Request By:
Mr. David L. Logsdon
President
Kentucky County Clerks' Association
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Deputy Attorney General
The Kentucky County Clerks' Association requests our opinion on House Bill 206 and House Bill 208 as to who is legally entitled to receive the $2 penalty specified in House Bill 206, which amended KRS 186.045(3).
House Bill 206 [Ch. 321, Section 1, 1980 Acts], amends KRS 186.045(3). As amended, KRS 186.045(3) reads:
"(3) For failure to present both the current receipt and financing statement within the time prescribed by subsection (2)(a), the secured party shall pay a penalty of two dollars ($2) to the county clerk as a prerequisite for noting the security interest on the current receipt. "
The penalty arises where the secured party fails to present to the clerk both the owner's copy of the current certificate of registration and the financing statement within fifteen days, as mentioned in KRS 186.045(2)(a).
You say that the Department of Revenue takes the position that this $2 penalty must be turned over to the state [Department of Revenue] under KRS 142.010(3), which was left in the law, when the $2 penalty provision was removed by the 1978 session of the legislature from KRS 186.045. House Bill 208 [Ch. 145, Section 1, 1980 Acts], amended KRS 142.010 by deleting the last clause of KRS 142.010(1)(b). The amendment merely republishes subsection (3) in its previous form. Subsection (3) of KRS 142.010, as amended, reads:
"(3) Taxes imposed under this section and vehicle lienholder penalties imposed by KRS 186.045(3) shall be reported and paid to the department of revenue by each county clerk within ten (10) days following the end of the calendar month in which instruments subject to tax are filed or marriage licenses issued. Each remittance shall be accompanied by a summary report on a form prescribed by the department."
As relates to KRS 186.045(3) in the 1978 regular session [Ch. 84, Section 5], subsection (3) of the statute was amended to delete the penalty of $2, for failure to present the current receipt and financing statement, payable to the county clerk. Prior to the 1978 amendment the penalty of $2, less the clerk's commission of 5 percent, was required to be remitted to the Department of Revenue.
In sum, the legislative history regarding this $2 penalty is that before 1978, the county clerks collected it and then paid it over to the Department of Revenue, less the commission of 5 percent. After the 1978 legislative amendments, the provision for the $2 penalty had been deleted, but the reference to paying that penalty over to the Department of Revenue remained on the books. In 1980, the provision for the $2 penalty was put back into the law.
It is the opinion of the Office of the Attorney General that the General Assembly, by the 1980 amendment putting the $2 penalty provision back into the law, intended it to return the state of the law to the posture it was in prior to the 1978 amendment. That is, while the county clerk is to collect the penalty in issue [KRS 186.045(3)], the clerk is to remit this penalty to the Department of Revenue, [KRS 142.010(3)]. We do not believe 1980 House Bill 206 is irreconcilable with House Bill 208. In fact, we believe the opposite is the case. The 1980 General Assembly amended KRS 186.045(3) with full knowledge that the provision of KRS 142.010(3) was still in the statutes. A standard principle of statutory construction is that if possible, both old and new acts will be operative and effective if it can be done without contradiction or absurdity, and if any part of an existing law can be reconciled or harmonized with the provisions of a new law, it will not be deemed to have been effectively repealed. See Shultz v. Ohio County, 226 Ky., 633, 11 S.W.2d, 702 (1928).
There is one additional issue that concerns your question to this office. As noted above, before the 1978 amendment, KRS 186.045(3) provided that "The penalty, less the county clerk's commission of 5 percent (5%), shall be remitted to the department." The 1980 amendment put the $2 penalty language back into the subsection but did not return the 5 percent clerk's commission language. Irrespective of this fact, we are of the belief the clerk is still entitled to a 5 percent commission out of each $2 penalty imposed under KRS 186.045(3). The support for this position is the language of KRS 142.015 which reads:
"The county clerk, in each county, shall be allowed five percent (5%) commission on the amounts collected for state taxes on legal processes and instruments provided for under KRS 142.010, said five percent (5%) commission to be retained by the county clerk on said sums reported to the department of revenue and paid by the county clerk into the state treasury."
Since the penalty is associated with a tax provided for under KRS 142.010, we believe each county clerk is entitled to the commission figured on the total of the tax and the attendant penalty called for by KRS 186.045(3). Again, such a construction of the statutory provisions involved here returns the status of the law to that applicable prior to the 1978 amendments, which we believe was the desire of the 1980 General Assembly.