Opinion No. Oag 60-82, (1982)

71 Op. Att'y Gen. 189

• Court: Wisconsin Attorney General Reports
• Decided: October 15, 1982
• Status: Published

Opinion

GLENN L. HENRY, Corporation Counsel Dane County

You request my opinion on the applicability and interpretation of sec. 74.80(2), Stats., as created by ch. 167, Laws of 1981. Section 74.80(2), Stats., states:

The board of any county or the city council of any city authorized by law to collect and sell its own taxes may by ordinance impose a penalty of 6% or less, in addition to the interest under sub. (1), on any overdue or delinquent real estate taxes and special assessments. The ordinance may specify that the penalty under this subsection shall apply to any real estate taxes and special assessments that are overdue or delinquent on the effective date of the ordinance. The ordinance may specify that the penalty under this subsection shall apply to any real estate taxes and special assessments that become overdue or delinquent on or after the January 1 preceding the effective date of this subsection (1981). The ordinance may specify that any or all of the real estate taxes and special assessments on an owner-occupied residence or farm is not subject to the penalty under this subsection. The ordinance may specify that the county treasurer shall exclude the additional revenue generated by the penalty from the distributions required by ss. 74.03(7) and 74.031 (12)(c) and (d).

Chapter 167, Laws of 1981, was published April 15, 1982, and by reason of sec. 990.05, Stats., became effective on April 16, 1982.

Your first question is whether the six percent penalty is a flat penalty or a penalty calculated at one half of one percent per month.

In my opinion, sec. 74.80(2), Stats., allows counties and cities to impose a flat penalty of six percent or less.

The Wisconsin Supreme Court has stated that "[w]here the legislature uses two different phrases . . . in two paragraphs in the same section, it is presumed to have intended the two phrases to have different meanings." Armes v. Kenosha County,81 Wis.2d 309, 318, 260 N.W.2d 515 (1977). Subsection (1) of sec. 74.80, Stats., provides for an interest rate of "one percent per monthor fraction of a month" while subsection (2) provides for "a penalty of 6%." Had the Legislature wished to provide for a penalty of one half of one percent per month in subsection (2), it could have used language similar to that used in subsection (1). Subsection (2) provides that the penalty may be less than six percent but includes no language which would permit the penalty to be calculated on a per month basis. Therefore, I conclude that the plain meaning of the wording in subsection (2) is intended to impose a flat penalty. The penalty is calculated only once; at six percent (or lesser percentage provided for) of the value of the overdue or delinquent taxes. Compare secs.71.13(1)(a) and 71.20(5)(c), Stats., with secs. 71.13(1)(b) and71.20(5)(b), Stats.

Your second question is whether a county or city may impose the penalty on delinquent taxes which became due prior to the January 1 preceding the effective date of the subsection. I am of the opinion that it can, at its option. The first, second and third sentences of the subsection are relevant to your inquiry and each must be read in light of the meaning of the other. State v.Wachsmuth, 73 Wis.2d 318, 323, 243 N.W.2d 410 (1976). The first sentence permits imposition of a penalty "in addition to the interest under sub. (1), on any overdue or delinquent real estate taxes and special assessments." The second sentence plainly states that the penalty may be imposed and "apply to any realestate taxes and special assessments that are overdue or delinquent" at the time the ordinance is adopted. This would include all overdue taxes regardless of the date upon which they became overdue. Had the Legislature intended the second sentence to operate only as to taxes which might become overdue in the future, it could have included the words "that become overdue" (after the effective date of the ordinance) as it did in the third sentence. When the one time six percent or less penalty is applied to taxes which are overdue or delinquent at the time an ordinance is adopted, there is no retroactive application of the penalty. In such case, the taxes are overdue and delinquent and it is immaterial as to the date on which they became overdue and delinquent.

The third sentence makes it possible for counties and cities to adopt an ordinance and to limit application of the penalty to overdue taxes of a certain class or vintage. It permits counties and cities to choose to impose the penalty on taxes as they become overdue after the adoption of any ordinance. It also permits a county or a city to choose to limit the application of the penalty so as to not be applicable to all taxes which were overdue and delinquent at the date of enactment of the ordinance. The ordinance may provide that the penalty be applicable only to those taxes which become or became overdue or delinquent on or after January 1, 1982, which was the January 1 preceding the effective date of chapter 167, Laws of 1981. However, to interpret the statute as authorizing application of the penalty only to those taxes which become delinquent after January 1 of the year preceding the effective date of sec. 74.80(2), Stats., would ignore the plain language of the second sentence of the section. Effect must be given to all the provisions of a statute.Wachsmuth, 73 Wis.2d at 324.

I, therefore, conclude that a county or city may adopt an ordinance which imposes a penalty on any overdue or delinquent taxes regardless of when they became overdue. This interpretation is consistent with the first sentence which uses the terms "any overdue or delinquent real estate taxes and special assessments." "Any" means "all" or "every." Falk v. Tax Comm., 218 Wis. 130,134, 259 N.W.2d 624 (1935)

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