Request By:
Mr. Robert L. Caummisar
Attorney at Law
301 West Main Street
Grayson, Kentucky 41143 - 1299
Opinion
Opinion By: Steven L. Beshear, Attorney General; By Alex W. Rose, Assistant Attorney General
This is in response to your letter of March 12, 1982, in which you stated your concern regarding the public expressions of certain Carter County citizens of their intentions to resist payment of the Public Library District tax by the following methods:
(1) Refusal to pay any property tax;
(2) Payment of tax bills after deducting the amount contained thereon designated for library purposes; or
(3) Delaying payment until the final day before delinquency attaches.
You have asked whether the sheriff may accept a check offered by a taxpayer in payment of his property tax bill with the memo notation "payment in full" or "payment of all taxes except for library". KRS 134.020(2) provides, in pertinent part, as follows:
"The sheriff may, at any time after the taxes mentioned in this section become due, receive less than the face amount of the tax bill as a credit on the amount due, including the amount of any penalties then due; and every such payment shall be credited upon the tax bill or upon sheets annexed thereto for that purpose, and acknowledged in writing or by a rubber stamp, indicating the amount so paid to the sheriff." (Emphasis added)
Through the use of the word "may" in the above-quoted statute, the General Assembly has authorized, but not required, the sheriff to accept partial payment of a tax bill. Although the question has not been specifically addressed by the Kentucky courts, the general rule followed by other jurisdictions is that where separate and independent taxes have been levied against the property of a taxpayer, he has a right to pay the full amount of any one tax without paying the others. If the tender of such payment is refused, the courts have held that no further penalty and interest can be charged to the taxpayer with respect to the tendered payment. See, "Right to Pay One Tax Only", 89 A.L.R. 751 and cases cited therein.
Since the taxpayers of Carter County have neither appealed the assessments of their property made by the property valuation administrator as provided in KRS 133.120 and 131.340 nor attacked the constitutional or statutory authority of the public library district to levy the tax, the amount of the tax is final at the time the tax bills are mailed. No other avenues are available to the taxpayer for disputing the factual determination of the amount owed. See Parrent v. Fannin, Ky., 616 S.W.2d 501 (1981), at pages 503 and 504. In Cunningham v. Standard Construction Company, 134 Ky. 198, 119 S.W. 765 (1909), the Kentucky Supreme Court, at pages 766 and 767, stated as follows:
"'No question is more thoroughly settled than that, where one owes a fixed and definite sum, the payment or tender of a sum less than the amount of the debt, even though accompanied with a statement that it is in full, though accepted by the creditor, does not operate to defeat him from collecting the balance of his debt, for the reason that there is no considerqtion for the surrender there is no consideration for the surrender of the unpaid portion. There is nothing to support a consideration in such a case; . . .'" (Emphasis added)
Consequently, the acceptance of a tendered check with the memo notation "payment in full" or "payment of all taxes except for library" does not prohibit the proper collecting officer from instituting collection actions for the unpaid library tax. For theses reasons, the sheriff may withput jeopardizing his enforcement remedies, accept the tendered payment of a taxpayer's state, county and other district taxes even though the taxpayer refuses to pay the public library district tax.
You have also asked whether the sheriff, in making required disposition of tax receipts, must reduce the distribution owed the library district in accordance with the taxpayer's expressed wishes, or must he fairly apportion the total receipts according to the varying tax rates contained on the tax bill for the various taxing agencies. The General Assembly has provided procedures for the apportionment of property taxes when the sheriff has, through enforced collection actions, collected less than the full amount of taxes owed by a particular taxpayer. Those procedures are contained in KRS 134.350 which provides as follows:
"Where only a portion of the tax due is collected on state, county or district taxes, the amount recovered shall be apportioned by the sheriff between the state, county or district in the same proportion the amount due to each bears to the amount recovered. "
However, the procedures for the application of property taxes voluntarily paid to the sheriff are contained in KRS 134.170 which provides, in pertinent part, as follows:
"(1) When any money is paid to the sheriff, he shall immediately enter the payment upon his record books and give to the person paying it a receipt specifying the amount and on what account the money was paid, and when paying any money he shall take a similar receipt. The sheriff shall deliver the original tax bill to the taxpayer when the taxpayer has paid his tax in full. When a taxpayer pays an omitted tax bill, the sheriff shall deliver the original omitted tax bill to the taxpayer, and no other receipt or tax bill shall be evidence that the taxpayer has paid his omitted tax.
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(3) The sheriff shall not apply or use any money received by him for any purpose other than that for which the money was paid or collected. " (Emphasis added)
Therefore, the sheriff is required to distribute a payment voluntarily tendered in accordance with the taxpayer's direction.
For purposes of applying the penalty provisions of KRS 134.020(4), you ask how the appropriate delinquency date is to be determined when the tax bills are mailed subsequent to the statutory due. In OAG 80-53 it was concluded that where property tax bills are mailed late through no fault of the taxpayer, the time-table provided in KRS 134.020 for the payment of property taxes, including the discount and penalty provisions, is extended with the date the sheriff mails the bills being the due date. Therefore, if the sheriff mails the tax bills on April 1, the two percent (2%) delinquency penalty attaches on July 15, and the ten percent (10%) penalty attaches on August 15.