Request By:
Mr. Ashley Mixson, Owner
Frankfort Collection Agency, Inc.
307-A W. Broadway
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Alex W. Rose, Assistant Attorney General
You have inquired whether delinquent tax collectors who contract with county fiscal courts pursuant to KRS 134.370 to collect delinquent personal property taxes are authorized to utilize the distraint procedures set out in KRS 134.430. It is our opinion that such authority is granted to a delinquent tax collector.
The main statute in issue, KRS 134.430 states in part:
"All personal property owned by a delinquent taxpayer shall be subject to distraint, and all property owned by him shall be subject to levy and sale by the proper collecting officer at any time from February 1 after the tax claim becomes delinquent until the tax claim is barred by limitations, unless otherwise provided by law."
Clearly, all non-exempt personal property owned by a delinquent taxpayer is subject to distraint until the statute of limitation runs. The only limitation is that the distraint must be performed by a "proper collecting officer." A delinquent tax collector is a proper collecting officer if the requirements of KRS 134.370 and 103 KAR 5:020 have been met. Basically, these requirements are: (1) the collector must have a contract with the fiscal court, (2) the collector must be bonded properly, (3) and the contract must be approved by the Secretary of Revenue. An acceptable form contract is set out in the regulations cited above. Once again, it is our view that a delinquent tax collector who has properly contracted with the fiscal court and received the Revenue Cabinet approval and is properly bonded is a "proper collecting officer" within the meaning of the statute. This is so notwithstanding the fact that the remaining sections of KRS 134.430 use the term "sheriff" rather than "proper collecting officer." It might be argued that when the sections are read together that they really only refer to the sheriff. This contention is defeated, however, by the definition of "sheriff" contained in KRS 134.010. Subsection (8) of that statute states "'Sheriff' includes any collector whose duty it is to receive or collect state, county or district taxes."
In closing, it should be noted that any delinquent tax collector who does utilize the distraint process has a duty to do so in a lawful manner. This means that he should be aware of the exemptions from distraint contained in KRS Chapter 427 and generally follow any other guidelines the Revenue Cabinet may have established or which may be required by law.