STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5844

January 8, 1981

INCOME TAX ACT:

Credit for ad valorem property taxes on the homestead by senior citizens

MUNICIPALITIES:

Waiver of collection fees and interest for senior citizens by county, city or township

SENIOR CITIZENS:

Waiver of collection fees and interest on ad valorem property taxes

In townships, cities and counties where the governing body has voted to waive collection fees and interest for senior citizens who have timely filed their claims for ad valorem property tax credits on the homestead and are unable to make timely payment of their property taxes until the credit is received from the state, the senior citizen shall receive a waiver of all or part of the collection fees and interest, as may be applicable.

The Honorable Mary Keith Ballantine

State Representative

The Capitol

Lansing, Michigan

You inform me that certain of your constituents, who are senior citizens, were unable to pay their ad valorem property taxes on time because the homestead income tax refund from the state was not received until after the due date on the taxes. At the time they sought to pay their taxes, they were required to pay certain collection fees and interest. Based upon these facts, you request my opinion on the following question:

Your question relates to ad valorem property taxes which become due on December 1 of a given calendar year and are payable by February 14 of the succeeding calendar year. If payment is made by the due date, the Legislature has empowered the township or city treasurer to add a one percent collection fee. However, if the township treasurer receives a salary, the township board may waive all or part of the one percent collection fee for ad valorem property taxes paid before February 15. The city council or commission may waive all or part of the one percent collection fee for taxes paid on or before the due date if the city treasurer or collection officer is paid a salary. 1893 PA 206, Sec. 44, as last amended by 1980 PA 252; MCLA 211.44; MSA 7.87. On taxes paid after February 14, the Legislature has, in 1893 PA 206, Sec. 44, supra, also empowered the governing body of a township or a city to authorize the treasurer or collection agent to add to the tax due and the one percent collection fee an additional collection fee equal to 3 percent of the tax involved.

In 1893 PA 206, Sec. 44(5), supra, the Legislature has made the waiver of the additional collection fee for senior citizens subject to the following express condition:

After the last day in February, delinquent ad valorem property taxes must be paid to the county treasurer, accompanied by interest computed at the rate of one percent per month, plus a 4 percent collection fee. 1893 PA 206, Sec. 59, as last amended by 1980 PA 48; MCLA 211.59; MSA 7.103.

The Legislature has also provided a measure of protection to senior citizens in 1893 PA 206, Sec. 59, supra, as to the payment of collection fees and interest upon delinquent ad valorem property taxes, in pertinent part, as follows:

It is also necessary to consider 1967 PA 281, ch 9, Sec. 501 et seq; MCLA 206.501 et seq; MSA 7.557(1501) et seq, which provides for certain property tax credits on the homesteads of senior citizens on state income taxes. In 1967 PA 281, ch 9, supra, Sec. 514, the Legislature has defined the term 'senior citizen' to be 'an individual, or either 1 of 2 persons filing a joint (income) tax return under this act who is 65 years of age or older at the close of the tax year.' The term also includes the unremarried surviving spouse of a person who was 65 years of age or older at the time of death.

The amount of property tax credit to be given to such senior citizens for ad valorem property taxes on the homestead is computed in accordance with 1967 PA 281, ch 9, supra, Sec. 522.

Claims for the homestead property tax credits may be made by senior citizens on forms prescribed by the Department of Treasury in accordance with 1967 PA 281, ch 9, supra, Sec. 532.

The legislative intent is manifest that 1893 PA 206, Secs. 44 and 59, supra, and 1967 PA 281, ch 9, Secs. 514, 522 and 532, supra, be read together as part of one system affording eligible senior citizens relief from certain or all collection fees and interest when authorized by the governing body of a township or city or the county board of commissioners. Dearborn Township Clerk v Jones, 335 Mich 658; 57 NW2d 40 (1953).

A senior citizen seeking relief from payment of certain collection fees and interest on ad valorem property taxes due on the homestead should observe the following requirements:

1. Early in the calendar year, and some time prior to February 15, file with the Department of State Treasury on forms provided by the revenue division of the department a claim for the homestead property tax credit.

2. Ascertain from the township clerk or the city clerk whether the township board or the city council or commission has approved the waiver of all or part of the collection fees for senior citizens.

3. If the homestead property tax credit is not timely received, the senior citizen, before February 15, should deliver a copy of the claim form to the township treasurer, or where applicable, the city treasurer, and advise the appropriate treasurer that the state homestead property tax credit has not been received.

4. In the event that the homestead property tax credit be received by the last day of February, the senior citizen should pay the ad valorem property taxes which are due to the respective township or city treasurer without payment of the additional 3 percent collection fee, provided that the township board or the city council or commission has voted to provide such a waiver for senior citizens pending receipt of the state property tax credit. If the township treasurer or the city treasurer or fiscal officer attempts to collect the one percent collection fee, the senior citizen should inquire if the treasurer receives a salary and whether the local governing body has waived all or only part of the collection fee. If all of the collection fee is waived, the senior citizen is entitled to the full benefit of the waivers.

5. Where the state ad valorem property tax credit is received by the senior citizen after the last day in February, the senior citizen will be required to pay the taxes due to the county treasurer. The senior citizen should take with him or her a copy of the claim form for ad valorem property taxes on the homestead, and upon advising the county treasurer that the credit was needed to pay the taxes, the county treasurer will not impose the 3 percent additional collection fee or interest if the board of county commissioners has approved the waiver of the additional collection fee and interest for senior citizens. The board of county commissioners is not authorized under 1893 PA 206, Sec. 59, supra, to waive the one percent collection fee, so the senior citizen should file the claim for the state property tax credit as early in the calendar year as possible to receive the full benefits of 1893 PA 206, Sec. 44, supra, where the township board or city council or commission has voted to waive all collection fees.

It must be stressed that the waiver of part or all of the collection fees and interest, where applicable, rests in the sound discretion of the township board or city council or commission or the board of county commissioners. Unless appropriate action has been taken by the controlling governing body, the waiver of collection fees and interest is not available to senior citizens.

It is, therefore, my opinion that in townships, cities and counties where the governing body has voted to waive collection fees and interest for senior citizens who have timely filed their claims for the state property tax credit on the homestead and are unable to make timely payment of the ad valorem property taxes upon the homestead until the credit is received from the state, the senior citizen shall receive a waiver of all or part of the collections fees and interest, as may be applicable.

Frank J. Kelley