Opinion No.

Check Treatment

The Honorable Larry Goodwin State Representative P.O. Box 129 Cave City, AR 72521-0129

Dear Representative Goodwin:

This is in response to your request for an opinion on the following questions concerning the levy of suburban improvement district taxes under A.C.A. § 14-92-201 to -239 (1987 and Cum. Supp. 1991):

1. May the Board of Commissioners of a suburban improvement district enter its order levying the improvement district tax, as provided for in A.C.A. §§ 14-92-228, -231 and -239 in Year One, e.g., 1991, for collection in Year Two, e.g., 1992, if the order provides that the levy is not effective until January 1 of Year Two?

2. If the answer to question one is "yes," may the notice of levy be published as required by A.C.A. § 14-92-228 in Year One and the thirty day contest period commenced in Year One?

3. If the answer to question two is "yes," may the publication be timed so that the thirty day contest period expires in Year One?

I cannot state, in response to your first question, that the board clearly has this authority. The current provisions appear to contemplate the assessment, levy and collection of the tax in the same year. See Op. Att'y Gen. 90-242. The board is, however, granted broad authority under § 14-92-210 (1987) to "[p]erform all actions useful to carry out the purposes of this subchapter, unlimited by any express provision of it." This provision may offer general authority for the proposed action. I cannot, however, offer a conclusive response under the current legislative scheme.

It is my opinion that the answer to your second question is "no." Even assuming that the board could proceed with the mechanics of the levy in Year One, notice may not, in my opinion, be published until the levy is effective. See A.C.A. § 14-92-228 (Cum. Supp. 1991). Although your first question is premised upon the assumption that the order will not be effective until Year Two, the levy would, under your second question, have to be effective in Year One in order for the contest period to commence. In my opinion, the board does not have the authority to make the levy effective in any year other than the year in which it is to be collected.

Because the answer to your second question was "no," a response to your third question is unnecessary.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh