Introduced Version
House Bill 2915 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2915
(By Delegates White and Marcum)
(By Request of the Department of Revenue)
[Introduced
March 12, 2013
; referred to the
Committee on the Judiciary then Finance.]
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