Request By:
Mr. Sam Boyd Neely, Sr.
Attorney at Law
P.O. Box 346
238 North 7th Street
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Alex W. Rose, Assistant Attorney General
This is in response to your letter concerning the collection of delinquent taxes by the third class City of Mayfield. You state it has recently come to your attention that there are several vacant lots and houses within the city upon which delinquent taxes exist where the last known record owners have been deceased for years. You indicate that the city desires to bring an action to enforce its tax liens against these properties in circuit court pursuant to KRS 91A.070. You have made inquiry of this office concerning the statutes which govern the bringing of such an action and the methods for selling the property to pay the back taxes. It is our opinion that pursuant to KRS 91A.070 the provisions of KRS Chapter 91 governing suits to collect delinquent taxes by first class cities may also apply to such suits brought by cities of lesser classes.
At the outset it should be noted that most of the statutes relating to collection of taxes by cities of the second through the sixth classes were repealed in 1982. (Specifically, we note that KRS 92.600 through 92.700 were repealed. These statutes set out a detailed procedure for the collection of taxes by cities.) KRS 91A.070 was apparently enacted to fill the gap left by the repeal of those statutes. However, KRS 91A.070 does not describe in detail the methods to be employed by cities in bringing legal actions to enforce tax liens, but it does make reference to the tax collection procedures employed by counties pursuant to KRS Chapter 134. Specifically, it indicates that where a city elects to utilize the county sheriff to collect city ad valorem taxes, "all procedures provided by KRS Chapter 134 concerning collection of delinquent taxes by counties shall be applicable." KRS 91A.070(1)(b). The difficulty arises in determining what collection statutes apply when the city does not elect to have the sheriff collect its city ad valorem taxes, but rather relies upon its own tax collector. In Subsection 2 of 91A.070 the statute provides that when the city does not elect to have the taxes collected by the sheriff "the city shall establish by ordinance procedures for the collection of ad valorem taxes which shall specify the manner of billing, the place of payment, discounts, if any, for early payment, penalties and interest for late payment, and other necessary procedures related to ad valorem tax administration." It is our opinion that this section does not authorize the city to create ordinances controlling the manner in which a lawsuit must be brought to collect delinquent taxes. Instead, it simply authorizes the city to create ordiances to deal with tax collection procedures other than lawsuits. This position is supported by the language of Subsection 3 of KRS 91A.070.
Subsection 3 creates the city's tax lien for delinquent taxes. It also authorizes the city to enforce the lien, ". . . by action in the name of the city in circuit court as provided by statute." The key language here is "as provided by statute." Which particular statute is being referred to is not clear. However, the language following that quoted above provides some guidance. It states, "In that action [the action in the city's name in circuit court] it may also obtain a personal judgment against the taxpayer for the tax, penalties, interest and costs of the suit." This language indicates that the basic action is an action in rem to which an in personam action may also be joined. This leads one to conclude that the statutes referred to are the newly enacted portions of KRS Chapter 91, since KRS 91.4880 through 91.4885 (passed in the same session with the repeal of 92.600-.700) detail the method by which a city of the first class may sue to collect taxes in its own name in circuit court by an action in rem. This view is confirmed by KRS 92.810 which expressly provides that cities of the second through sixth classes may employ the collection procedures set out in KRS 91.484 through 91.527.
In essence, it appears that in repealing the provisions of KRS Chapter 92 and in enacting KRS 91A.070 and KRS 91.4880 through .4885, the Legislature decided to provide cities of the second through sixth classes with the option of having the county collect their taxes or of collecting their own taxes in the same manner as a city of the first class. Accordingly, since you have indicated that Mayfield has its own tax collector, it is entitled to proceed to collect its delinquent taxes in the manner provided in KRS 91.4880 through KRS 91.4885. Those statutes set out in detail the method of proceeding. It seems unnecessary to do more than refer you to them for the answers to the various specific questions you have asked.