per-it report-he de-fined per-sonal per-sonal ANNUAL REPORT OF THE ATTORNEY GENERAL 73

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1 j tax period ANNUAL REPORT OF THE ATTORNEY GENERAL 73 AS TO QUESTION 4 Pursuant to created by Ch the Department of Revenue would appear to have the general power to waive any or all penalties provided Penalties as provided in this chapter unless waived or coin pronrised by the department shall be assessed and collected in the sane manner as the tax levied by this chapter. Emphasis supplied. Notice is also taken of $ F. S Supp. providing a like provision of general application upon the showing of good cause. id February TAXATION COLLECTION AND ENFORCEMENT OF INTANGIBLE PERSONAL PROPERTY TAXES AFTER REPEAL OF CH. 199 F. S. To Rudy Underdown Brevard Counts/ Tax Collector Titusville Prepared by Winifred L. Wentworth Assistant Attorney General QUESTIONS Since Ch. 199 F. S was entirely repealed by Ch I d Laws of Florida which became effective July Is there an intangible personal property tax law for the id July to Dec Is there now an intangible tax law ax 3. Did the continuing duty of the tax collector to collect tax executions under F. S end on June since this entire chapter was repealed le executions still collectible to 4. Since the chapter was repealed in its entirety are recorded 5. Is the taxpayer entitled to a refund due to the tax collector 15 collecting during the period from July to Dec on a execution which was previously recorded and is less than seven ey per-sonal as years old 6. In referring to F. S has not the tax collector rst been relieved of accountability for the collection of intangible property taxes under this chapter as of June On what date does the implementation of Ch Laws ir y of Florida end 27 S. What powers are granted to the Department of Revenue and er the tax collector relating to collection and enforcement of collections ed for the 1971 intangible personal property tax roll 9. When shall the of tax collector be relieved of accountability per-it ng for collection of taxes assessed for the calendar year 1971 per-sonal hd 10. Does the Department of Revenue collect taxes due the 6y 1971 roll after Jan Is the taxpayer relieved of paying the 1971 intangible property tax as shown on the 1971 tax roll after Dec report-he on unpaid items as of that date 12. Is the tax collector entitled to commission only for the rl amount collected Nov. and de-fined Dec on the 1971 intangible sonal property tax roll 13. Since there is no is the taxpayer relieved of ing his money when the levy under refers to money as in

2 74 ANNUAL REPORT OF THE ATTORNEY GENERAL SUMMARY The repeal of Ch. 199 F. S under the terms of Ch Laws of Florida does not affect taxes previously levied under the former law. The implementation period under Ch covers that period of time necessary to complete the assessment and collection of the intangible tax assessments and levy made ques-tions for the calendar year Insofar as county tax collectors duties and functions are concerned 1 2 and 4 are answered in the affirmative questions and 9 by qualified responses stated below and questions 5 6 and 10 through 1.3 in the negative. AS TO QUESTION 1 There was an intangible personal property tax law for the period July through Dec because the implementation section of Ch effective July act provided Implementation of this For the calendar year 1971 the tax assessors of the several counties col-lect shall continue to place intangible personal property on his tax roll. 2 For the assessments and levy made for the calendar year 1971 the tax collectors of the several counties shall continue to the taxes on intangible personal property under the procedures including any discount allowed for early returns used for collecting ad valorem taxes on other types of property. The collectors shall he granted all powers relating to collection and enforcement of collections which are granted to the department for this period of implementa-tion time. 3 The department is directed to provide any assistance to the tax assessors and tax collectors during this period of implementation account-ability time necessary to carry out the provisions of this act. 4 No tax assessor or tax collector shall be devolv-ing relieved of for assessment or collection of any taxes imposed under this chapter until he shall have completely performed every duty upon him as required by this chapter. The statute thus provides for intangible assessments and levy for the period in question as a part of the calendar year Section under 2 of prop-erty the act took effect on July simultaneously with the repeal of former Ch. 199 F. S. and both and of Ch are expressly excluded from the limitation of stating the act shall apply to assessed and taxes levied after Dec AS TO QUESTION 2 Your second inquiry as to the law in effect now taken as of the date of your letter Dec is answered in the affirmative by the statutory language above quoted. For intangible taxes levied after Dec the ex-plicit controlling law is of course Ch in its entirety. AS TO QUESTION 3 The repeal of Ch. 199 F. S by Ch is qualified by the provision of 2 of the law that except for and this pro-vided act.. shall apply to property assessed and taxes levied after December That language expresses an intent to prevent application of Ch including the repealer clause to taxes levied before that date except as in the excepted implementation sections relating only to the assessments h

3 ANNUAL REPORT OF THE ATTORNEY GENERAL 75 and levy made for the calendar year As to 1971 assessments col-by com-pletely supra expressly declares the continuing duty of tax collectors in accountability for collection of taxes imposed under this chapter until he shall have performed every duty devolving upon him as required this chapter. The county tax collectors duties as to taxes imposed under this chapter would as indicated apparently relate to taxes for the calendar year I would conclude however that the express legislative limitation of the chapter supra to taxes assessed after Dec except as expressly Fes- provided for 1971 must be construed to prevent repeal or cancellation of lection duties under the former law as to taxes assessed under its terms before f the specified date such as duties stated in the cited sections of former Ch. 199 about which you inquire Continuing duty of the tax collector to collect tax executions.-it shall be the duty of the tax collector issuing a tax execution to continue from time to time his efforts to collect the same for a period of seven years from the date of the issuance of such tax en-force execution but at the expiration of said period said execution shall be void. The department of revenue may direct the tax collector from time to time as to the manner of conducting the proceedings to such tax execution Tax collectors accountable until complete performance of duty hereunder.-no tax collector shall be relieved of accountability for collection of any taxes assessed on intangible personal property until he shall have completely performed every duty devolving upon him as required by this chapter. col-lectors While statutory remedies or tax collection procedures are certainly subject under many circumstances retrospective legislative repeal or change my conclusion above i.e. that Ch has no such effect on county tax responsibilities as to taxes previously assessed under former Ch. 199 is supported by Florida law on repeal of tax statutes absent express retrospective provisions It is generally held that statutes in force at the time the tax is levied f continue in force for its collection notwithstanding the amendment or repeal of the taxing statute. See City of Indianapolis v. Morris 25 Ind. App N.E. 510 Leonard v. Indianapolis 9 Ind. App N.E. 725 City of Oakland v. Whipple 44 Cal. 303 Cooley on Taxation 3rd Ed. 499 State v. Sloss 83 Ala So. 745 Hooper v. State 141 Ala So Lee v. Walgreen Drug Stores Co. Fla So.2d Cf. Grammer v. Roman Fla. 2 D.C.A So.2d 443 for the general rule that statutes except for remedial legislation are addressed to the future also 84 C.J.S. Taxation 685 Sutherland Statutory Construction 3rd ed. Vol See also AGO as to application of new penalty provisions to back ques-tion col-lector assessments. AS TO QUESTIONS 4 5 and 6 Recorded executions under former Ch. 199 remain collectible and the accountable for the reasons and authorities cited in response to 3. assess-ments AS TO QUESTION 7 The implementation period described in covers the and levy made for the calendar year That period cannot be said to end on Dec for all purposes because quoted in full

4 76 ANNUAL REPORT OF THE ATTORNEY GENERAL above expressly extends a tax collectors accountability for taxes imposed neces-sary under this chapter until he shall have completely performed every duty devolving upon him as required by this chapter. Powers granted to collectors under for this period of implementation time therefore extend by implication until he shall have completely performed every duty devolving upon him as required by this chapter under AS TO QUESTION 8 The powers granted the department and collector by Ch as to col neces-sary lections for the 1971 intangible personal property tax roll are stated in supra directing the. department to provide any assistance to the tax collec-tion assessors and tax collectors during this period of implementation time to carry out the provisions of this act and in granting to the collector during the implementation period all powers relating to im-posed and enforcement of collections which are granted to the department. Definition of these powers can be made only by reference to those provisions of the new law such as and which vest in the department the power to collect intangible taxes interest and penalties by this chapter to issue warrants for delinquent tax penalties and cost of collection and otherwise complete the collection process. These powers for the collection of the assessments and levy made for the calendar year 1971 appear to be vested in the county tax collectors subject to the departments assistance and direction under the procedures.. used for collecting ad valorem taxes on other types of property. Section and 3. AS TO QUESTION 9 The collector by the terms of supra is relieved of account-ability for collection of taxes assessed for the calendar year 1971 when he herein-above shall have completely performed every duty devolving upon him as required by this chapter. The duties devolving upon him under this chapter detailed include the collection of taxes levied for 1971 or the completion of all steps toward such collection required by procedures used for collecting ad valorem taxes on other types of property. AS TO QUESTION 10 The department does not have the primary duty to collect intangible taxes due on the 1971 roll before or after Jan because that duty is placed on the county tax collector by supra. AS TO QUESTION 11 A continuing duty to collect the intangible taxes show on the 1971 tax roll is prescribed by and 4 discussed above. Clearly there can be no duty to collect without a corresponding duty to pay such taxes after Dec commis-sions AS TO QUESTION 12 there-fore The specific provisions of control a tax collectors collecting intangible taxes on 1971 tax roll. That section relates it to commissions calendar year 1971 Emphasis supplied. and is not in my opinion restricted to commissions for taxes collected during 1971 but applies instead to collection of all taxes levied for that year. AS TO QUESTION 13 ef-fective Although your final question appears to be unrelated to official functions of tax collectors I can refer you to the provisions of Ch Laws of Florida amending F. S. as created by Ch to omit subsection 2 July and to incorporate in subsection 1 a cross-reference to the 1

5 i tax ANNUAL REPORT OF THE ATTORNEY GENERAL 77 osed definition of money contained in the act. Although Ch contains the same lying error in such cross-reference as that contained in the text of tinder order Ch to which you refer am I informed that in the exercise of its authority eces- in such matters the legislative Division of Statutory Revision has corrected lying as a clerical error the definition reference so that upon official publication of effec that provision in the statutes the reference will be to money as defined in a. In any event the erroneous reference in the original language of would in my opinion be most reasonably regarded as surplusage col- leaving the statutory levy of one mill on the dollar upon money until the tive date of Ch tax 1 eces-g to February illec- CONSTITUTIONAL LAW ent. sions the SCHOOL BOARD MEMBERS CONSTITUTE OFFICERS-METHOD OF ELECTION NOT SUSCEPTIBLE TO AMENDMENT BY SPECIAL ACT im-cost To Bob Saunders Senator 7th District Gainesville vers 371 ents ad unt-he 1 Prepared by Rebecca Bowles Hawkins Assistant Attorney General QUESTION Is a special act providing for the nonpartisan election of school board members constitutionally valid in light of Art. III 11a1 State Const SUMMARY tired A special act that would provide for the nonpartisan election of rein- members of the district school board of Alachua County is of doubtful tion validity under Art. III 11a1 State Const prohibiting ling with certain exceptions special acts pertaining to the election Con-t jurisdiction or duties of officers... While the answer to your question is not free from doubt I am inclined to the view that a member of a district school board would he deemed to he of-ficers an axes officer within the purview Art. III 11a1 supra. The former provision the 1885 Constitution Art. III 20 prohibited special or local laws regulating the jurisdiction and duties any class except municipal officers... The doubt concerning the answer to your question was generated by the fact that no decision of an appellate court has been found he holding that a special law dealing with a particular county 1ec school board or school district violated this particular provision of the stitution. On the other hand it has been held that school district trustees are not within the purview of other constitutional provisions relating to officers. See State ex rel. Smith v. Hamilton Fla So. 742 and State ex rel. Itis- Landis v. Blake Fla So See also Savage v. Board of Public ates Instruction Fla So. 341 in which the court upheld a special law ere- authorizing the county school board to borrow money and issue interest-bearing fiing notes as against various constitutional attacks but not Art. III 20 and made the following broad statement The lawmaking power of the legislature necessarily extends to creating defining and limiting the powers and duties of hoard of public instruction and trustees of special tax school districts.. When read in context the court could only have meant that such legislative Lla power could be exercised through special as well as general laws.