Request By:
Mr. J. Thomas Shewmaker
Muhlenberg County Attorney
P.O. Box 302
Greenville, Kentucky 42345
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The factual situation giving rise to your question was described in your letter:
"Pursuant to KRS 133.120(7) I have been handling on behalf of the Commonwealth of Kentucky, County of Muhlenberg and Muhlenberg Board of Education various appeals of the assessments levied against mining companies in Muhlenberg County. There has been an appeal of 1977 and 1978 assessments by Peabody Coal Company and Gulf Oil. In connection with these cases I have recently received an opinion and judgment of the Kentucky Board of Tax Appeals on the Peabody case for the 1977 assessment."
KRS 133.120(7) requires the county attorney to represent the interest of the state and county in all hearings before the county board of assessment appeals and on all appeals prosecuted from its decision, even if the issue goes finally to the appellate courts. It is your contention that pursuant to KRS 132.350 you are "entitled to 10% of the state and county tax assessed and collected pursuant to the decision of the Kentucky Board of Tax Appeals." However, you write that "If Peabody does not pay the tax bill and I am required to file an additional suit to collect the bill, then I would be entitled to 20% of the bill pursuant to KRS 134.500 as the bill would be delinquent. "
A question has arisen concerning your fee for your work. We assume you have taken the appeals as far as the Kentucky Board of Tax Appeals.
KRS 133.120(5) requires the contending taxpayer to pay the taxes, without delay, due on the valuation which he claims as the true value on the appeals. When the valuation is finally determined upon appeal, the court or the Kentucky Board of Tax Appeals, as the case may be, shall certify the valuation to the county clerk, and the taxpayer shall be billed for any additional tax, etc. The provisions of KRS 134.390 shall apply to such tax bill. The latter means that a tax bill rendered against an increase in valuation over that claimed by a taxpayer, as finally determined on appeal as provided in KRS 133.120, shall become due on the day the bill is prepared, and shall be considered delinquent and subject to a penalty of six percent (6%) of the tax, penalty and interest due, unless paid within 30 days after it becomes due.
Of course, under KRS 134.390, if the taxpayer pays the added bill within 30 days after it becomes due (it is due on the day it is prepared), it does not become delinquent. Meyers v. Parkway Professional Center, Inc., Ky., 344 S.W.2d 389 (1961) 391.
Actually, the appeal procedure of KRS 133.120, and in which the county attorney represents the state and county, involves only the legal question of what is the proper assessment. The county attorney is collecting no tax. KRS 134.500, which you say provides a fee for you, involves only the enforcement of certificates of tax delinquency.
In OAG 78-842, copy enclosed, we outlined the conditions under which the county attorney would be entitled to his twenty percent (20%) commission where the tax is paid. The controlling criterion qualifying the county attorney for such commission is his taking affirmative action toward collection, and the tax is in fact paid. But KRS 134.500 relates exclusively to the situation in which a certificate of delinquency is issued, and the county attorney is required to enforce it for collection. See also KRS 134.430 and 134.440. KRS 134.350, which you mention, has no relevancy to your question.
The General Assembly, in providing in KRS 133.120(7) that the county attorney must represent the interest of the state and county in the assessment appeals, made no provisions for special compensation of the county attorney for such work. It has been held many times that ex officio duties may be imposed by law on public officials; and it will be their duty to perform them without compensation if there is no provision of law to that effect. Board of Drainage Com'rs v. Alliston, 198 Ky. 310, 248 S.W. 850 (1923) 851.