Is the 10% Tennessee county clerk fee on late motor vehicle registration renewals mandatory?

Subject

Opinion No. 13-94, Clerk's Fee Under Tenn. Code Ann. § 55-4-105(g) Related to Motor Vehicles, November 27, 2013

Plain-English summary

Rep. Mike Carter asked the AG about a brand-new statute, Tenn. Code Ann. § 55-4-105(g), enacted in 2013. It let a county clerk hold up a person's motor vehicle registration renewal until that person paid any outstanding motor vehicle registration fee, and let the clerk tack on a 10% "clerk's fee" on top of the unpaid amount (county keeps 80%, state gets 20%). The AG answered three questions about how this fee worked.

Was the fee mandatory? No. The statute used "may," which under Tennessee law is permissive and confers discretion. Sneyd v. Washington County, 387 S.W.3d 1, 7 (Tenn. Ct. App. 2012). Each county clerk could choose whether to impose it.

When did the fee apply? Only at the time of a renewal certificate or renewal plate application, and only against an unpaid "motor vehicle registration fee." That meant:
- It did NOT apply to a late initial registration (only renewals).
- It DID apply when the owner owed a registration fee on the vehicle being renewed OR on any other vehicle.
- It did NOT apply to a wheel tax or any other liability beyond a motor vehicle registration fee.

Did the fee apply to wheel tax? No. Other parts of § 55-4-105 specifically mention "wheel or road taxes," but subsection (g) does not. Under State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997), when the legislature includes a term in one place but omits it from a similar provision, that omission is significant.

Currency note

This opinion was issued in 2013. 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.

The 10% fee in Tenn. Code Ann. § 55-4-105(g) may have been amended or replaced since 2013. Confirm the current text of § 55-4-105 with the Tennessee Code before assuming this fee structure still applies.

Background and statutory framework

The 2013 statute. 2013 Tenn. Pub. Acts ch. 376 added subsection (g) to Tenn. Code Ann. § 55-4-105:

(1) If a person makes an application for a renewal certificate of registration or registration plate pursuant to this section and at the time of application owes any motor vehicle registration fee to the office of the county clerk, then the clerk may deny the application until the person makes full payment on such fee amount.

(2) In addition to the fee amount described in subdivision (g)(1), the clerk may charge the person a clerk's fee, which shall be equal to ten percent (10%) of the fee amount described in subdivision (g)(1); provided, that eighty percent (80%) of such clerk's fee may be retained by the county and the remaining twenty percent (20%) of such clerk's fee shall be forwarded by the clerk to the department.

"May" = discretionary. Both subdivisions use the word "may." Tennessee follows the long-standing rule that "may" in a statute "is permissive and operates to confer a discretion." Sneyd, 387 S.W.3d at 7 (quoting Huey v. King).

Renewal vs. initial registration. Subsection (g) is triggered only by an application for "a renewal certificate of registration or registration plate." It said nothing about a first-time registration. A clerk could not use § 55-4-105(g) to deny or surcharge a first-time vehicle registration.

"Any" registration fee. When the owner applied to renew Vehicle A but owed a registration fee on Vehicle B, the clerk could still apply (g) because the statute reaches "any motor vehicle registration fee" the person owes, not just the fee on the vehicle being renewed.

Wheel tax was not covered. The AG noted that § 55-4-105 mentions "wheel or road taxes," "wheel taxes," and "county wheel tax or like local fee" in subsections (a)(2), (a)(3)(A), (f), and (e)(3)(B). Subsection (g) does not. Under the canon that legislative inclusion in one place plus omission in another shows intent, the AG concluded subsection (g) reached only motor vehicle registration fees.

Common questions

What is a "motor vehicle registration fee" as opposed to a "wheel tax"?

The motor vehicle registration fee is the annual state fee for the registration certificate and license plate. The wheel tax is a separate, optional local tax that counties may levy on vehicles registered there. They show up on the same renewal notice, but they are legally distinct, which is why the AG read § 55-4-105(g) to reach only the former.

Could a clerk waive the 10% fee to be fair?

Yes. Because the statute used "may," each clerk could decide whether to impose the fee at all, presumably guided by uniform office policy rather than case-by-case discretion (to avoid equal-protection or favoritism concerns).

What about a person renewing one vehicle while owing on another?

The AG read the statute literally: if the applicant owed "any" motor vehicle registration fee, the clerk could deny the renewal until paid and could add the 10% fee. The unpaid fee did not have to be on the same vehicle.

Could a clerk add the 10% fee on a brand-new registration?

No. The trigger was an application for "renewal." A late initial registration was outside § 55-4-105(g)'s scope. (Other provisions of Title 55 separately addressed initial registration timing and penalties.)

Citations

Tenn. Code Ann. § 55-4-105 (subsections (a)(2), (a)(3)(A), (e)(3)(B) & (C), (f), and (g)). 2013 Tenn. Pub. Acts ch. 376. Cases: Sneyd v. Washington County, 387 S.W.3d 1 (Tenn. Ct. App. 2012); Huey v. King, 220 Tenn. 189, 415 S.W.2d 136 (1967); State v. Lewis, 958 S.W.2d 736 (Tenn. 1997).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-094.pdf

Original opinion text

November 27, 2013

Opinion No. 13-94

Clerk's Fee Under Tenn. Code Ann. § 55-4-105(g) Related to Motor Vehicles

QUESTIONS

1. Is the clerk's fee authorized by Tenn. Code Ann. § 55-4-105(g)(2) mandatory or permissive?

2. Does the clerk's fee apply when the owner of a vehicle is late in registering a vehicle, when the owner makes an application for a renewal certificate of registration or registration plate for a vehicle and owes a motor vehicle registration fee on another vehicle, or to any liability other than a motor vehicle registration fee?

3. a. If the owner making an application for a renewal certificate of registration or registration plate owes a motor vehicle registration fee and a local wheel tax on the vehicle, is the clerk's fee calculated on both?

b. If yes, is the state's portion of the clerk's fee based on both or only the motor vehicle registration fee?

OPINIONS

1. The imposition of the clerk's fee is not mandatory but is within the county clerk's discretion.

2. The clerk's fee applies when the owner makes an application for a renewal certificate of registration or registration plate for a vehicle and owes a motor vehicle registration fee on that vehicle or any other vehicle. Because the fee only applies when the certificate or registration or plate is being renewed, it does not apply to a late initial registration of the vehicle. The fee does not apply to any liability for a tax or fee other than a motor vehicle registration fee.

3. a. No.

b. In view of the answer to Question 3a, Question 3b is moot.

ANALYSIS

1. Tennessee Code Ann. § 55-4-105 governs applications for motor vehicle renewal certificates of registration and registration plates. Subsection (g), added by 2013 Tenn. Pub. Acts, ch. 376, provides:

(1) If a person makes an application for a renewal certificate of registration or registration plate pursuant to this section and at the time of application owes any motor vehicle registration fee to the office of the county clerk, then the clerk may deny the application until the person makes full payment on such fee amount.

(2) In addition to the fee amount described in subdivision (g)(1), the clerk may charge the person a clerk's fee, which shall be equal to ten percent (10%) of the fee amount described in subdivision (g)(1); provided, that eighty percent (80%) of such clerk's fee may be retained by the county and the remaining twenty percent (20%) of such clerk's fee shall be forwarded by the clerk to the department.

Subsection (g)(1) provides that the county clerk "may" charge the clerk's fee. The term "may" is "permissive and operates to confer a discretion." Sneyd v. Washington County, 387 S.W.3d 1, 7 (Tenn. Ct. App. 2012) (quoting Huey v. King, 220 Tenn. 189, 415 S.W.2d 136, 139 (1967)). Therefore, the imposition of the clerk's fee is not mandatory but is within the county clerk's discretion.

2. Under § 55-4-105(g)(1), the county clerk's denial of the application and imposition of the clerk's fee is conditioned upon the person making an application for "a renewal certificate of registration or registration plate." Therefore, the clerk's fee does not apply to a late initial registration of the vehicle.

The clerk's fee applies when, at the time of the application for renewal, the person owes "any motor vehicle registration fee to the office of the county clerk." Tenn. Code Ann. § 55-4-105(g)(1) (emphasis added). Therefore, the clerk's fee applies when the owner owes a motor vehicle registration fee on any vehicle, including such a fee owed on another vehicle that is not the one to which the particular application pertains. The statute plainly does not impose the clerk's fee on any liability for a tax or fee other than a motor vehicle registration fee.

3. Subsection (g) specifically applies only when the person owes a "motor vehicle registration fee." Tenn. Code Ann. § 55-4-105(g)(1). Thus, by its plain terms, the statute does not include wheel tax liability. Furthermore, in separate portions of § 55-4-105, the statute refers to "wheel or road taxes," Tenn. Code Ann. §§ 55-4-105(a)(2), 55-4-105(f); "wheel taxes," Tenn. Code Ann. § 55-4-105(a)(3)(A); and "county wheel tax or like local fee," Tenn. Code Ann. § 55-4-105(e)(3)(B) & (C). There is no mention of these taxes or fees in § 55-4-105(g). When a statute contains a given provision, the omission of such a provision from a similar statute is significant to show that a different intention of the Legislature existed. State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997). Therefore, the absence of any reference to a wheel tax in subsection (g) suggests that the Legislature did not intend to include a wheel tax within the scope of § 55-4-105(g), but only a motor vehicle registration fee. In view of this answer, the question whether under § 55-4-105(g)(2) the state's portion of the clerk's fee is based on both the delinquent motor vehicle registration fee and any delinquent wheel tax, or just the delinquent motor vehicle registration fee, is moot.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

GORDON W. SMITH
Associate Solicitor General

Requested by:

The Honorable Mike Carter
State Representative
Suite G-3, War Memorial Building
Nashville, Tennessee 37243