Can a Tennessee county levy the $10 jail-construction litigation tax on top of both $25 litigation taxes under Tenn. Code Ann. § 67-4-601(b)?

Plain-English summary

A state representative asked whether Tennessee counties could levy three separate "privilege taxes on litigation" under Tenn. Code Ann. § 67-4-601(b), or whether the statute required them to choose. The three taxes were a $10 tax under subsection (b)(1) earmarked for jail and courthouse construction or related debt, a $25 tax under subsection (b)(5), and a $25 tax under subsection (b)(6) for courthouse security.

The AG concluded that all three could be levied on the same civil or criminal case. Each subsection opens with "notwithstanding any law to the contrary," and subsection (b)(1) expressly says its $10 tax is "in addition to all other such privilege taxes authorized by law." Subsection (b)(7)(A) explicitly confirms that a county may adopt the (b)(5) or (b)(6) tax "or both." Read together, the AG concluded the three taxes operated independently, so long as each was adopted by a two-thirds vote of the county legislative body and its proceeds were used for the purpose the statute identifies.

Currency note

This opinion was issued in 2016. 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

Tennessee gives counties a limited menu of taxes they can levy locally. Among them is the "privilege tax on litigation," a per-case charge imposed when a civil or criminal action is filed in county courts (other than municipal courts). The opinion examined three of those taxes:

• Subsection (b)(1): a $10 per-case tax, with proceeds restricted to jail or workhouse construction, reconstruction, or upgrading; retirement of related debt; or courthouse renovation. The statute expressly provides the tax is "in addition to all other such privilege taxes authorized by law."
• Subsection (b)(5): a $25 per-case tax with no specific use restriction in the quoted text.
• Subsection (b)(6): a $25 per-case tax dedicated to courthouse security, "in addition to those purposes identified in subdivision (b)(1)."

Each requires a two-thirds vote of the county legislative body. Subsection (b)(7)(A) provides that a county "may adopt the privilege tax in subdivision (b)(5) or (b)(6), or both."

The AG's reading rested on three textual hooks. First, the "notwithstanding any law to the contrary" clause at the start of each subsection signals that the legislature wanted these provisions to operate independently of one another. Second, subsection (b)(1)'s explicit "in addition to all other such privilege taxes authorized by law" language directly addresses the stacking question. Third, the "or both" language in subsection (b)(7)(A) is incompatible with reading subsections (b)(5) and (b)(6) as mutually exclusive, and by parallel reasoning the (b)(1) tax is not made exclusive of either of them.

The opinion did not address how high a per-case total could go, whether constitutional due-process challenges might cap the stacked tax, or what happens if a county misapplies the proceeds. It was a question of statutory authority only.

Common questions

Q: How much could a litigant be charged in total?
A: Under the three subsections analyzed, up to $60 per case ($10 plus $25 plus $25), if a county legislative body had adopted all three by a two-thirds vote. Other privilege taxes elsewhere in the code could add to that total.

Q: Do all three taxes apply automatically?
A: No. Each requires affirmative adoption by a two-thirds vote of the county legislative body. A county that has adopted only the $25 (b)(5) tax does not collect the (b)(1) or (b)(6) taxes.

Q: Can proceeds from the $10 tax be used for general county expenses?
A: No. Subsection (b)(1) restricted them at the time of the opinion to jail/workhouse construction, reconstruction, or upgrading; retirement of related debt; or courthouse renovation. Using the funds for unrelated purposes would conflict with the statutory earmark.

Q: Do these taxes apply in municipal courts?
A: Subsection (b)(1)'s text excludes cases "instituted in municipal courts." Counties could levy on civil and criminal cases instituted in the county's own courts.

Q: What about cases that involve a fee waiver or indigent litigants?
A: The opinion did not address that question. Practical collection of privilege taxes can interact with statutes governing indigency and fee waivers, but those interactions were not before the AG.

Citations and references

Statutes (as cited in the opinion):

• Tenn. Code Ann. § 67-4-601(a)
• Tenn. Code Ann. § 67-4-601(b)(1)
• Tenn. Code Ann. § 67-4-601(b)(5)
• Tenn. Code Ann. § 67-4-601(b)(6)
• Tenn. Code Ann. § 67-4-601(b)(7)(A)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-010.pdf

Original opinion text

Scope of a County's Authority to Charge a Privilege Tax on Litigation

Question
Does Tenn. Code Ann. § 67-4-601(b) permit a county to levy a litigation tax of $10 under
subsection (b)(1) in addition to the $25 litigation tax permitted by subsection (b)(5) and the $25
litigation tax permitted by subsection (b)(6)?

Opinion
Yes.

ANALYSIS

Counties are authorized by statute "to levy a local litigation tax." Tenn. Code Ann. § 67-
4-601(a). Specifically, Tenn. Code Ann. § 601(b)(1) authorizes a county to levy a $10 litigation
privilege tax "in addition to all other such privilege taxes authorized by law":

(1) Notwithstanding any other law to the contrary, each county by resolution of its
legislative body, adopted by two-thirds (2/3) majority vote, may levy a privilege
tax on litigation in all civil and criminal cases instituted in the county, other
than those instituted in municipal courts, in addition to all other such privilege
taxes authorized by law. Any tax levy adopted under this subsection (b) shall
not exceed ten dollars ($10.00) per case; and the proceeds shall be used
exclusively for the purposes of jail or workhouse construction, reconstruction
or upgrading, or to retire debt, including principal and interest and related
expenses, on such construction, reconstruction or upgrading or for courthouse
renovation.

Subsection 601(b)(5) authorizes a $25 litigation tax:

(5) Notwithstanding any law to the contrary, upon the adoption of a resolution by
a two-thirds (2/3) majority vote of a county legislative body, a privilege tax on
litigation in all civil and criminal cases may be levied in an amount not to
exceed twenty-five dollars ($25.00) per case.

And subsection 601(b)(6) authorizes another $25 litigation tax:

(6) Notwithstanding any law to the contrary, upon the adoption of a resolution by
a two-thirds (2/3) majority vote of a county legislative body, a privilege tax on
litigation in all civil and criminal cases may be levied in an amount not to
exceed twenty-five dollars ($25.00) per case, to be used exclusively for court
house security, in addition to those purposes identified in subdivision (b)(1).

Subsection 601(b)(7)(A) makes it clear that, "[n]otwithstanding any other law to the
contrary, a county may adopt the privilege tax in subdivision (b)(5) or (b)(6), or both."

Thus, subsections 601(b)(1), (b)(5), and (b)(6) permit counties to levy three separate taxes
on the privilege of litigation. Each of those subsections begins with the language
"[n]otwithstanding any law to the contrary," which in effect grants counties the authority to impose
each subsection's tax independently of the others. Furthermore, subsection (b)(1) explicitly states
that a county "may levy a [$10] privilege tax on litigation . . . in addition to all other such privilege
taxes authorized by law." (Emphasis added.) Since the $25 litigation privilege taxes authorized
by subsections (b)(5) and (b)(6) are "other such privilege taxes authorized by law," the $10
litigation tax authorized by subsection (b)(1) may be levied in addition to either or both of the $25
litigation taxes.

In sum, the plain language of Tenn. Code Ann. § 67-4-601 permits counties to levy all or
any of the three litigation taxes authorized under Tenn. Code Ann. § 67-4-601(b)(1), (b)(5), and
(b)(6), so long as each tax is adopted and its proceeds are used in accordance with the applicable
statutory requirements.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAMES P. URBAN
Assistant Attorney General

Requested by:
The Honorable Pat Marsh
State Representative
G-19A War Memorial Building
Nashville, Tennessee 37243