Request By:
Mr. Lones O. Taulbee
Fayette County Sheriff
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an Attorney General's opinion on the following question:
"Does the amended statutory section of KRS 160.500 provide for a minimum fee of 1.5% for the Fayette County Sheriff of taxes collected for the Fayette County Board of Education if the Sheriff's actual expenses in collecting said taxes are lower than that amount." (Emphasis yours).
After KRS 160.500 was amended in 1946, the statute provided in part that the tax collector, in collecting local school taxes, shall be entitled to a fee at the rate of four percent. In the 1976 amendment, the statute read as follows: "The tax collector shall be entitled to a fee equal to his expense but not to exceed the rate of four percent (4%) for the collection of school taxes."
Prior to the 1976 amendment, the
Court of Appeals, in Dickson v. Jefferson County Board of Education, 311 Ky. 781, 225 S.W.2d 672 (1950), held that under constitutional sections prohibiting diversion of school funds (see §§ 180 and 184, Kentucky Constitution) a sheriff's fee for collecting school taxes cannot exceed the reasonable cost of collecting the school taxes. Anything in excess of such cost would be a diversion of school money. The 1976 amendment was designed to meet the above court ruling.
A 1982 amendment of KRS 160.500(1) reads in part:
"The tax collector shall be entitled to a fee equal to his expense but not less than one and one-half percent (1 1/2%) and not to exceed the rate of four percent (4%) for the collection of school taxes, which fee may be charged only for collecting or receiving school taxes or school funds received from the local school levy."
Under the ruling given in Dickson v. Jefferson County Board of Education, above, the basic measuring stick in terms of §§ 180 and 184 of the Kentucky Constitution is that the sheriff's fee for collecting school taxes cannot exceed the reasonable cost of collecting such school taxes. As we said, any amount in excess of the actual and reasonable cost of collection would constitute a diversion of school funds.
While the statute, as amended in 1982, has the added feature of providing a minimum fee of one and one-half percent (1 1/2%), it is clear from the express language and context that the one and one-half percent (1 1/2%) fee must be based upon an actual and reasonable expense at least equal to that percentage. Where the facts indicate that the actual and reasonable expense was something less than one and one-half percent (1 1/2%), only that lesser percentage could be paid the sheriff. Regardless of the statutory fee treatment given by the General Assembly, the sheriff's fee cannot exceed the actual and reasonable cost of collection up to a maximum of four percent (4%). In reality, the one and one-half percent (1 1/2%) figure adds nothing to the proposition that the actual and reasonable costs constitute the fee up to the maximum of four percent (4%). That is true since the fee is the actual and reasonable cost in a range from zero percent to four percent. Thus the one and one-half percent (1 1/2%) figure is superfluous and meaningless upon practical analysis.