Tax Type
Set-Off Debt Collection Act
Description
Paycheck Deduction for Delinquent Taxes Owed
Topic
Collection of Delinquent Tax
Local Taxes Discussion
Date Issued
04-02-1987
[Opinion - Virginia Attorney General: 1987 at 290]
REQUEST BY: Honorable Anita S. Wilson Treasurer for Middlesex County
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You advise that you have a dual responsibility as treasurer for Middlesex County. In addition to serving as treasurer, you are also the fiscal agent for the Middle Peninsula Regional Security Center ("Regional Jail"), a regional jail established under §§ 53.1-105 through 53.1-115.1 of the Code of Virginia. You ask whether you may deduct funds from the regular paycheck of a Regional Jail employee who is a Middlesex County resident to pay Middlesex County taxes owed by the employee.
I. Relevant Statutes
Section 58.1-3132 provides, in part:
[The treasurer] shall receive, in payment of the county or city levy, any county or city warrant drawn in favor of any taxpayer, whether such warrant has been entered in the treasurer's book or not. However, if the warrant has been transferred it shall be subject to any county or city levy owing by the taxpayer in whose favor the warrant was issued. [Emphasis added.]
Section 58.1-3133 provides:
In the payment of any warrants lawfully drawn, the treasurer paying such warrants may first deduct all taxes due from the party in whose favor the warrant is drawn. If such warrant is insufficient to pay the entire amount due, then such treasurer shall credit the tax bill by the amount of the warrant. [Emphasis added.]
As to the operating funds for regional jails, § 53.1-112 provides:
Except as provided in § 53.1-114, the expenses of operating and maintaining a jail . . . shall be borne by the participating political subdivisions. Such participation shall be based on the percentage of the total cost for such operation that the number of prisoner days bears to the total number of prisoner days confined therein, plus their proportionate part of the fixed cost for such maintenance and operation. [Emphasis added.]
Section 53.1-114 provides that "counties and cities or any combination thereof operating a regional jail or jail farm shall be paid the reasonable cost of maintaining the facility as provided for in § 53.1-85."1
II. Warrants Drawn on Funds of Regional Jail Are Not Warrants of Middlesex County
According to §§ 53.1-85, 53.1-112 and 53.1-114, the political subdivisions participating in the operation of a regional jail bear proportionate parts of the operating costs, and the State reimburses the reasonable costs to the fiscal agent of the facility.
Pursuant to the written Agreement dated November 1, 1975 ("Agreement"), between the five counties establishing the Regional Jail, the treasurer of Middlesex County is appointed the fiscal agent "to serve at the joint will of the parties, and all records of accounts and all revenues and disbursements shall be maintained in a separate account known as the Jail Fund." (Emphasis added.) The Agreement also provides that the fiscal agent "shall be responsible for depositing all funds received for the regional jail and shall issue all checks for disbursements on vouchers of the administrative officer."2 (Emphasis added.)
I do not find either in the Agreement or in §§ 53.1-105 through 53.1-115.1, the statutes concerning establishment of regional jails, that the operating funds of the Regional Jail belong to the participating political subdivisions individually. According to the Agreement, they are specifically deposited in a separate account known as the "Jail Fund." There is no authorization for Middlesex County to draw checks against the Jail Fund. The Agreement specifically provides that the fiscal agent "shall issue all checks for disbursements on vouchers of the administrative officer." The checks drawn, therefore, are Regional Jail checks, and not Middlesex County checks.
III. Both §§ 58.1-3132 and 58.1-3133 Apply Only to County or City Warrants
Section 58.1-3132 permits treasurers to use setoff principles to collect the "county or city levy," i.e., to credit a delinquent tax bill by the amount of a "county or city warrant" drawn in the taxpayer's favor. This authority includes the ability to deduct delinquent county or city taxes from the paychecks of county or city employees. See Reports of the Attorney General: 1978-1979 at 289; 1964-1965 at 320.
Section 58.1-3133, however, ostensibly permits treasurers to credit a taxpayer's delinquent tax bill by the amount of "any warrants lawfully drawn" in the taxpayer's favor. (Emphasis added.) In the situation you pose, the Regional Jail's checks are drawn against the Jail Fund. § 58.1-3133, if read literally, would seem to permit a treasurer to deduct the city or county's delinquent taxes3 from any check he may pay to a delinquent taxpayer, including checks he pays as fiscal agent for a regional government enterprise. Such a result, however, is violative of the common law principle of setoff, which requires that demands be mutual, that is, the claims or debts must be owing between the same parties. 20 Am. Jur. 2d Counterclaim, Recoupment, Etc. § 74 (1965).
It is a rule of statutory construction that if the sense of a statute is doubtful, such construction should be given, if possible, as will not conflict with general principles of law. 17 M.J. Statutes § 52 (1979). Where there has been a general revision of the laws, the presumption is that the old law was not intended to be changed unless a contrary intention plainly appears in the new. Id. § 47. In the recodification of Title 58.1, § 58.1-3133 (formerly § 58-922) was amended. The former section provided, in part:
In the payment of any warrants lawfully drawn on account of allowances made against the Commonwealth the treasurer of any county or corporation paying such warrants shall first deduct all taxes due by the party in whose favor the warrant is drawn. . . . [Emphasis added.]
The underlined words are the pertinent changes in the amendments to former § 58-922. The phrase "on account of allowances made against the Commonwealth" was deleted and "shall" was changed to "may." The comment following the section in the recodification report states: "Specific language dealing with allowances made against the Commonwealth has been deleted. Requirement is now discretionary."4 The comment does not, however, make it clear whether the intent of the change was to avoid a conflict with the general principle of setoff that the demands be mutual.
Based upon the above-quoted rules of statutory construction, therefore, it is my opinion that § 58.1-3133 should not be construed to enlarge the authority for treasurers to set off delinquent taxes, but should be construed to permit only the setoff of delinquent county or city taxes against county or city warrants drawn in favor of the taxpayer, as is presently allowed by § 58.1-3132. § 58.1-3133 is permissive concerning the duty of the treasurer to exercise the right of setoff and, therefore, is harmonious with § 58.1-3132 in this regard.5
IV. Conclusion: Setoff Not Available for County Treasurer Who Is Fiscal Agent for Regional Jail to Recover Delinquent Taxes from Employees of Regional Jail
In summary, the warrant from which you wish to deduct Middlesex County delinquent taxes is a warrant drawn by the Regional Jail, not Middlesex County. Without a clear indication of legislative intent to the contrary in the amendment to § 58.1-3133, it is my opinion that the scope of this statute is no more extensive than § 58.1-3132; that is, setoff of county or city delinquent taxes may only be exercised against county or city warrants drawn in favor of the taxpayer. It is further my opinion, therefore, that you may not deduct funds from the paychecks of the Regional Jail's employees to pay Middlesex County taxes due from the employees.
1 Section 53.1-85 provides for payment of such costs by the Compensation Board in quarterly installments to the fiscal agent of the facility.
2 Pursuant to the Agreement, the superintendent who is appointed by and directly responsible to the Regional Jail Board is the administrative officer for the Regional Jail.
3 I am aware of no authority which permits a treasurer to collect taxes not owed to the jurisdiction of which he is treasurer. See § 58.1-3127(A); 1983-1984 Report of the Attorney General at 342; cf. § 15.1-40.2 (treasurers may serve two jurisdictions).
4 Report of the Virginia Code Commission on the Revision of Title 58, H. Doc. No. 16, 1984 Sess. 322.
5 Section 58.1-3132 is permissive and not mandatory, according to previous Opinions of this Office. See Reports of the Attorney General: 1978-1979, supra; 1964-1965, supra; 1958-1959 at 280.
Attorney General's Opinion