Request By:
Patricia Todd Thomas
General Counsel, Fayette County Public Schools
701 East Main Street
Lexington, Kentucky 40502-1699
Opinion
Opinion By: Chris Gorman, Attorney General; Ross T. Carter, Assistant Attorney General
You have presented the following questions to the Attorney General:
1. Whether the unpaid [occupational license tax for schools] taxes are delinquent taxes, which fall under a separate category from the regular collection of occupational license taxes;
2. Whether these delinquent taxes may be contracted out to a private collection agency;
3. Whether a collection agency's fee of thirty-three and one-third percent (33 1/3%) is considered a "reasonable expense" under the facts of the above listed circumstances, pursuant to KRS 160.637(2); and
4. Whether a collection agency falls within the statutory exception to the Model Procurement Code for the contracting through noncompetitive negotiation.
Regarding your first question, we know of no reason why any tax that is not paid when due should not be termed a delinquent tax. However, the statutes dealing with collection of school taxes make no separate provision for the collection of delinquent taxes. The statutes simply make certain limited provisions for the collection of school taxes generally. While delinquent taxes may be placed in a separate logical category, it is a category without legal significance. Delinquent school taxes are still school taxes, and their collection must comply with the statutory provisions for the collection of school taxes.
Your remaining questions deal with the collection of school taxes by a collection agency. Our reading of the statutes indicates that collection agencies may not collect school taxes imposed by county school districts. Under KRS 160.500(1), the sheriff is designated as the party responsible for the collection of school taxes for county schools. The only alternative is provided by KRS 160.505, which authorizes a board of education to "appoint a person who shall be responsible for collection and administration" of the tax. This statute clearly contemplates that the person so appointed will be an employee of the school district rather than a private contractor, for the statute states that the "position may be full-time or part-time and his compensation shall be fixed by the board and/or boards of education."
We conclude that KRS 160.500 and 160.505 prohibit any party other than the sheriff or an appointed school employee from collecting school taxes. We also read the statutes as providing complete alternatives; that is to say, we do not believe that a board of education can designate the sheriff to collect some school taxes, and designate an employee to collect the remainder. A shared responsibility would defeat the legislative intention present in each statute to make a single person responsible for collection of the taxes.