Request By:
Hon. Yvonne Guy
Warren County Clerk
429 East Tenth Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General (502) 564-7600
By letter of July 14, 1992, you ask, in substance, whether a tax imposed on certain legal processes and instruments by KRS 142.010 is applicable to an instrument known as an "assignment of a real estate mortgage. "
In our view, a legal process or instrument tax pursuant to KRS 142.010 is not applicable to an instrument known as an "assignment of a real estate mortgage. " Opinion of the Attorney General (OAG) 85-66 to the contrary is overruled. Discussion follows.
A tax on certain legal processes and instruments is imposed by KRS 142.010(1), which provides:
(1) The following taxes shall be paid:(a) A tax of three dollars and fifty cents ($ 3.50) on each marriage license;(b) A tax of three dollars ($ 3) on each power of attorney to convey real or personal property; (c) A tax of three dollars ($ 3) on each mortgage, financing statement or security agreement;(d) A tax of three dollars ($ 3) on each conveyance of real property; and(e) A tax of three dollars ($ 3) on each lien or conveyance of coal, oil, gas or other mineral right or privilege.
From a plain reading of the provisions KRS 142.010(1) (above), it can be seen that an "assignment of a real estate mortgage" is not among the legal processes or instruments specifically described which are subject to the tax imposed in such subsection. Further, in our view, such an instrument is not encompassed within any of the types of processes or instruments which are listed, such that it might be said to be taxable by implication. Since KRS 142.010(1) does not list an "assignment of a real estate mortgage" as one of the legal processes or instruments subject to a tax under that subsection, such an instrument is not subject to a tax imposed in that subsection. The view expressed here is consistent with the primary rule of statutory construction that the enumeration of particular things excludes the idea of something not mentioned. Smith v. Wedding, Ky., 303 S.W.2d 322 (1957).
Of additional note is that, in 1986 (subsequent to the issuance of OAG 85-66), the General Assembly amended KRS 142.010, adding language in KRS 142.010(2) expressly stating that the taxes imposed in KRS 142.010 were intended as a prerequisite to the original filing of an instrument subject to the taxes in such section, and stating: "Subsequent assignment of the original instrument shall not be cause for additional taxation . . . . " Acts, 1986, ch. 52.
In OAG 85-66, this office observed that KRS 142.010(1)(b) provided, in part, that a state tax of three dollars was to be paid "on each mortgage and conveyance of real and personal property. " The language of KRS 142.010(1)(b) current as of this writing is set forth above. It refers only to a tax on each "power of attorney to convey real or personal property. " Such provision does not impose a tax on an "assignment of a real estate mortgage. " OAG 85-66 also indicates, in substance, that the phrase "any conveyance of real or personal property" as used in KRS 142.010, is "broad enough to cover conveyances of real and personal property that do not amount to an absolute conveyance of title . . . ." We do not find such phraseology in the current language of KRS 142.010. Accordingly, to the extent OAG 85-66 finds that an assignment of a real estate mortgage is taxable pursuant to KRS 142.010, it is overruled.