[1992/oagheade.htm]

OAG 92-23

February 12, 1992

Hon. John D. Dale, Jr.

P.O. Box 494

Taylorsville, Kentucky 40071

Dear Mr. Dale:

You have asked whether a benefit assessment imposed by the Spencer County Flood Wall Commission may be included on the county's regular property tax bills. We conclude that it may not.

You state that the commission was formed under the Drainage and Reclamation Act of 1918, which is codified in KRS chapter 268. You point out that KRS 268.470 requires that the assessment be apportioned on the basis of benefits to the property, while KRS 104.670 allows the assessment of a true property tax for flood control with the tax being added to the regular property tax bill.

While chapters 268 and 104 both deal with flood control, they provide entirely separate means of establishing and financing flood control districts. Under chapter 268, the district is created by order of the fiscal court and is funded by beneficial assessments. KRS 268.140; 268.340. A beneficial assessment is not a tax. Board of Drainage Commissioners v. Graves County, 209 Ky. 193, 272 SW. 387 (1925). The assessment is collected under the mechanism established in KRS 268.420. This mechanism differs from regular property tax collection in several respects, including the calculation of penalties and credit for early payment.

Under chapter 104, the district is established by the secretary for natural resources and environmental protection. KRS 104.460. The tax authorized, as pointed out above, is a property tax that is added to the regular property tax bills. KRS 104. 670.

Since the Spencer County Flood Wall Commission was organized under chapter 268, the provisions in that chapter apply. The Commission must follow the tax collection procedure set out in chapter 268, which precludes the inclusion of the assessment on county property tax bills.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General