Judges: Robert T. Stephan, Attorney General
Filed Date: 2/18/1993
Status: Precedential
Modified Date: 7/5/2016
Michael G. Coash El Dorado City Attorney 220 E. First P.O. Box 792 El Dorado, Kansas 67042
Dear Mr. Coash:
As city attorney for the city of El Dorado, you request our opinion concerning whether the city can hold an election this summer to continue the city retailers' sales tax which will sunset on October 1, 1994. Your concern is the interpretation of K.S.A.
"The collection of any sales tax of a county or city approved at any other election shall commence on the first day of the calendar quarter next following the 60th day after the date of the election authorizing the levy of such tax."
Assuming the voters approved the continuation of the tax, collection for this tax would not commence until 1994 when the present ordinance providing for the levy of the current sales tax expires.
There is no case law on this point nor has this office addressed any similar inquiry. Therefore, it will be necessary to examine the election and collection mechanics of this particular tax as well as some legislative history on this particular provision.
Pursuant to K.S.A. 1992 Supp.
The question then becomes whether it is mandatory that the department of revenue commence collection on the first day of the calendar quarter following the 60th day after the date of the election or whether this provision is directory. In order to answer this question, it is necessary to review the legislative history of K.S.A.
The city retailers' sales tax provisions were originally placed in chapter 79 of the Kansas statutes annotated which covered all taxing measures. Article 44 of chapter 79 addressed local sales and earning taxes. K.S.A. 1971 Supp. 79-4426 provided, in relevant part, as follows:
"Collection of city sales taxes shall commence on the first day of the month except in no event shall collection . . . begin . . . prior to the first day of the month next following the 60th day after the date of the election authorizing the levy."
This language continued when the local sales tax provision was transplanted into chapter 12 (cities and municipalities) until 1985 when the language was changed as follows:
"The collection of any sales tax of a county or class B city approved at any other election shall commence on the first day of the calendar quarter next following the 60th day after the date of the election authorizing the levy of such tax."
In 1990, K.S.A.
It appears from the language of K.S.A.
In determining whether statutory provisions are mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time in which an official act is to be done, and it is intended to secure order, system and dispatch of public business, the provision is directory." City of Hutchinson v. Ryan,
The department of revenue is currently collecting the sales tax under the present ordinance and there would be no disruption should the voters decide to continue the tax after the October 1, 1994 sunset date. In addition, the election notice must state the rate and effective date of the proposed tax. K.S.A. 1992 Supp.
Very truly yours,
ROBERT T. STEPHAN Attorney General of Kansas
Mary Feighny Assistant Attorney General
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