Judges: Harold F. X. Purnell Assistant Attorney General
Filed Date: 4/2/1979
Status: Precedential
Modified Date: 7/5/2016
Harry L. Coe, Jr. Executive Director Department of Revenue Tallahassee
QUESTIONS:
1. Is the tax collector of a county authorized to obtain a refund from the governing body of the county for dishonored checks representing payment for occupational license taxes under Ch. 205, F. S., when such checks were dishonored subsequent to disbursement of the funds represented by the checks by the tax collector to the county treasury?
2. If the tax collector is not authorized to obtain a refund from the county governing body in the above-referenced situation, may the dishonored check be treated as an office expense of the tax collector if the procedures regarding collection efforts delineated in s.
3. If such dishonored checks may not be treated as an office expense after compliance with the procedures delineated in s.
SUMMARY:
The tax collector of a county is not authorized to obtain a refund from the county treasury for dishonored checks representing payment for occupational license taxes. Such checks when deposited in the county treasury pass from the collector's control into the public treasury, and payments of county funds may be made only pursuant to the county budget or some legislative act. If the collector properly followed statutory procedure in the handling of a dishonored check, he would not be personally liable. The tax simply would not be paid. If, however, the collector disbursed money from other sources in his office in payment of the check which subsequently was dishonored, the collector would be personally liable for any shortage in the other public funds from which he made payment into the county treasury on account of the dishonored check.
AS TO QUESTION 1:
Question 1 must be answered in the negative. When the county tax collector pays over to the county treasury moneys representing occupational license tax payments, such moneys pass from the tax collector's control into the public treasury. Seaboard Airline Railway Company v. Allen,
Section
Since s.
AS TO QUESTION 2:
Question 2 is answered in the negative. It is a general rule of law that:
In the absence of statutory requirement, those responsible for collecting taxes are not obligated to accept checks or drafts in payment of taxes, and even when checks or drafts are accepted, they do not operate to discharge the tax until they are in fact paid. [31 Fla. Jur. 463 Taxation s. 308.]
Section
Any check received by the office of the collector which is returned by the bank upon which the check is drawn shall be the personal liability of the tax collector unless the collector, after due diligence to collect the returned check, forwards the returned check to the state attorney of the circuit where the check was drawn for prosecution. This subsection shall not apply to ad valorem taxes, in which case the collector shall proceed under chapter 197.
This is a legislative reversal of the general principle of law enunciated in AGO 064-91 that:
. . . The various tax collectors should be advised that they should accept personal checks only at their peril. There is nothing in the statutes which requires or authorizes them to accept personal checks. Therefore, if they do so, and the check is ultimately not paid, then the tax collector would be personally liable for the amount of the check.
In light of s.
Section
Each [county] officer shall, not later than 7 working days from the close of the week in which the officer received the funds, distribute the money which is required to be paid to other officers, agencies, funds, or persons entitled to receive the same; provided, that distributions or partial distributions may be made more frequently; and provided further, that money required by law or court order, or by the purpose for which it was collected, to be held and disbursed for a particular purpose in a manner different from that set out herein shall be held and disbursed accordingly. (Emphasis supplied.)
Additionally, s.
Except when another procedure is prescribed by law, ordinance, or court order as to particular funds, the tax collector shall, as soon as feasible after collection, deposit in a bank designated as a depository of public funds, as provided in s. 659.24, all taxes, fees, and other collections received by him and held prior to distribution to the appropriate taxing authority. Immediately after such funds have cleared and have been properly credited to his account, the tax collector shall invest such funds according to the provisions of this section. . . . (Emphasis supplied.)
It is well settled in this state that public officers are held strictly accountable in their positions as custodians of public funds and may disburse such funds only in the manner provided by statute. Palbicke v. Lee,
In AGO 077-120 it was noted that ``the acceptance of a check by a public officer constitutes only conditional payment, and if the check is never presented or is dishonored, the tax or fee remains a charge.' If the tax collector fulfills the requirements of s.
AS TO QUESTION 3:
Question 3 has in general been answered in the response to question 2. Pursuant to s.
Section
Any check, draft, or other order for the payment of money in payment of any licenses, fees, taxes, commissions or charges of any sort authorized to be made under the laws of the state and deposited in the State Treasury as provided herein, which may be returned for any reason by the bank or other payor upon which same shall have been drawn shall be forthwith returned by the State Treasurer for collection to the state officer or the state agency making the deposit. In such case, the Treasurer is hereby authorized to issue a debit memorandum charging the proper fund or account to which same shall have been originally credited and shall send a copy of said debit memorandum to the state agency making the deposit and to the Comptroller stating the reasons for returning the said check, draft, or other order. Such procedure for handling noncollectible items shall not be construed as paying funds out of the State Treasury without an appropriation, but shall be considered as an administrative procedure for the efficient handling of state records and accounts.
Although such a procedure would appear to be an appropriate method for resolving the instant matter, the Legislature has not provided similar statutory authority to the tax collector. Since the tax collector has ``only such powers and duties and responsibilities as are provided by law,' AGO 079-28, this office is powerless to authorize utilization of a procedure similar to s.
In summary, the tax collector, in the absence of express statutory authority, is not authorized to obtain a refund of moneys from the governing body of the county, which moneys represent the payment of occupational license taxes pursuant to a check which was dishonored subsequent to the disbursement of the funds represented by the check to the county treasury. Further, if the tax collector complies with the provisions of s.
Prepared by:
Harold F. X. Purnell Assistant Attorney General