clerk when making distribution, as provided in KRS 134.480." (Emphasis added).
If the records reflect that delinquent taxes are voluntarily paid without the necessity for the notice of subsection (1) and the pursuit of legal remedies under Chapter 134, then the clerk has no authority to pay to the county attorney the twenty percent (20%) commission on such taxes voluntarily paid, since the county attorney took no affirmative action toward collection. See KRS 64.410, stating that no officer can be paid a fee for services not actually rendered. See also § 3, Kentucky Constitution. However, where the county attorney prepares the notice and has it filed, as provided in KRS 134.500(1), and thereafter the taxes are voluntarily paid without the necessity for any other affirmative action on the part of the county attorney, the county attorney is entitled to the commission.
Where the record shows that the notice of subsection (1) and pursuit of legal remedies under Chapter 134 were necessary in the final collection of such taxes, and the county attorney performed his statutory duties in connection therewith, the clerk should pay the twenty percent (20%) commission on such taxes collected to the county attorney. If the county attorney did not perform any such duties necessary for the tax collection, and the Department of Revenue did perform those "necessary" functions without the assistance or cooperation of the county attorney, the fee which would otherwise be paid to the county attorney shall, in such situation, be paid to the Department of Revenue for deposit in the delinquent tax fund provided for under KRS 134.400.
Let us suppose that the county attorney, the delinquent taxes not being paid in before the 50 days elapse [KRS 134.500(1)], causes the notices of purchase of the certificates of delinquency to be served. Thus, before the county attorney's taking legal remedial steps to collect the taxes, the delinquent taxes are paid. In that situation the county attorney is entitled to his commission. Or suppose the taxes are paid while the county attorney has taken affirmative legal steps [but there is no final legal action] toward collection, the county attorney is entitled to his commission.
In order that the clerk can engage in the ministerial duty of determining the payment of the commission, the county attorney should, within the framework of the above statutory analysis, file with the clerk an explanatory statement in support of his claim, where he is entitled to the commission as outlined above.
In our analysis we have considered the literal meaning in arriving at intent.
Department of Revenue v. Greyhound Corporation, Ky., 321 S.W.2d 60 (1959) 61. It seems clear that the county attorney should receive the commission where the taxes are voluntarily paid after the county attorney has at least prepared and filed the said notice. Further, he should receive the commission where the taxes are paid and where he has taken other affirmative legal action necessary for such collection of taxes, regardless of whether he takes it to final conclusion or to some intermediate stage.
The commission money can only be spent for the payment of your county attorney office operating expenses. KRS 134.545.
Footnotes
Footnotes
1 See KRS 134.450 [certificates of delinquency issued by sheriff on sale of tax claims].