ROBERT T. STEPHAN ATTORNEY GENERAL. January 24, 1991



Similar documents
JURISDICTION: OKLAHOMA TAX COMMISSION DECISION / NON-PRECEDENTIAL P H DATE: MARCH 24, 2009

ATTORNEY GENERAL OPINION NO Timothy J. Chambers Reno County Attorney Law Enforcement Center 210 West First Street Hutchinson, Kansas 67501

February 20, You inquire concerning section 4 of 1977 House Bill 2490, an amendment. Dear Commissioner Bell:

December 13, Taxation Collection and Cancellation of Taxes Protesting Payment of Taxes

January 2, Counties and County Officers County Treasurer County Treasurer; Deputy Treasurers; Budget; Limitation of Personnel Action

SURVEY OF SELECTED BANKRUPTCY ISSUES APPLICABLE TO HOMEOWNERS ASSOCIATIONS

January 21, Counties and County Officers County Treasurer Deputy Treasurers, Duties; Compensation for State and County Duties

City Attorney City of Longwood 2705 West Fairbanks Avenue Winter Park, Florida 32789

SB 588. Employment: nonpayment of wages: Labor Commissioner: judgment enforcement.

CHAPTER COLLECTION OF DELINQUENT PERSONAL PROPERTY TAXES

10 LC A BILL TO BE ENTITLED AN ACT BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SAN FRANCISCO AMENDS BUSINESS TAX ORDINANCE BOARD OF REVIEW ELIMINATED, STATUTE OF LIMITATIONS FOR REFUNDS INCREASED AND MUCH MORE. Tax March 26, 2004

Chapter 30 Home Equity Conversion Mortgages Authorized lenders Designation Application.

1.00 PURPOSE, STATUTORY AUTHORITY, RESPONSIBILITY, APPLICABILITY, DEFINITIONS, AND RULE

This chapter shall be known and may be cited as the "Home Equity Conversion Mortgage Act."

CODING: Words stricken are deletions; words underlined are additions. hb

NC General Statutes - Chapter 53 Article 21 1

PUBLIC CHAPTER NO. 353

Home Rule Handbook. For County Government Supplement File With the 2013 Home Rule Handbook. Published by South Carolina Association of Counties

UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF MICHIGAN ORIGINAL CHAPTER 13 PLAN

How To Pay Property Tax In Kentucky

Home Equity Conversion Mortgage (Reverse Mortgage) This Mortgage ("Security Instrument") is given on (date). The Mortgagor is (Name), of

BANKRUPTCY BASICS AND TIPS FOR COLLECTION OF PROPERTY TAXES FROM TAXPAYERS IN BANKRUPTCY

Apple Federal Credit Union. Reporting Delinquent Matters and 1099-A and 1099-C Presentation 2014

CHAPTER Committee Substitute for Committee Substitute for House Bill No. 87

CHICAGO TITLE INSURANCE COMPANY

Chapter 32 Utah Interlocal Financing Authority Act

REAL PROPERTY TAX DUTIES OF THE COUNTY ATTORNEY S OFFICE

Revised Tax Lien Procedures and Fees (changes in bold effective 7/12/2012) When are taxes normally do, and what happens if you pay your taxes late?

Special Report: IRS Tax Lien

Public Health--Examination, Licensure and Regulation of Nursing--Acts Which are Not Prohibited

To all Interval Owners:

SENATE, No STATE OF NEW JERSEY. 216th LEGISLATURE INTRODUCED MARCH 12, 2015

CHAPTER 51. ALTERNATE PROCEDURE FOR COLLECTION OF PROPERTY TAXES

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 1991 H 1 HOUSE BILL 22

GENERAL ASSEMBLY OF NORTH CAROLINA 1991 SESSION CHAPTER 546 HOUSE BILL 22

AN ACT RELATING TO LABOR AND EMPLOYMENT; AMENDING THE MINIMUM WAGE ACT TO CREATE A PREFERENCE FOR CIVIL ACTIONS AND APPEALS

October 15, 1985 ATTORNEY GENERAL OPINION NO W. R. Brenner, M.D. Mayor, City of Larned P.O. Box 70, 417 Broadway Larned, Kansas

STATE OF OKLAHOMA. 2nd Session of the 43rd Legislature (1992) AS INTRODUCED AN ACT RELATING TO BANKING; PROVIDING SHORT TITLE;

MANUAL ON THE IMPLEMENTATION OF ASSISTANCE IN TAX COLLECTION

LOAN AGREEMENT. (The City of Elk Grove Small Business Loan Program)

TITLE 316 NEBRASKA ADMINISTRATIVE CODE, CHAPTER 36 NEBRASKA DEPARTMENT OF REVENUE RULES FOR THE COLLECTION OF DELINQUENT TAXES

The Georgia Property Owners Association Act This article shall be known and may be cited as the 'Georgia Property Owners Association Act.

May 18, Public Health--Examination and Registration of Cosmetologists and Beauty Shops--Cosmetology and Onychology Schools

CHAPTER 332B DEBT SETTLEMENT SERVICES

December 12, 2011 * * *

AIA Document A310 TM 2010

51ST LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 2013

VOLUME NO. 51 OPINION NO. 11

Nebraska Loan Broker Act Chapter 45, Article 1, Section f to

Chapter 3.26 CAR RENTAL OCCUPATION TAX

ORDINANCE NO

CONSUMER LOAN BROKER ACT Investigation of applicant; issuance or denial of license; time limit for acting on applications.

UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION

Sec. 17. EFFECTIVE UPON ENACTMENT. This Act, being deemed of immediate importance, takes effect upon enactment. CHAPTER 1146

STATE OF OREGON DEPARTMENT OF CONSUMER AND BUSINESS SERVICES DIVISION OF FINANCE AND CORPORATE SECURITIES. Respondent.

CHAPTER 105A. Setoff Debt Collection Act. 105A-1. Purposes. 105A-2. Definitions.

CHAPTER 179. BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: 1. R.S.34: is amended to read as follows:

STATE OF TENNESSEE OFFICE OF THE ATTORNEY GENERAL. February 26, Opinion No

INERNATIONAL INSOLVENCY INSTITUTE COMMITTEE ON PRIORITY OF TAX CLAIMS IN INSOLVENCY PROCEEDINGS 1 NATIONAL LAW QUESTIONNAIRE

SURCHARGES. DMV Surcharges

Appendix to CGI s A proven path to improving government debt collection issue paper

September 22, Taxation--Kansas Retailers' Sales Tax--Exempt Sales. Taxation--Income Tax--Taxable Income

Chapter CONTRACTS AND PROMISES. Article 1.---General Provisions

FAMILY LAW NEWS & REVIEW

Title 33: PROPERTY. Chapter 9: MORTGAGES OF REAL PROPERTY. Table of Contents

Michigan Association of County Treasurers 2013 Summer Conference Crystal Mountain August 11-14, 2013 BANKRUPTCY

Title 36: TAXATION. Chapter 112: WATERCRAFT EXCISE TAX. Table of Contents Part 2. PROPERTY TAXES...

Chapter WAC ADMINISTRATION OF TRUST COMPANIES INVESTMENTS, ETC.

TARBOX LAW, P.C Broadway Lubbock, Texas Phone - (806) Fax - (806)

Case 1:13-cv RMC Document 12-6 Filed 02/26/14 Page 1 of 11 EXHIBIT F

IC Chapter 29. Debt Management Companies

Title XLV TORTS. Chapter 768 NEGLIGENCE. View Entire Chapter

Internal Revenue Service

DEERFIELD COMMUNITY CODE: SCHOOL DISTRICT DATE OF ADOPTION:

Kentucky Department of Education Version of Document A

MANUAL OF THE TITLE INSURANCE RATING BUREAU OF PENNSYLVANIA

How a District should respond to Bank and Mechanics Lien Foreclosures and Bankruptcy Filings

R. PORTER FEILD Burch, Porter & Johnson, PLLC 130 North Court Avenue Memphis, Tennessee (901) Unusual Issues in Today s Economy

Small Business Seminar Offer in Compromise. Felicia Branch August 15, 2015

NC General Statutes - Chapter 55 Article 15 1

Virginia Property Owners Association Act

BANKRUPTCY FILING (CHAPTERS 7 AND 13) AND ITS EFFECT UPON THE FORECLOSURE PROCESS

A JOINT RESOLUTION BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS. Section 5, Article VII, Texas Constitution, is amended to read as follows:

HOUSE BILL No By Committee on Insurance AN ACT enacting the Kansas professional employer organization licensing

Instructions for Forms 1099-A and 1099-C

Chapter 12 is a reorganization for family farmers and fishing families, which is similar to Chapter 13.

Cancellation of Debt A Special Focus on Home Foreclosures

Telephone: (815) Facsimile: (815)

Contract for the Sale of Motor Vehicle Owner Financed with Provisions for Note and Security Agreement

Visa Business Card Disclosure Agreement

UNDERSTANDING THE COLLECTION PROCESS FOR COMMUNITY ASSOCIATIONS

BANKRUPTCY ISSUES RELATED TO MORTGAGE FORECLOSURES

Personal Loan Contract

Tariff and billing handbook. 6. Costs and contributions

SURETY. and Title: (Any additional signatures appear on the last page of this Performance Bond.)

Bankruptcy Filing and Federal Employment Taxes. Bad investments, too great an assumption of risk, circumstances beyond their control.

No. 102,751 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, KRISTINA I. BISHOP, Appellant. SYLLABUS BY THE COURT

CHAPTER RETAIL INSTALLMENT SALES ACT

NC General Statutes - Chapter 105A 1

Transcription:

ROBERT T. STEPHAN ATTORNEY GENERAL January 24, 1991 ATTORNEY GENERAL OPINION NO. 91-5 Mr. Henry H. Blase Sedgwick County Counselor County Courthouse Suite 359 Wichita, Kansas 67203-3709 Re: Taxation--Correction of Irregularities--Unlawful Release, Discharge, Remission or Commutation of Taxes; Release or Waiver of Tax Lien Taxation--Collection and Cancellation of Taxes--Collection of Delinquent Taxes in Certain Counties; Tax Lien; Release or Waiver by Sedgwick County Synopsis: Release or waiver of a tax lien arising pursuant to K.S.A. 1990 Supp. 79-2017 does not violate the provisions of K.S.A. 79-1703. However, an unconditional waiver or release is outside the authority granted to Sedgwick county officials. Cited herein: K.S.A. 1989 Supp. 8-173; K.S.A. 1990 Supp. 19-101a; K.S.A. 79-1703; K.S.A. 1990 Supp. 79-2017. Dear Mr. Blase: As county counselor for Sedgwick county you request our opinion on whether K.S.A. 79-1703 prohibits a board of county commissioners, or other county officers, from waiving or releasing a lien on real property which has attached pursuant to K.S.A. 79-2017. You note that, quite often, in the course

of mortgage foreclosure actions or actions to cancel contracts for deed, your county is asked to take such action and that while this waiver does not release or otherwise discharge the underlying tax liability the question remains whether or not the waiver could be considered a violation of K.S.A. 79-1703 in that an apparent ability to collect the tax is being released. K.S.A. 79-1703 states in part: "(a) Except as... otherwise provided by law, no board of county commissioners or any officer of any county shall have power to release, discharge, remit or commute any portion of the taxes assessed or levied against any person or property within their respective jurisdictions for any reason whatever...." A release of taxes assessed or levied would involve "the relinquishment, concession, or giving up of a right, claim, or privilege... [or] abandonment of claim to the party against whom it exists, and is a surrender of a cause of action and may be gratuitous or for consideration.' Black's Law Dictionary 1159 (5th ed. 1979). Discharge means "to release; liberate; annul; unburden; disencumber; dismiss. To extinguish an obligation...." Id. at 416. To remit is "to send or transmit... to send back... to give up; to pardon or forgive; to annul; to relinquish...." Id. at 1163. A commutation of taxes occurs when there is a "payment of a designated lump sum (permanent or annual) for the privilege of exemption from taxes, or the settlement in advance of a specific sum in lieu of an ad valorem tax." Id. at 254. Based upon these definitions, it does not appear that actions to release or waive a valid tax lien result in a release, discharge, remittance or commutation of taxes assessed or levied. The tax continues to be owed after the lien is released. The right or claim to that tax is not released by waiving a tax lien, rather the county gives up the claim to priority status and the benefits of a judgment lien. Thus, actions to release or waive a tax lien do not necessarily result in an action prohibited by K.S.A. 79-1703. However, we must examine whether county officials are otherwise vested with the authority to grant such a release or waiver.

Once property tax owed on property in Sedgwick county goes unpaid, a lien arises pursuant to K.S.A. 1990 Supp. 79-2017. That lien gives the county rights with regard to the property of a tax debtor: "The total amount shall become a lien on real estate from and after the time of the filing thereof... and when the judgment is entered in the manner provided above, the judgment shall become a lien upon real estate located in such county as is provided in the case of other judgments. K.S.A. 1990 Supp. 79-2017 also provides Sedgwick county with authority to allow judgments to become dormant if the judgment remains uncollected after 20 years or if the original amount of the judgment was less than $50.00. These directives do not appear to be discretionary on the part of county officials. Rather, as evidenced by the recent amendment to K.S.A. 79-2017, tax collection mechanisms are statutorily provided and procedures for relief from such tax debts is included in those statutes. Pursuant to K.S.A. 1990 Supp. 79-2017 the legislature has authorized and directed Sedgwick county officials to take certain actions with regard to collection of unpaid taxes and such directives and authority do not appear to include the ability to waive or release a tax lien which has attached pursuant to K.S.A. 1990 Supp. 79-2017. Thus, we must determine if such authority exists outside K.S.A. 1990 Supp. 79-2017. K.S.A. 1990 Supp. 19-101a permits counties to exercise home rule authority in order to "transact all county business and perform all powers of local legislation and administration it deems appropriate." There is some question as to whether taxes required to be collected and lien procedures set forth under K.S.A. 1990 Supp. 79-2017 are subjects of local legislation. Moreover, K.S.A. 1990 Supp. 19-101a(a)(11) prohibits the exercise of county home rule with regard to certain taxation matters. The entire matter of taxation is legislative and does not exist apart from statute, and the legislature is empowered to provide the means and agencies for carrying out its responsibilities in matters of taxation. Joseph v. McNeive, 215 Kan. 270 (1974). Neither the assessing official nor the state board of tax appeals has the discretion to waive or excuse penalties provided by law for failure to comply with tax laws. See Walkemeyer v. Stevens County Oil and Gas Co., 205 Kan. 486 (1970). One

of the penalties for not paying taxes is a tax lien. Such a lien aids in the ultimate collection of a tax debt and was provided by the legislature to insure such collection. Attorney General Opinion No. 85-100 opined that Shawnee county officials possessed the implied power to take reasonable actions as were necessary for the effective exercise of the powers conferred and the duties imposed pursuant to K.S.A. 79-2017. Thus, we concluded that the Shawnee county board of commissioners could defer payment of taxes and accrued interest for a reasonable period of time. In the situation presented to us by Shawnee county officials, the procedures required by the statute were followed, however, because of chapter 11 bankruptcy proceedings, no further action could be taken by the county. The county therefore had to decide how best to collect the taxes; either deferring tax payment until it could be collected or collecting little if any of the tax debt from property involved in the bankruptcy proceedings. Based on the specific facts of that situation, we did not believe that the county acted ultra vires in deferring payment of taxes. However, the situation presented by Sedgwick county does not provide specific facts concerning the degree of compliance with the procedures required by K.S.A. 79-2017 et seq. nor the impact of a release or waiver of a tax lien upon the ultimate recovery of a certain unpaid tax debt. K.S.A. 1990 Supp. 79-2017 specifically discusses dormancy of tax liens. Thus, it appears that the legislature realized that some tax debts may go uncollected or unpaid for great periods of time. However, K.S.A. 1990 Supp. 79-2017 does not appear to contemplate, permit or authorize the discretionary release, commutation or discharge of a valid tax lien. Moreover, we have thus far not located specific statutory authority or case law permitting such a release or waiver by Sedgwick county officials. [Note: K.S.A. 1989 Supp. 8-173(b) states that a county treasurer shall not accept registration of a vehicle "if the records of the county treasurer show that the applicant is delinquent and owes personal property taxes levied against the applicant for any proceeding year."] Once a tax lien is properly obtained by a county subject to K.S.A. 1990 Supp. 79-2017 the statutes provide when that lien may become dormant and, if not revived, it ceases to operate as a lien on the real estate of the delinquent taxpayer. However, until such time as that statutorily provided dormancy occurs, it is our opinion that neither the board of county commissioners nor other county officials have the authority to release or waive a valid tax

lien which as arisen and attached to property pursuant to K.S.A. 1990 Supp. 79-2017. As discussed in Attorney General Opinion No. 85-100, there may be situations wherein county officials conclude that it is in the best interests of the county to defer enforcement of their collection rights. Attorneys involved in mortgage foreclosures or contracts for deeds may attempt to include or provide for some guarantee or transfer of liability with regard to a tax lien. However, authority to defer collection on or enforcement of a tax lien does not, in our opinion, include the authority to abolish or relinquish either the debt itself or the statutory remedy provided to enforce collection of that debt. Very truly yours, ROBERT T. STEPHAN Attorney General of Kansas RTS:JLM:TMN:jm Theresa Marcel Nuckolls Assistant Attorney General