Request By:
Mr. Troy E. Dixon, Sheriff
Boyd County
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By Alex W. Rose, Assistant Attorney General
In your letter to the Attorney General, you state that the previous sheriff did not receive the 1981 tax bills. As the new sheriff, you have now received the 1981 tax bills. Since the previous sheriff had no revenue from collection of 1981 taxes, he borrowed $150,000 from the Commonwealth in order to pay operating expenses. As the new sheriff you must now collect the 1981 taxes and will therefore incur certain expenses you would not otherwise have incurred. You ask three questions:
(1) Does the new sheriff have any responsibility for the $150,000 indebtedness of the previous sheriff?
(2) How are the fees from collection of the 1981 taxes to be allocated between the previous sheriff and the new sheriff?
(3) If the previous sheriff is due any fees or commissions from the 1981 taxes, are those fees or commissions due before or after the expenses, fees or commissions due the new sheriff?
In OAG 80-298 (copy attached) a similar situation was addressed. An outgoing sheriff, through no fault of his own, was unable to collect the tax bills for the fourth year of his term due to delay, etc. The question presented was whether the incoming sheriff should repay the advancements made to the outgoing sheriff from fees and commissions received as a result of the incoming sheriff's collection of the outgoing sheriff's fourth year tax bills. In that opinion, we concluded that the equitable approach was for the incoming sheriff to repay the advancements from the fees and commissions received from the outgoing sheriff's fourth year tax bills. We reaffirm that opinion. Therefore, you should repay the advancements made to your predecessor from fees and commissions received from the collection of 1981 tax bills.
If the fees and commissions from the 1981 tax bills are insufficient to repay the advancements, however, you are not obligated to make payments over and above your receipts from the 1981 tax bills. See OAG 76-330 and OAG 71-387 (copies attached). The outgoing sheriff and his sureties are liable for the balance.
According to OAG 72-117 (copy attached) , when collection of taxes for one year is delayed through no fault of the sheriff so that the taxes are collected in the next year, a portion of the fees and commissions collected representing an amount that would normally have been collected in the preceeding year should be credited against salaries and other expenses of the preceeding year. The remainder represents taxes that would otherwise be considered delinquent and collected in the following year. The Auditor of Public Accounts has informed us that the guidelines utilized by that office are 90% and 10%. Applied to your situation, that would mean that 90% of the 1981 fees and commissions collected in 1982 should be allocated to your predecessor's salaries and expenses (including advancements) and 10% should be allocated to you for your 1982 collections.
You also state that you have incurred additional expenses as a result of collecting the 1981 taxes. The previous Attorney General opinions did not address this situation. However, all previous opinions concerning this area of the law have stressed equity in arriving at conclusions. Thus, it is our opinion that 90% of the expenses you have incurred directly related to collection of the 1981 taxes may be paid from the 90% allocation to the previous sheriff.