Senate Bill No. 441
(By Senators Prezioso, Facemire, Stollings, Plymale and McCabe)
[Introduced March 5, 2013; referred to the Committee on the Judiciary.]
A BILL to amend and reenact §11-10-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §38-10C-2 of said code, all relating to the withdrawal of state tax liens recorded prematurely, inadvertently or erroneously.
Be it enacted by the Legislature of West Virginia:
That §11-10-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §38-10C-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-12. Liens, release; subordination; foreclosure; withdrawal.
(a) General. – Any tax, additions to tax, penalties or interest due and payable under this article or any of the other articles of this chapter to which this article is applicable shall be is a debt due this state. It shall be is a personal obligation of the taxpayer and shall be is a lien upon the real and personal property of the taxpayer.
(b) Duration of lien. – The lien created by this section shall continue continues until the liability for the tax, additions to tax, penalties and interest is satisfied or upon the expiration of ten years from the date the tax, additions to tax, penalties and interest are due and payable under section eight of this article or the date the tax return is filed, whichever is later.
(c) Recordation. – The lien created by this section shall be is subject to the restrictions and conditions embodied in article ten-c, chapter thirty-eight of this code and any amendment made or which may hereafter be made thereto: Provided, That the notice of lien shall indicate the date the tax, additions to tax, penalties and interest are due and payable under section eight of this article or the date the tax return was filed.
(d) Release or subordination. – The Tax Commissioner, pursuant to rules or regulations prescribed by him or her, may issue his or her certificate of release of any lien created pursuant to this section when the debt is adequately secured by bond or other security. He or she shall issue his or her certificate of release when the debt secured has been satisfied. The certificate of release shall be issued in duplicate. One copy shall be forwarded to the taxpayer, and the other copy shall be forwarded to the clerk of the county commission of the county wherein the lien is recorded. The clerk of the county commission shall record the release without payment of any fee and such the recordation shall constitute is a release and full discharge of the lien. The Tax Commissioner may issue his or her certificate of release of any such the lien as to all or any part of the property subject to the lien, or may subordinate such the lien to any other lien or interest, but only if there is paid to the state an amount not less than the value of the interest of the state in such the property, or if the interest of the state in such the property has no value.
(e) Foreclosure. – The Tax Commissioner may enforce any lien created and recorded under this section, against any property subject to such the lien by civil action in the circuit court of the county wherein such the property is located, in order to subject such the property to the payment of the tax secured by such the lien. All persons having liens upon or having any interest in the property shall be made parties to such the action. The court may appoint a receiver or commissioner who shall ascertain and report all liens, claims and interests in and upon the property, the validity, amount and priority of each. The court shall, after notice to all parties, proceed to adjudicate all matters involved therein, shall determine the validity, amount and priorities of all liens, claims and interests in and upon the property and shall decree a sale of such the property by the sheriff or any commissioner to whom the action is referred, and shall decree distribution of the proceeds of such the sale according to the findings of the court in respect to the interests of the parties.
(f) Discharge of lien. – A sale of property against which the state has a lien under this section, made pursuant to an instrument creating a lien on such the property, or made pursuant to a statutory lien on such the property, or made pursuant to a judicial order to enforce any judgment in any civil action, shall be made subject to and without disturbing the state tax lien if the state tax lien was recorded more than thirty days before such the sale, unless:
(1) The Tax Commissioner is made a party to such the civil action; or
(2) The Tax Commissioner is given notice of such the sale in writing not less than fifteen days prior to sale; or
(3) The Tax Commissioner consents to such the sale. Such The notice shall contain the name of the owner of the property and the social security number or federal employer identification number of the owner.
(g) Withdrawal of lien. – Upon the determination of the Tax Commissioner or the Tax Commissioner's designee that the lien was recorded prematurely, inadvertently or otherwise erroneously, a withdrawal of the lien for recordation shall be signed and delivered to the taxpayer by the proper officer.
CHAPTER 38. LIENS.
ARTICLE 10C. STATE AND LOCAL TAX LIENS.
§38-10C-2. Notices of liens of state, political subdivisions and municipalities to be filed; indexes; withdrawal release.
It is the duty of the Tax Commissioner, or the proper officers of the political subdivisions of the state for its subdivisions and of the proper officers of the municipalities for the municipalities, having liens, to file a notice thereof of the liens in the office of the clerk of the county commission of the county in which the property of the taxpayer against whom the lien is claimed, is situate, stating in the notice what amount of money is owing to the State of West Virginia, the political subdivision thereof or the municipality, therein on account of the lien from the taxpayer owing the same money; and the clerk of the county commission of the county shall, upon the filing of notice, index the same lien in the judgment or tax lien docket in his or her office as a tax lien against the taxpayer in favor of the State of West Virginia, the political subdivision thereof or the municipality. therein Upon the determination of the Tax Commissioner or the Tax Commissioner's designee that the lien was recorded prematurely, inadvertently or otherwise erroneously, a withdrawal of the lien for recordation shall be signed and delivered to the taxpayer by the proper officer. Upon the satisfaction of the lien, a release thereof of the lien for recordation shall be signed and delivered to the taxpayer by the proper officer. The signature of the Tax Commissioner or the Tax Commissioner's designee on the notice and on the release or withdrawal may be either a properly acknowledged manual signature or a facsimile signature authenticated pursuant to the filing of an affidavit and a manual signature with the Secretary of State in the manner specified in section two, article fourteen, chapter six of this code. The facsimile signature shall have has the same legal effect as the manual signature.
All acts or parts of acts inconsistent or in conflict herewith are hereby repealed.
(NOTE: The purpose of this bill is to provide a means for the withdrawal of tax liens that have been filed prematurely, inadvertently or erroneously.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added)