Opinion No. ( 1996 )

The Honorable George Hopkins State Senator P.O. Box 913 804 East Page Avenue Malvern, AR 72104

Dear Senator Hopkins:

This is in response to your request for an opinion regarding a countywide sales and use tax in Hot Spring County, Arkansas. You state that "[i]t appears that a new election may be held which would modify the provision relating to how the collected tax may be spent." You have asked the following question regarding such an election:

Are all county voters, including voters in municipalities, allowed to vote in a county election to determine how the county's share of tax proceeds are distributed from a one-cent (1¢) local sales and use tax?

Assuming that such an election is properly held,¹ it is my opinion that the answer to this question is "yes."

It is clear from a review of the Code sections pertaining to sales and use taxes that the counties' authority to levy such taxes is exercised by referendum. See A.C.A. §§ 26-74-207 (Supp. 1995) and 26-74-307 (Supp. 1995). See also City of Little Rock v. Waters, 303 Ark. 363,797 S.W.2d 426 (1990). An election is thus required whereby the citizens are given the opportunity to accept or reject such a tax. Waters,303 Ark. at 368. The question is presented to the qualified electors in the county. Id. at 365 (regarding A.C.A. § 26-74-301 et seq.) and 369 (regarding A.C.A. §26-74-201 et seq.).

It may reasonably be concluded, therefore, with regard to any relevy of such tax, that all of the voters in the county, including those residing in municipalities, must be given the opportunity to vote.

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

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh

¹ You have not inquired as to the authority in the first instance for holding such an election, nor have you presented any particular facts in this regard. This office has previously opined, with regard to surplus sales tax revenues, that a relevy of the tax, in another election, may be an appropriate method of determining the purposes to which such revenues may be applied. See Op. Att'y Gen. 92-355, citing Op. Att'y Gen. 89-117.See also Op. Att'y Gen. 90-313.