Request By:
Mr. Terry K. Stevens
County Attorney
Ballard County
P.O. Box 548
Wickliffe, Kentucky 42087
Opinion
Opinion By: Steven L. Beshear, Attorney General; By Alex W. Rose, Assistant Attorney General
In your recent letter to the Attorney General you pose several questions concerning the collection of taxes under the provisions of Kentucky Revised Statutes 131.500 et seq. Your questions concerning the liability, if any, of the sheriff will be moot after July 15, 1982, as the 1982 General Assembly has amended the statutes to delete the sheriff's participation in this delinquent tax collection procedure.
You inquired whether the provisions contained in KRS 131.500 authorizing the Commissioner of Revenue to order the sheriff to seize and sell property of individuals within the Commonwealth without a court order are constitutional? The administrative collection procedures stated in KRS 131.500 et seq. are modeled after the collection procedures used by the federal government and many state jurisdictions and are constitutional. The Kentucky General Assembly enacted the statutes in 1980 and they became effective on July 15, 1980. While no court cases contesting the validity of these statutes have arisen in Kentucky, these administrative collection procedures have been held constitutional in both federal and state courts. United States v. Manufacturers Trust Co., 198 F.2d 366 (2nd Cir. 1952); United States v. Erland, 223 F.2d 118 (4th Cir. 1955); United States v. Heck., C.A. Cal. 1974, 499 F.2d 778, Certiorari denied 95 S. Ct. 677, 419 U.S. 1088, 49 L.Ed2d 680; State v. Collier, 160 Tenn. 403, 23 S.W.2d 897 (1930); Bergeda v. State, 179 Tenn. 466, 160 S.W. 338 (1943).
You also asked what liability, if any, a sheriff will incur in following the orders of the Commissioner of Revenue in the seizing and selling of property without a court order. The sheriff cannot be held liable for wrongful levy when he acts according to the directions contained in a duly authorized delinquent tax warrant and notice of levy. As stated above, the legislature has amended KRS 131.500 et seq. to remove the sheriff from responsibility in this administrative collection procedure. A copy of House Bill 467 is enclosed.
You inquired whether the sheriff can legally require the Department of Revenue to supply him with a document before he levies pursuant to an order issued under KRS 131.500. The department must provide the sheriff with a delinquent tax warrant and notice of levy. These documents are provided pursuant to KRS 131.500 et seq.
You also asked whether the sheriff can require a bond or a letter from the Department of Revenue stating that it will indemnify him for any liability which he may incur as a result of obeying its order. The sheriff cannot require the Department of Revenue to post a bond indemnifying him from any liability. KRS 454.190 states as follows:
"Unless otherwise expressly provided by law, no bond, obligation or security shall be required of the commonwealth or any of its agencies or officers acting for or in behalf of the commonwealth in order to prosecute any remedy in the courts of this state."
Rule 81A of the Rules of Civil Procedure provides:
"Whenever a bond is or may be required by these Rules in order to take any proceeding, to indemnify any party, or to stay any proceedings under or the enforcement of a judgment, such requirement shall not apply to the United States, the Commonwealth or any of its municipal corporations or political subdivisions, or any of their agencies or officers acting for or on their behalf. Unless otherwise exempted by law such governmental unit shall be obligated to the same extent as if it had given the bond required."
KRS 131.500(2) provides that the sheriff shall proceed in the same manner with the warrant as prescribed by law in respect to an execution issued against property upon a judgment by a court of record. Thus, the legislative intent is to allow the collection of delinquent taxes without the necessity of requiring the Commonwealth to post a bond.