Request By:
Mr. Mark D. Pierce
Attorney at Law
529 Broadway
P.O. Box 472
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A problem has arisen with your county sheriff. The outgoing sheriff failed to collect the taxes for the fourth year of his term through, we assume, no fault of his. Your specific question relates to additional costs to the incoming sheriff as a direct result of the necessity for his collecting the taxes for 1981. You ask whether the incoming sheriff may account for and deduct from such collections the legitimate additional costs of collection occasioned.
We concluded in OAG 80-298 that where the tax collections of the fourth year (1981) are delayed until 1982, through no fault of the outgoing sheriff, advancements made to the outgoing sheriff under KRS 64.140 may be paid back to the state by, inter alia, the tax commissions collected by the succeeding sheriff in 1982, which commissions would normally have been earned during the fourth year of the outgoing sheriff's term. The succeeding sheriff is not personally liable for the repayment of the advancements, however.
It is our opinion that to the extent that tax commissions received for collecting 1981 taxes in 1982 by the incoming or present sheriff are not sufficient to fund any extra costs occasioned by the collection of 1981 taxes in 1982, as described above, the commissions for collecting the 1981 taxes may be used to fund such extra costs. This analysis is both logical and equitable, when it is perceived that the county sheriff's operation or function is basically a county operation. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) and 64.355 (though this deals with counties of 75,000 population or more). Any excess fees of the sheriff's office go to the county. In addition, over a four year period the income against expenses will tend to have a balancing out effect.
Thus this "extra cost" situation would be a special limitation upon the application of tax commissions received in 1982 for 1981 taxes to advancements made to the outgoing sheriff under KRS 64.140. The point is that the outgoing sheriff, in the equitable scheme of things, must assume the burden with the benefit.