Opinion No. (1980) ( 1980 )

REQUESTED BY: Dear Senator Haberman:

You have asked us whether subdivisions which have a statutory authorization to levy a tax up to a specific mill amount may utilize that statutory authorization or are they limited by the provisions of Neb.Rev.Stat. § 77-3412 et seq. (Supp. 1980), the Political Subdivisions Budget Limit Act of 1979, popularly known as the lid law.

You indicate in your request letter that you are considering legislation in the upcoming session in this area. For that reason we will answer your question.

In your question you point to natural resource districts which are authorized to levy a tax of up to one-quarter mill on all property in a ground water control area. In answer to your question we point out that Neb.Rev.Stat. 77-3423 (Supp. 1980) provides that:

"[No] governing body of any political subdivision shall adopt a budget statement pursuant to section 23-925, or pursuant to the charter or ordinances of a city with a home rule charter, in which the anticipated combined receipts for the ensuing fiscal year exceeds an increase of seven per cent above the combined receipts budget base."

The combined receipts budget base is defined in Neb.Rev.Stat. § 77-3421 as the total of funds received by a political subdivision from local tax sources and state tax sources.

Section 77-3426 authorizes a political subdivision to exceed the seven percent limitation where there is a newly authorized levy created by state law. This section also provides that `thereafter the receipts from such newly authorized tax shall be included in determining receipts from local tax sources.

We believe in construing these sections together one can only conclude that notwithstanding the fact that a political subdivision may be authorized to levy up to a specific mill amount if it is not so levying that amount it may not levy to that amount if such a levy would result in a violation of the seven percent limit on local subdivision budget increases. Thus the answer to your question is that the seven percent lid law takes precedence over a specific mill levy limitation upon political subdivisions.