Request By:
Hon. Barbara M. Harper
Reynolds, Pitt and Harper
Attorneys at Law
Post Office Box 1264
901 First Bank & Trust Building
Ashland, Kentucky 41101
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Asst. Deputy Attorney General
You present additional questions relating to the collection of the ambulance service district tax for the Eastern Greenup County Emergency Ambulance Service District. Reference is made to KRS 108.100(4). We concluded in OAG 81-319 that the subject ambulance service district is a special taxing district under § 157, Kentucky Constitution; that the county sheriff is required to collect the tax; and that he is required to turn over such taxes collected to the board of directors as the governing body of the district.
Question No. 1:
"Who is responsible for mailing the tax bill to the taxpayer?"
The sheriff, as the tax collector, must mail the tax bill to the taxpayer. KRS 108.100(4) provides that generally the collection of the district tax shall be in conformity with the general tax collection scheme employed in connection with state and county taxes. See KRS 133.220(4), providing that upon delivery to him of the tax bills, the sheriff shall mail a notice to each taxpayer showing the total amount of taxes due the state, county, school fund, and "other levies, " the date on which they are due and any discount to which the taxpayer may be entitled upon payment of taxes due prior to a designated date. (Emphasis added.) KRS 134.140, 134.020, and 134.170.
Question No. 2:
"If the sheriff has that responsibility, as appears indicated in KRS 134.140 and 133.220(4), who is responsible for costs of postage, envelopes, and clerical personnel necessary to stuff, seal and stamp each envelope and to accept payment of the tax?"
The sheriff is immediately responsible for such tax collection expenses attributable to the district tax. He must also accept payment of the tax by the taxpayer. Such collection expenses, however, may be finally paid out of the excess fees of the sheriff. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). The commission is one percent (1%). It is possible that in an appropriate circuit court action (declaratory judgment) he might contend that the 1% fee provided in KRS 108.100(4) is arbitrary in view of the amount and especially its comparison with the usual tax collecting rate set forth in KRS 134.290. We wrote in OAG 72-655, copy enclosed, that in the absence of a special statutory treatment of the tax collection commission (here KRS 108.100(4), KRS 134.290(2) must govern. And thus county taxes and special district taxes (not otherwise provided by statute) would constitute one fund in applying the percentages given in KRS 134.290(2). A reading of the percentages in the latter statute, upon which the sheriff's commission is based, quickly discloses the inordinante difference between the commission described in KRS 134.290(2) and this 1% commission for collecting the ambulance service district tax. For that reason, the sheriffs of Kentucky could contend that the 1% commission is arbitrary under § 2, Kentucky Constitution. See
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).
Question No. 3:
"Should the district, by analogy to KRS 133.220, deliver the tax bills to the county clerk who in turn shall deliver them to the sheriff and take a receipt therefor and file same with the county judge/executive and record in the order book of the county judge/executive in the manner required by law for recording the official bond of the sheriff, or should the district deliver said tax bills directly to the sheriff?"
From the total reading of KRS 133.220, the county clerk has the responsibility for tax bills, including state, county, and school taxes. KRS 133.220(2) provides in part that the tax bills prepared by the county clerk must show the total amount of taxes due the state, county, school fund, "and other levies. " (Emphasis added.) Thus in the absence of any statute to the contrary, we believe the county clerk should include special districts, such as the one in question, taxes on tax bills prepared by the county clerk.
Question No. 4:
"If the district should deliver the tax bills directly to the sheriff, is the sheriff required to give a receipt showing the number of bills and the total amount of the tax due the district as shown upon the tax bills which receipt shall be signed and acknowledged by the sheriff before the county clerk or a representative of the district, and which receipt shall be filed with the county judge/executive and recorded in the order book of the county judge/executive in the manner required by law for recording the official bond of the sheriff?"
Under the application of KRS 133.220, the county clerk includes the subject district taxes on the tax bills prepared in that office. Under subsection (3), the county clerk is normally required to deliver the tax bills to the sheriff before September 15 of each year. The clerk takes a receipt from the sheriff as detailed in that subsection.
Question No. 5:
"Who is responsible for the payment of any additional bonding fee that may be incurred by the sheriff as a result of his responsibility for collection of the ambulance district tax? KRS 134.230; KRS 134.250"
One purpose of KRS 134.230, involving the sheriff's general revenue bond, is to prevent the sheriff from having funds in his possession in excess of his general revenue bond. The general revenue bond covers liability to account for all charges of taxes made against the sheriff, and for all money received by him as revenue collector. Thus, the officer fixing this bond should set it for no less than the aggregate amount of state, county, and special district tax receipts for each year the bond is in force.
Leslie County v. Maggard, 212 Ky. 354, 279 S.W. 335 (1926) 338. See also KRS 134.240. There is no statute breaking down the expense of the bond in terms of the various tax authorities. Actually, the premium on the general revenue bond (KRS 134.230) must be finally paid by the state under the terms of KRS 62.155. The premium for the county levy bond of KRS 134.250 is paid by the county, pursuant to KRS 62.156. The latter two statutes involve the execution of bonds with a corporate surety.
Question No. 6:
"Who is responsible for the payment of costs of the monthly financial status report required by KRS 134.300?"
There is no special statutory treatment of that subject. It is a kind of expense, where properly documented, that is payable from the excess fees of the sheriff's office. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506; and KRS 64.530.
Question No. 7:
"In view of the statutorily set fee, may the sheriff demand or the district voluntarily pay a commission in excess of 1%? KRS 134.290; OAG 77-289."
We went into that under question no. 2, above. Since KRS 108.100(4) explicitly and specifically provides a sheriff's commission of one percent (1%), in connection with an ambulance service district tax, it would technically govern. The specific statute controls over the general statute.