Request By:
Mr. Beckner Shimfessel
Clark County Clerk
Box 744
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You first raise the question as to whether constitutional amendment No. 2 is in effect for the entire tax year of 1981. See KRS 118.415 and §§ 256 and 257 of the Kentucky Constitution.
On November 3, 1981, the voters of Kentucky approved the subject amendment to § 170 of the Kentucky Constitution, which amendment extends the current homestead exemption from ad valorem taxes, applicable to home owners of age 65 or over, to homeowners who are classified as totally disabled under a program authorized or administered by any agency of the United States government, etc. The amendment explicitly provides that the exemption applies " provided the property owner received disability payments pursuant to such disability classification for the entirety of the particular taxation period, and has filed with the appropriate local assessor by December 31 of the taxation period, on forms provided therefor, a signed statement indicating continuing disability as provided herein made under penalty of perjury. . ." (Emphasis added).
The Department of Revenue, in a memorandum dated December 11, 1981, has taken the administrative position that any qualified person (totally disabled for 12 months in 1981) who files for the exemption by the end of 1981 is due an appropriate reduction in 1981 ad valorem taxes. We agree with that view, as will be explained hereinafter.
First, the basic provisions as to tax exemption in § 170 are self-executing, since there is no legislation necessary to put the exemption into effect. The application form is merely an administrative procedure. 16 Am.Jur.2d, Constitutional Law, § 94, p. 280. See, however, KRS 132.810 (Homestead Exemption) .
The amendment became effective on November 3, 1981, by the people's vote. Further, since the explicit language of the amendment put the qualification on an annual and full 12 months basis, there is no problem concerning retroactivity. It is true that a statute or constitutional section will not be given retroactive effect unless an intent to do so is clearly expressed therein.
Long v. City of Louisville, 97 Ky. 364, 30 S.W. 987 (1895); and
Webster County Soil Conservation Dist. v. Shelton, Ky., 437 S.W.2d 934 (1969) 937. The amendment satisfies that principle precisely in making it clear that a 12 months' continuing disability must be shown, and thus, since the amendment became effective in 1981, any person qualifying for total disability for the 12 months in 1981 is eligible for the exemption.
By following the explicit wording of the amendment, we have met the test of the strict construction principle as applied retroactively to tax exemptions.
Bigelow v. Reeves, 285 Ky. 831, 149 S.W.2d 499 (1941) 501; and
Department of Revenue v. Cent. Medical Lab, Ky. App., 555 S.W.2d 632 (1977).
Even if there were some doubt as to the 1981 effect of the new exemption, which we do not believe exists because of the plain language, it is well settled that when there is ambiguity or doubt as to a statute, such doubt would be resolved in favor of the taxpayer.
Barnes v. Department of Revenue, Ky. App., 575 S.W.2d 169 (1978) 172. That principle would apply to a constitutional section.
As to whether the sheriff should refund any money due a qualified disabled person for the 1981 taxes, KRS 134.590(5) expressly provides that upon "proper authorization" the sheriff shall refund the taxes from current tax collections in his possession. The sheriff shall receive credit from the tax authority for any refunds so made. The term "upon proper authorization" means authorization by the particular taxing authority for whom the sheriff collects taxes, as specified in KRS 134.590(4). The memorandum from the Department of Revenue of December 11, 1981, would constitute an authorization of refund as relates to state taxes collected by the sheriff. See KRS 134.590(1). The state requires no report of the sheriff, except that he must carefully document refunds of state taxes for the auditors.
CONCLUSION
(1) The constitutional amendment no. 2 to § 170 of the Kentucky Constitution is effective for the entire year of 1981, provided the homeowner can qualify as a continuously totally disabled person for the 12 months of 1981.
(2) The sheriff, upon proper authorization by the taxing authority, shall refund the taxes due to a qualified totally disabled person for 1981 ad valorem taxes collected and in his possession. The Department of Revenue, as applies to state taxes, has, in effect, given the sheriff such authorization in the memo of December 11, 1981. See KRS 134.590(1).