Request By:
Mr. Johnny Mann
Lee County Sheriff
P.O. Drawer P
Beattyville, Kentucky 41311
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you ask whether the county attorney is required to represent you in a lawsuit against delinquent taxpayers. By telephone you explained that the Revenue Cabinet is requiring a 95 percent collection rate from you before they will issue a quietus. You state that it is therefore necessary for you to file lawsuits in an attempt to collect taxes. It is these lawsuits that you wish the county attorney to handle.
The county attorney is required to "institute, defend and conduct all civil actions in which the county is interested" when so directed by the fiscal court. KRS 69.210(1). He is also required to give legal advice to the fiscal court and the several county officers. KRS 69.210(3). However, we opined in OAG 83-380 that this did not automatically make the county attorney the attorney for the county officer in a strict, legal sense. In a civil case brought against the officer the county attorney should defend him when so directed by the fiscal court provided the county has a substantial interest in the litigation.
In OAG 67-144 we opined that the county attorney had no official duty to represent the sheriff in a matter involving the reimbursement of fees from the school board since the county had no interest in the suit.
The sheriff is the collector of state, county and district taxes. KRS 134.140. Thus, the county would have an interest in his collections, provided that the method of collection is authorized by statute.
KRS 134.020(3) states that all state, county and district taxes shall become delinquent on January 1 following their due date. KRS 134.430 states:
"(1) 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.
"(2) When any taxpayer becomes delinquent in the payment of a tax bill covering any property assessed by the property valuation administrator or the county board of assessment appeals, or any omitted property irrespective of by whom assessed, the sheriff shall first distrain a sufficient quantity of the delinquent's personal property in the county to pay the tax claim, and a necessary part of this property shall be sold as under execution for case. For failure to first distrain and sell personal property, the sheriff shall be liable for the tax claim represented by the tax bill, but receipt of a quietus for the tax bill shall preclude such liability. Neglect on the part of the sheriff to first distrain and sell personal property shall not affect the validity of the sale of the tax claim, or the lien or the rights of any purchaser thereof. If personal property sufficient to satisfy the tax claim cannot be found in the county, the sheriff shall sell so much of the personal property as is found and enter proper credit on the tax bill.
"(3) If no personal property is found, or the amount found is insufficient, a notation to that effect shall be entered on the tax bill. The sheriff shall, after entering this notation on the tax bill, advertise and offer for sale the tax claims of the state, county, and other taxing districts, if there is any real property subject to the lien provided in subsection (1) of KRS 134.420.
"(4) No sheriff shall knowingly sell a tax claim on the same tract of land more than once for the same tax."
When a delinquent tax bill is sold it becomes a certificate of delinquency. KRS 134.450(1). If no responsible bid is made on a tax claim, the sheriff shall purchase it for the state, county and district. KRS 134.450(2). The sheriff returns the certificate of delinquencies to the county clerk. KRS 134.450(3). Three years after the issuance of the certificate of delinquency the county attorney should initiate collection proceedings. KRS 134.470, 134.500.
Thus, it is clear that the sheriff's responsibility, vis-a-vis delinquent taxes, is to first distrain all personal property and then to sell the delinquent tax bill. The personal property subject to distraint is limited by KRS 427.010, which exempts many items of personal property. OAG 72-122, 72-212, 78-584.
There is no requirement in the statutes relating to the sheriff's responsibilities in regard to the collection of delinquent taxes that mandates the actual collection of a certain percentage of taxes. Furthermore, there is no authority for the sheriff to file suit for the collection of delinquent taxes, other than distraint of personal property. Finally, even if the sheriff does not distrain personal property, there is no authority in the statutes for the Revenue Cabinet to withhold the sheriff's quietus for failure to collect a certain percentage of delinquent taxes.
Consequently, it is our opinion that the county attorney may not represent you in the lawsuit.