Can the Pennington County treasurer accept monthly installments on delinquent real-estate property taxes (in exchange for not starting tax-deed proceedings), and can the Pennington County sheriff accept installments on delinquent mobile-home taxes after the treasurer has issued a distress warrant?

Plain-English summary

Pennington County had two longstanding informal collection practices. The treasurer's office let real-property owners enter into multi-year installment agreements on delinquent real-estate taxes, in exchange for not initiating tax-deed proceedings. The sheriff's office, after receiving a distress warrant for delinquent mobile-home taxes, would meet with the owner and work out a payment plan rather than seize property.

Mr. Groff asked AG Roger Tellinghuisen whether either of those practices was lawful, and what happened to existing agreements if they were not.

Tellinghuisen split his answer between the two offices. For the treasurer, the relevant statute was SDCL 10-21-7, which lets the county commissioners authorize partial payment of taxes. With that authorization in place, the treasurer can accept partial payments. Without the commission's authorization, the treasurer has no authority to enter installment agreements on his own. Existing agreements without commission approval were not valid; the treasurer was personally liable for any county loss caused by failure to timely offer tax-sale certificates under SDCL ch. 10-23.

For the sheriff, the answer was a flat no. Once the treasurer issues a valid distress warrant, SDCL 10-22-9 obligates the sheriff to execute it. The sheriff has no statutory authority to step outside that command and negotiate an installment payment plan. The duty to execute is mandatory.

The treasurer's vulnerability to personal liability was the most striking part of the opinion. A treasurer who entered installment agreements without commission approval was running real risk. Tellinghuisen recommended speedy commission ratification of existing agreements.

Currency note

This opinion was issued in 1990 during AG Roger Tellinghuisen's tenure. 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. The tax collection statutes in SDCL Title 10 may have been amended since 1990; the specific procedures and timelines may differ.

What the opinion meant at the time

For Pennington County, the opinion held that the treasurer's existing installment agreements were not valid until the county commission approved them, and it noted the county's officers "may wish to seek speedy ratification" of those agreements. The treasurer was personally liable for any loss to the county from failing to timely offer tax-sale certificates.

For other South Dakota counties, the opinion located the threshold in SDCL 10-21-7: the county commission must authorize partial payments. With that authorization, the treasurer may accept partial-payment applications under the statutory conditions; without it, the treasurer has no authority to enter installment agreements.

For sheriffs, the opinion held that once the treasurer issues a valid distress warrant, the sheriff "is bound by law to execute it" and "simply does not have authority to accept partial payments under these circumstances."

Common questions

Q: How is "partial payment" defined for SDCL 10-21-7 purposes?
A: Earlier AG Opinion 71-23 said a payment of less than one-half of the current unpaid real-estate tax is a partial payment. Partial payment also requires the applicant's personal property taxes to be paid first, and if the applicant owns multiple tracts, the applicant must designate the tract to which the partial payments apply.

Q: Does the commission's authorization happen "upon application"?
A: Yes. SDCL 10-21-7 lets the commission authorize the treasurer to accept partial payments "upon application." Per Official Opinion 71-23, partial payment is permitted only after proper application and approval by the county commissioners.

Q: Does the no-sheriff-installment rule apply to all distress warrants or just mobile-home tax ones?
A: The opinion's reasoning applied to any valid distress warrant. SDCL 10-22-9 is the general distress warrant statute; the sheriff's duty to execute applies whenever the treasurer issues a valid warrant.

Background and statutory framework

South Dakota's property-tax collection regime relies on a layered enforcement structure. Real-property taxes that go unpaid result in tax-sale certificates after a statutory delay, which can ripen into tax deeds. Personal-property taxes (including mobile-home taxes) flow through a different track: the treasurer issues a distress warrant directing the sheriff to seize property.

Both tracks rest on the basic principle that tax-collection authority is statutory and the officers involved cannot freelance. The treasurer cannot accept partial payments without the county commission's authorization under SDCL 10-21-7, and the sheriff cannot negotiate around a distress warrant.

The treasurer's personal liability for failure to execute the statutory tax-sale procedures comes from the official-bonds framework: treasurers post bonds, and breach of duty exposes both the treasurer and the bond surety to claims for losses to the county.

The county commission's role under SDCL 10-21-7 is policy-setting plus case-by-case approval. The treasurer cannot bypass the commission.

Citations and references

Statutes:

• SDCL 10-21-7 (commission authorization for partial payments)
• SDCL 10-9 (mobile home taxes)
• SDCL 10-22-9 (distress warrant for personal property tax delinquencies)
• SDCL ch. 10-23 (tax sale certificates)

Prior AG opinions:

• Official Opinion 71-23 (definition of partial payment of property taxes)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=50

Original opinion text

OFFICIAL OPINION NO. 90-09

Tax installment payment agreements

Dear Mr. Groff:

You have requested an official opinion on the following factual situation:

FACTS:

1. For a number of years the Pennington County Treasurer's Office has engaged in a practice whereby real property owners could enter into an agreement to make monthly installment payments on delinquent real property taxes over a period of years. In exchange for the property owner's promise to make the installment payments, the Treasurer would agree to forego tax deed proceedings on the real property in question. When installment payments were received, the Treasurer would credit the payment to a non-interest bearing account and when the balance in the account reached a level sufficient to pay a delinquent installment together with the interest and penalty thereon, the Treasurer would automatically make the payment and issue a tax receipt.

2. For a number of years the Pennington County Sheriff's office has engaged in a practice of negotiating and accepting installment payments on delinquent personal property taxes, i.e., mobile home taxes levied pursuant to SDCL 10-9, after the Treasurer's Office has issued a distress warrant on the delinquent tax pursuant to SDCL 10-22-9. Upon receiving a distress warrant the practice of the Sheriff's Office is to request that the property owner come in and set up a payment plan acceptable to the Sheriff's Office. If an agreement is reached between the Sheriff's Office and the property owner and the property owner makes regular installment payments, the Sheriff's office will not make any levies on any property of the tax debtor.

Concerning these facts you have asked the following questions:

QUESTIONS:

1. Does a county treasurer have the authority under law to accept installment payments on delinquent real property taxes in exchange for refraining from initiation of tax deed proceedings?

2. After receiving a valid distress warrant does a county sheriff have the authority under law to accept installment payments on delinquent personal property taxes in exchange for refraining from levying on property which the tax debtor may own?

3. If these practices are not authorized, what is the status of the existing agreements made under the practices?

IN RE QUESTION NO. 1:

The answer to question one is contained in SDCL 10-21-7, which permits the county commissioners to authorize the county treasurer to accept partial payments of taxes upon application. This statute provides:

The county commissioners of any county may authorize the county treasurer to accept partial payments of taxes, upon application, thereof, any time after January first to apply against the taxes due. No partial payment of real property taxes shall be permitted unless and until all personal property taxes of the applicant are first paid. In cases where the applicant for partial payment owes taxes on more than one tract or parcel of real property, he must, at the time of application for the privilege of partial payment, designate the tract or parcel upon which said partial payments are to be first applied.

Official Opinion 71-23 answered the question of what constitutes partial payment of property taxes by explaining that a payment of less than one-half of the current unpaid real estate tax is a partial payment. The opinion also pointed out that partial payment is permitted only after proper application and approval by the county commissioners.

My answer to your first question is "Yes, when authorized by the county commissioners."

IN RE QUESTION NO. 2:

Once the treasurer has issued a valid distress warrant to the sheriff, that officer is bound by law to execute it. The sheriff simply does not have authority to accept partial payments under these circumstances.

My answer to your second question is "No."

IN RE QUESTION NO. 3:

No agreement made by the treasurer is valid or effective unless and until it is approved by the county commission. Until such approval occurs, the treasurer is personally liable for any loss the county may suffer as the result of a failure to timely offer tax sale certificates as provided in SDCL ch. 10-23. The appropriate officers of the county therefore may wish to seek speedy ratification of any existing agreements by the county commission.

Respectfully submitted,

ROGER A. TELLINGHUISEN

ATTORNEY GENERAL

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