If a property owner pays property taxes but skips the volunteer fire department dues that are listed on the same tax bill, can the county treat the property as tax-delinquent and put it through forfeiture and sale?

Plain-English summary

In unincorporated parts of Arkansas, volunteer fire departments are often funded by dues paid by every residence and business with an "occupiable structure" in the district. The dues are voter-approved: under A.C.A. § 14-20-108(a)(1)(B)(i)(a), a quorum court calls an election on the question after the volunteer fire department's chief and board chair file a request with the county clerk. If voters approve, the dues are listed on each property tax statement and collected by the county collector "at the same time and in the same manner as real property taxes."

In Washington County, the Prairie Grove-Farmington Rural Fire Association won that election on July 9, 2013. Some property owners then paid their property taxes but not the fire-association line item. State Representative Charlene Fite asked the AG how the collector should treat that. Could the collector record the taxes as delinquent? Could the county place a lien? Could the property be certified to the Land Commissioner for forfeiture and sale?

AG Leslie Rutledge said no to all three.

The "same manner" language in § 14-20-108 picks up the 10% delinquent-tax penalty in A.C.A. § 26-36-202(b), but it does not extend to the property-tax forfeiture procedure in A.C.A. § 26-37-101 et seq. That procedure exists to enforce the state's lien for taxes, and the lien is created by A.C.A. § 26-34-101(b), which runs from the first Monday of January. Other special-purpose tax-like collections (municipal improvement districts under § 14-90-805(a), suburban improvement districts under § 14-92-228, property owners' improvement districts under § 14-93-119, drainage districts under § 14-123-409) get an express statutory lien. Volunteer fire department dues do not. Earlier authority under § 14-20-108 to impose a lien for dues was repealed by Acts 2001, No. 984. The legislature has shown elsewhere that when it wants forfeiture and sale to apply, it says so explicitly (see § 14-92-232 for suburban improvement districts). The absence of comparable language in § 14-20-108 means the procedure does not apply to fire dues.

Question 1(c) about turning the property over to the Land Commissioner therefore becomes moot. With no lien, there is nothing to enforce through that mechanism.

The proper remedy is the one the statute provides: A.C.A. § 14-20-108(a)(1)(B)(i)(c)(2)(A) and (B) say that delinquent dues are to be reported to the Association, and the Association may pursue collection through court proceedings. That puts collection back in the volunteer fire department's hands, and forces it to use ordinary civil debt collection, not the property tax forfeiture pipeline.

The AG noted that without legislative clarification, she could not say much more about what additional remedies might be available. Prior AG opinions in 2002-032, 2004-224, and 2008-141 had reached the same conclusion and likewise asked the legislature to clarify.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

A.C.A. § 14-20-108 is the controlling statute for volunteer fire department dues in Arkansas. Subsection (a)(1)(B)(i)(a) provides the election trigger. Subsection (a)(1)(B)(i)(c)(1) directs that approved dues "shall be listed annually on real property tax statements and collected by the county collector at the same time and in the same manner as real property taxes." Subsection (a)(1)(B)(i)(c)(2)(A) and (B) direct that delinquencies be reported back to the Association for civil collection.

A.C.A. § 26-34-101(b) creates the lien for state and county taxes. A.C.A. § 26-36-202(b) imposes a 10% penalty on delinquent property taxes. A.C.A. § 26-37-101 et seq. is the certification, forfeiture, and sale procedure used to enforce that lien.

Compare to other special-purpose collections that do get a lien and (sometimes) a forfeiture procedure:

• Municipal improvement districts: A.C.A. § 14-90-805(a)
• Suburban improvement districts: A.C.A. § 14-92-228 (lien); § 14-92-232 (forfeiture and sale procedure)
• Property owners' improvement districts: A.C.A. § 14-93-119
• Drainage districts: A.C.A. § 14-123-409

Acts 2001, No. 984 amended § 14-20-108 to remove the prior statutory lien for unpaid dues. Without that lien, there is nothing for the forfeiture procedure to attach to.

Three prior AG opinions reached the same conclusion: Op. Att'y Gen. 2004-224 (the source of the long quoted passage in this opinion); Op. Att'y Gen. 2002-032; Op. Att'y Gen. 2008-141 (forfeiture proceedings are unavailable; legislative clarification needed for other remedies).

Common questions

How is "collected in the same manner as real property taxes" different from "collected as if it were real property taxes"?

That is exactly the line the AG drew. "Same time and same manner" means the collector handles the dues on the same schedule as taxes, in the same office, using the same paperwork. It does not mean the dues become taxes for all purposes. The 10% delinquent-tax penalty in A.C.A. § 26-36-202(b) attaches because it is a part of the collection mechanism. The forfeiture procedure in A.C.A. § 26-37-101 et seq. does not attach, because it depends on the existence of a tax lien on the property, and the dues statute does not create a lien.

Why did the legislature remove the lien provision in 2001?

The opinion does not explain the legislative motivation. Acts 2001, No. 984 simply removed the earlier authority for a lien for unpaid volunteer fire department dues. The practical effect was to take fire-dues collection out of the property-tax enforcement system entirely, leaving the fire association with only the civil court remedy.

What does a fire association have to do to collect overdue dues?

The collector reports the delinquency back to the Association under A.C.A. § 14-20-108(a)(1)(B)(i)(c)(2)(A) and (B). The Association then sues in the appropriate court. For dues amounts of a few hundred dollars, that means small claims court in most counties. Each unpaid year is potentially a separate claim. The Association can get a judgment, then pursue ordinary post-judgment collection (wage garnishment, bank levy, writ of execution). What it cannot do is shortcut the process by having the county take and sell the property.

Could a property be sold by the Land Commissioner for unpaid fire dues?

No. The Commissioner of State Lands receives property certified to the State for unpaid real property taxes under § 26-37-101 et seq. Because volunteer fire department dues do not become a tax-collection debt enforced by that procedure, the Commissioner has nothing to receive. Question 1(c) became moot once Question 1(a) and (b) were answered no.

Does this mean a homeowner can ignore fire-association dues?

Not without consequences. The dues are a legal debt approved by the voters of the district. The Association can sue and obtain a judgment, plus interest and possibly costs and attorney's fees if the underlying ordinance or contract provides for them. The judgment can then be enforced through standard civil collection methods. The only thing that does not happen is the automatic loss of the property through tax forfeiture.

Has the legislature fixed the ambiguity since 2015?

The AG explicitly invited legislative clarification, and the prior opinions back to 2002 had done the same. Whether the General Assembly has since amended § 14-20-108 to clarify the available remedies is a question to check against the current Arkansas Code before relying on this opinion's bottom-line conclusion.

Citations

Core statute: A.C.A. § 14-20-108 (volunteer fire department dues), specifically subsections (a)(1)(B)(i)(a) (election trigger), (a)(1)(B)(i)(c)(1) (collection on tax statement), and (a)(1)(B)(i)(c)(2)(A) and (B) (delinquency reporting).

Property tax procedure: A.C.A. § 26-34-101(b) (lien); A.C.A. § 26-36-202(b) (10% penalty); A.C.A. § 26-37-101 et seq. (certification and sale).

Comparable special-purpose collections: A.C.A. § 14-90-805(a) (municipal improvement districts); A.C.A. §§ 14-92-228, -232 (suburban improvement districts); A.C.A. § 14-93-119 (property owners' improvement districts); A.C.A. § 14-123-409 (drainage districts).

Repeal: Acts 2001, No. 984 (eliminated prior lien authority under § 14-20-108).

Prior AG opinions: 2004-224 (extensive prior treatment, quoted in this opinion); 2002-032; 2008-141.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-009
April 2, 2015
The Honorable Charlene Fite
State Representative
Post Office Box 7300
Van Buren, Arkansas 72956-0262
Dear Representative Fite:

You have requested my opinion on several questions concerning A.C.A. § 14-20-
108, which addresses volunteer fire department dues. As background for your
questions, you state that an election was held on July 9, 2013, in the
unincorporated part of Washington County served by the Prairie Grove-
Farmington Rural Fire Association ("Association") on the question of the levy of
the Association's dues on each residence and business with an occupiable
structure. You report that the voters approved the measure, which also provided
that the dues were to be listed annually on real property tax statements and
collected in the same manner as ad valorem taxes.

With this background in mind, you ask:

1. Is the non-payment of fire association dues collected by the county
   collector handled in the same manner as the non-payment of
   property taxes? For instance:
   (a) If a property owner in a fire association district pays
   his assessed property taxes but does not pay the fire
   association dues to the county collector, may the county
   collector record his property taxes as being delinquent?
   (b) If the county collector can record the property taxes
   as being delinquent, may the county place a lien on the
   property in an attempt to collect the delinquent fire
   association dues?
   (c) If a lien may be placed on the property, can the
   property be turned over to the Land Commissioner and
   sold at auction?
2. If the answer to Question 1 is no, what is the proper manner for a
   county collector or fire association to collect delinquent dues?

RESPONSE
With regard to Question 1(a), if recording the taxes as delinquent would mean the
property is subject to forfeiture proceedings for nonpayment, I believe the answer
is "no." The answer to Question 1(b) is "no," in my opinion. Question 1(c) is
therefore moot. It is my opinion in response to Question 2 that delinquencies are
to be reported to the Association for collection and that the Association may
enforce collection through court proceedings.

DISCUSSION
This office has previously issued several opinions addressing the available
remedies for nonpayment of volunteer fire department dues. The following
excerpt reflects the opinions' conclusion that the legislature has not clearly
provided for the collection of delinquent dues through forfeiture proceedings:

The language requiring collection of the dues "at the same time and
in the same manner" as real property taxes likely includes the 10%
penalty under A.C.A. § 26-36-202(b) that applies with respect to
delinquent real property taxes. . . . This phrase cannot, however, in
my opinion, reasonably be construed to include the certification
procedures under A.C.A. § 26-37-101 et seq. . . . These procedures
involve the forfeiture and sale of tax-delinquent property to
enforce the state's lien for taxes. The lien arises from the time state
taxes are assessed. See A.C.A. § 26-34-101(b) (Repl. 1997) ("[a]ll
taxes assessed shall be a lien upon and bind the property assessed
from the first Monday of January of the year in which the
assessment shall be made. . . .") The legislature has, similarly, given
liens for taxes in favor of municipal improvement districts (A.C.A. §
14-90-805(a)) and other various types of improvement districts. See,
e.g., A.C.A. § 14-92-228 (suburban improvement districts), 14-93-
119 (property owners' improvement districts), 14-123-409 (drainage
improvement districts). Additionally, the legislature has clearly
identified those instances in which collection may be enforced
through certification to the state for redemption or sale. See A.C.A. §
14-92-232 (suburban improvement districts). Unlike these taxes and
assessments, however, volunteer fire department dues do not
become a lien against the property. Nor is there any other language
in A.C.A. § 14-20-108 suggesting that the state certification
procedures apply. Although there was previous authority under §
14-20-108 for imposing a lien, a subsequent amendment removed
this authority. See Acts 2001, No. 984. Had the legislature intended
for the certification procedures to apply in case of delinquent
volunteer fire department dues, it could easily have so indicated.

Section 14-20-108 has not been amended to give a lien for volunteer fire
department dues. I agree with the previous opinions of this office that the
legislature has not clearly expressed its intent for the collection of delinquent dues
to be enforced through forfeiture and sale proceedings.

It is therefore my opinion that the answer to Question 1(a) above is "no" if
recording the taxes as delinquent would subject the property to forfeiture
proceedings for nonpayment.

The answer to Question 1(b) is "no," in my opinion, for the reasons explained
above. This renders moot Question 1(c).

With regard to Question 2 concerning the proper manner of collecting delinquent
dues, delinquencies are to be reported to the Association for collection and the
Association may pursue collection through court proceedings. I cannot opine
further in this regard absent legislative clarification.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.

LESLIE RUTLEDGE
LR/EAW:cyh