Fees Imposed by the Division of Motor Vehicles for Furnishing Information to Counties

15 August 1995

Mr. John C. Bailey<br> Assistant Director Ad Valorem Tax Division North Carolina Department of Revenue 501 North Wilmington Street Raleigh, North Carolina 27604-8001

Re: Advisory Opinion: Fees Imposed by the Division of Motor Vehicles for Furnishing Information to Counties as Required by N.C.G.S. §20-50.3

You request our opinion regarding the propriety of the fees charged by the Division of Motor Vehicles (DMV) of the Department of Transportation for providing counties with lists of registered vehicles as required by N.C.G.S. § 20-50.3. Specifically, you inquire as to what particular statutory provision authorizes the DMV to impose a fee upon the counties for furnishing this information. You further inquire as to what, if any, statutory provision would release the DMV from the mandate to furnish the information if the counties chose not to pay for the information provided under N.C.G.S. § 20-50.3.

N.C.G.S. § 20-50.3 provides: On the tenth day of each month the Division shall send to each county assessor a list of vehicles registered under the staggered system for which registration was renewed or a new registration was obtained in that county during the second month preceding that date, with the name and address of each vehicle owner. On the tenth day of March the Division shall send to each county assessor a list of the following vehicles registered under the annual system with the name and address of each vehicle owner:

(1)

Vehicles for which registration was renewed in that county during the period beginning the preceding December 1.

(2)

Vehicles for which new registration was obtained in that county during the preceding December. (emphasis added).

Although the statute imposing the duty upon the DMV fails to authorize it to charge a fee for providing this information, the Division has assessed a charge for furnishing this information to the counties. See Exhibit 1, attached hereto. Numerous counties have protested this charge to the Ad Valorem Division of the Revenue Department.

N.C.G.S. §20-50.3 was enacted in 1991 as part of Chapter 624, entitled "An Act to Provide for a More Efficient and Equitable Procedure for Assessing and Collecting Local Ad Valorem Property Taxes on Certain Motor Vehicles." 1991 Sess.Laws, ch. 624. Historically, the taxation of motor vehicles has been subject to great abuse due primarily to the mobile nature of motor vehicles. Numerous legislative and administrative schemes have been put forth in an effort to address the problem. See Exhibit 2, attached hereto. In 1991, the legislature opted to tie the taxation of motor vehicles to the registration thereof, thus ensuring that all vehicles registered in a particular county would also be listed in that county for ad valorem taxation purposes.

Vehicle registration plays an integral role in the new scheme. Under the statutory scheme, ownership, situs and taxability of a motor vehicle are determined annually as of the day a vehicle’s registration is renewed or a new registration is applied for. N.C.G.S. § 105-330.2(a).

The county tax assessor lists, appraises and assesses all taxable classified motor vehicles for county, municipal and special district taxes each year in the name of the record owner as of the day on which a new vehicle registration is applied for. Thus, the date of registration is critical for it determines ownership, situs and valuation of a vehicle for ad valorem tax purposes.

Registration is further tied to the taxation scheme as an enforcement measure and to encourage prompt payment of taxes. N.C.G.S. { 105-330.7 requires the tax collector of each county to mail to the DMV by the tenth day of each month a list containing the name and address of the owner and the vehicle identification number of all motor vehicles listed under N.C.G.S. { 105330.3(a)(1) on which taxes are delinquent. N.C.G.S. { 20-50.4 prohibits the Division from registering any vehicle identified in the list until the owner presents the Division with a paid tax receipt identifying the vehicle for which registration was refused.

The legislature, in an effort to curb the widespread abuse in the taxation of motor vehicles, elected to include the DMV as an integral component in the ad valorem taxation scheme for motor vehicles. The DMV is charged with the responsibility of providing the information necessary for the counties to implement the provisions of Article 22A of Chapter 105. The lists furnished by it are crucial to the proper functioning of the system of taxation envisioned by the General Assembly. The prohibition against registering a non-tax paid vehicle serves as a powerful enforcement mechanism. Thus, through Chapter 624, the legislature elected to place part of the responsibility for administering and enforcing the taxation of motor vehicles on the DMV. There is no indication that the legislature intended for the DMV to impose a fee upon the counties for performing its role in the taxation scheme. The fee is unsupported by statute, as well as the manifest intent of the legislature, which was to provide for a "more efficient and equitable procedure" for taxing motor vehicles.

We understand that the DMV references 19A NCAC 5A.0002 as support for its imposition of fees for furnishing the information to the counties. Rule .0002 provides: The following fee schedule is in effect: (1) full file copy on continuous paper at fifty dollars ($50.00) per one thousand records;

(2)

full file copy on magnetic tape at seven dollars ($7.00) per one thousand records;

(3)

selected listing on continuous paper [items listed in (2) through (6) of Rule .0001 of this Subchapter] at fifty dollars ($50.00) per one thousand records, or a minimum charge of two hundred fifty dollars ($250.00), whichever is greater;

(4)

selected magnetic tape copy [items listed in (2) through (6) of Rule .0001 of this Subchapter] at twenty dollars ($20.00) per one thousand records, or a minimum charge of two hundred fifty dollars ($250.00), whichever is greater.

Rule .0002 was promulgated as a counterpart to Rule .0001, which, in turn, was promulgated to comply with N.C.G.S. { 20-43. N.C.G.S. { 20-43 declares all records of the Division, other than those declared by law to be confidential for the use of the Division, to be public records, open to public inspection during office hours. Rule .0001 provides:

The motor vehicle registration records maintained by the division of motor vehicles are declared by the General Statutes to be public records and available to the public for inspection during normal working hours. These records are contained on computer storage and therefore are not available for individual inspection by the public. Therefore, in order to meet the requirements of public access, the data processing section has prepared an appropriate computer program to select from the data base records on request. The division can prepare listings based on the following criteria: (1) full file copy,

(2)

selection by vehicle make…

(3)

selection by county,

(4)

selection by year model…

(5)

selection by body style…

(6)

any combination of items listed in (2) through (5) of this Rule.

The fee schedule established by Rule .0002 is obviously designed to coordinate with Rule .0001, which is in place to satisfy the requirement that such records be open to public inspection. Justification for charging the counties a fee for providing them with the lists required by

N.C.G.S. { 20-50.3 cannot be found in Rule .0002. Note that the counties are required to provide the DMV with monthly lists of vehicles on which taxes are delinquent. N.C.G.S. { 105-330.7. There is no fee charged by the counties for preparing or mailing these lists.

This is not a public inspection issue for which the rule ostensibly was designed to reimburse the DMV for expenses in accommodating requests of third parties for agency documents. Instead, the legislature has comprehensively reordered the entire statutory scheme for collection of property taxes and directed, as part of its specific statutory responsibilities, that the DMV assume a significant, if not indispensable, role with local taxing districts. We see no authority for the agency to engraft a copying charge for fulfilling its mandated intergovernmental duties in this situation.

When the legislature directs a governmental agency to take a particular action or perform specific services with respect to another governmental agency, but does not specifically authorize the agency performing the services to charge a fee, the agency is obligated to perform the services as a part of its normal duties to the state and is precluded from assessing a fee as a condition of performing the services or act. This is true notwithstanding N.C.G.S. { 12-3-1, which is not a specific grant of authority, but merely a general directive. As such, N.C.G.S. { 12-3-1 cannot support the imposition of fees by the DMV. Since the statute imposing the intergovernmental duties upon the DMV is silent regarding any charges or fees, the Division lacks authority to impose a fee for performing statutorily-mandated services.

MICHAEL F. EASLEY Attorney General

Andrew A. Vanore, Jr.

Chief Deputy Attorney General

Kay Linn Miller Hobart Assistant Attorney General