Request By:
Hon. John E. Clontz
Clontz and Cox
Post Office Box 1350
Mt. Vernon, Kentucky 40456
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion on the following question:
Is the City of Mt. Vernon entitled to a collection fee under KRS 160.500 for its services in collecting a utility gross receipts license tax levied by the Rockcastle County Board of Education when the City is the owner and operator of the water utility taxed?
You stated that it is the position of the City of Mt. Vernon that KRS 160.500 entitles the city to charge a fee for collecting school taxes.
This office has addressed this question, most recently, in a miscellaneous letter issued on August 30, 1991, to the City Clerk of Falmouth, Kentucky. The city asked for clarification on whether the city could collect from the school board those charges incurred by the city from the implementation of the utilities gross receipts license tax. As stated in that letter:
The tax involved here is the utility gross receipts license tax which is set forth in KRS 160.613. This office has interpreted that statute on numerous occasions over the years and in OAG 73-822, copy enclosed, we dealt with the tax and its applicability to a city owned utility. At page two of that opinion we concluded as follows:
In summary, a city-owned utility must pay a duly enacted utility gross receipts tax and can make no charge therefor except to increase its rates sufficiently to pay the amount of the tax.
See also OAG 75-455, copy enclosed, dealing with a state regulated utility as opposed to a municipal utility and the imposition of a gross receipts utility tax. In that opinion, at page two, we said in part as follows:
Since there is no provision in the utility gross receipts tax law for the reimbursement of any expenses to the utility, the company cannot be reimbursed for any expenses incurred in passing on the tax as such rate increase.
This office has also opined, based on
Luckett v. Electric and Water Plant Board of the City of Frankfort, Ky., 558 S.W.2d 611 (1977), that:
[T]he utility gross receipts license tax is levied on the utility company, not its customers. The utility company may raise its rates under KRS 160.617 to compensate for the tax, but this does not make it a tax levied on the customers.
OAG 83-445. The Kentucky Supreme Court went on to add:
The fact that KRS 160.617 permits the utility company to raise its rates to alleviate the burden on the utility company does not convert the tax into one levied upon the customers in which the utility company merely acts as collection agent.
Luckett, 558 S.W.2d at 613.
Therefore, the City of Mt. Vernon is not entitled to a collection fee for rendering the utility gross receipts license tax levied on the city-owned utility by the Rockcastle County Board of Education.