ASSESSING AND ENF ASSESSING AND ENFOR ORCING CING REAL PR REAL PROPERT OPERTY T TAXES AXES OCTOBER 23, 2014 PRESENTED BY: ANNE M. TORREGROSSA, ESQ.
THE RULES Statutes Cases Due Process
THE ASSESSMENT – WHO Joint tenants Parties-in-possession Deceased parties Foreclosures Tax acquired property Improper transfers
THE ASSESSMENT - WHAT Book and page Map and lot + identify map Building description Interest description
THE ASSESSMENT – REALITY CHECK
THE ASSESSMENT – HOW DO YOU FIX IT? Abat Abate and reassess e and reassess
THE 30-DAY NOTICE - FORM Read the statute Tax collector’s signature Amount of tax Property description Alleges that a lien is claimed to secure payment Demands payment within 30 days of service or mailing (+ fees)
30-DAY NOTICE - SUBSTANCE Is the correct party named? Deceased owners Is it dated?
3—DAY NOTICE - DELIVERY Sent certified mail, return receipt requested (not registered mail) To last known address Copy to new owner Make sure it’s received
CONSTITUTIONAL DETOUR Due process clause Jones v. Flowers
30-DAY NOTICE – HOW DO YOU FIX IT? Within 1 year of commitment Send a new notice After 1 year from commitment Abate and reassess
THE TAX LIEN CERTIFICA THE T X LIEN CERTIFICATE – E – FORM ORM Read the statute, read the statute, read the statute Tax collector’s signature Amount of tax Property description Alleges that a lien is claimed to secure payment Payment has been demanded in accordance with 36 M.R.S. § 942 Tax remains unpaid
THE T THE TAX LIEN CERTIFICA X LIEN CERTIFICATE – E – SUBST UBSTANCE ANCE Is the correct party named? Assessed party Unassessed owners Deceased owners
THE T THE TAX LIEN CERTIFICA X LIEN CERTIFICATE – E – FILING ILING Timing matt Timing matter ers!! s!!
THE TAX LIEN CERTIFICA THE T X LIEN CERTIFICATE – E – DELIVER DELIVERY Copy sent to each “record holder of a mortgage” Mortgages Execution liens Rights of first refusal Leases Copy to each unassed owner of record Heirs/ Devisees
THE TAX LIEN CERTIFICA THE T X LIEN CERTIFICATE – E – DELIVER DELIVERY Send certified mail, return receipt requested (not registered mail) Send to last known address “A true copy” Make sure it’s received
CONSTITUTIONAL DETOUR Due process clause Jones v. Flowers
THE T THE TAX X LIEN CERTIFICA LIEN CERTIFICATE – E – HOW DO DO YOU FIX IT? OU FIX IT? Errors in the certificate Corrective affidavit Discharge, re-notice and file Abate and reassess Untimely filing Discharge, re-notice and file Abate and reassess Not sent to/received by all interested parties Send copy with 3 months to redeem Send notice of impending foreclosure with new foreclosure date
THE NOTICE OF IMPENDING THE NO TICE OF IMPENDING FORECL RECLOSURE – OSURE – FORM ORM Read the statute, read the statute, read the statute Signed by the treasurer In substantially the same form as provided in statute
THE NO THE NOTICE OF IMPENDING TICE OF IMPENDING FORECL RECLOSURE – OSURE – SUBST UBSTANCE ANCE Is the correct party named? Is it dated?
THE NO THE NOTICE OF IMPENDING TICE OF IMPENDING FORECL RECLOSURE – OSURE – DELIVER DELIVERY Owner(s) Each “record holder of a mortgage” Send certified mail, return receipt requested (not registered mail) Send to last known address Make sure it’s received
CONSTITUTIONAL DETOUR Due process clause Jones v. Flowers
THE NO THE NOTICE OF IMPENDING TICE OF IMPENDING FORECL RECLOSURE – OSURE – HOW DO Y DO YOU FIX OU FIX IT? IT? Redo and resend do and resend
WAIVING F IVING FORECL RECLOSURE OSURE Who? What? When? Where? Why? How?
REDEMPTION REDEMPTION Before foreclosure After foreclosure By party-in-interest
AFTER THE AFTER THE FORECL RECLOSURE OSURE Taking possession Disposing of the property Confirming title
LET’S T LET’S TALK TITLE LK TITLE When do you check? Why do you check? How do you check?
ENF ENFOR ORCING PERSONAL CING PERSONAL PR PROPERT OPERTY T TAX OBLIGA X OBLIGATIONS TIONS OCTOBER 23, 2014 PRESENTED BY: MICHAEL S. MALLOY, ESQ.
OVERVIEW What personal property is subject to tax Who is responsible How to identify the property Securing the municipality’s interest as against other creditors Enforcement of the personal property tax obligation
AREAS OF LAW Title 36 Title 11, Article 9-A Bankruptcy and IR Codes & CFR
WHO’S RESPONSIBLE FOR ENFORCING THE PERSONAL PROPERTY TAX Role of the Tax Collector vs. Municipal Officers Statutory Authority Capitol Bank & Trust Co. v. City of Waterville , 343 A.2d 213 (Me. 1975)
IDENTIFYING THE TAXPAYER AND PERSONAL PROPERTY SUBJECT TO TAX § 602 - all non-exempt personal property taxed to the Owner § 604 – mortgaged personal property taxed against possessor § 605 – personal property of deceased person against PR until distribution
IDENTIFYING THE TAXPAYER AND PERSONAL PROPERTY SUBJECT TO TAX § 601 – definition of personal property § 603 – exemptions
DISCOVERING AND DESCRIBING THE PROPERTY §706 true and perfect list Inventory 11 MRS §§ 9-1504, 9-1108
SECTION 612: ATTACHMENT How? When Against whom? - Difference between attachment and perfection
OVERVIEW OF PERFECTION Why it’s important What to file When to file Where to file Duration of the filing
THE UCC-1 Sample Form
COMPLETING THE UCC-1 Tax Collector is the filer Getting the correct name of the taxpayer – confirming with the SOS Municipality as the Secured Party
COMPLETING THE UCC-1 – UNIQUE TO TAX FILINGS Notice of Personal Property Tax lien Non-UCC filing indication Taxpayer has no organizational number for this purpose
COMPLETING THE UCC-1 – DESCRIBING THE PROPERTY Exhibits True and Perfect List “and all other personal property used in the business”
COMPLETING THE UCC-1 – AMOUNT SECURED Each tax year is separate Exhibits to itemize Include costs
FILING Secretary of State Search for other creditors Registry of deeds for fixtures 2 year deadline § 612(3)
NOTICES To taxpayer To other secured party
CONTINUATION STATEMENTS AND DISCHARGES UCC-3 sample Continuation statement Discharge and penalties for failure to discharge
ENFORCING THE TAX – YOU MUST TAKE ACTION Don’t sit on your rights as a secured party Civil action and small claims court UCC liens vs. judgment liens Destraint § 991, seize and sell – what it looks like Limitations on use of proceeds Recovery of sale, filing costs, out of sale proceeds Municipal policies Application to oldest tax due When to discharge
BANKRUPTCY AND THE IRS Proof of claim and the automatic stay Involve counsel Priority vis a vis preexisting IRS liens
QUESTIONS?
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