Committee Substitute
House Bill 2088 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 2088
(By Delegate Burk)
(Originating in the House Committee on Finance)
[March 22, 1993]
A BILL to amend and reenact section twelve, article ten, chapter
eleven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section sixteen of said article, all relating to tax liens;
providing for a ten year limitation on enforcement;
requiring the notice of lien to include the date the tax,
addition to tax, penalties and interest are due and payable
or the date the tax return is filed; eliminating the
exception to the statute of limitations on collections where
there has been a false or fraudulent return filed or no
return filed; and requiring the tax commissioner to record
extensions by agreement.
Be it enacted by the Legislature of West Virginia:
That section twelve, article ten, chapter eleven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section sixteen of
said article be amended and reenacted, all to read as follows:
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-12. Liens, release; subordination; foreclosure.
(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 the this article is applicable
shall be a debt due this state. It shall be a personal
obligation of the taxpayer and shall be a lien upon the real and
personal property of the taxpayer.
(b)
Duration of lien.
-- The lien created by this section
shall continue until the liability for the tax, additions to tax,
penalties and interest is satisfied or becomes unenforceable by
reason of lapse of time 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 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 and or regulations prescribed by him, may issue
his certificate of release of any lien created pursuant to this
section when the debt is adequately secured by bond or other
security. He shall issue his 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 thetaxpayer, 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 recordation shall constitute
a release and full discharge of the lien. The tax commissioner
may issue his certificate of release of any such lien as to all
or any part of the property subject to the lien, or may
subordinate such 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 property, or if the interest of
the state in such 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 lien by civil action in the circuit
court of the county wherein such property is located, in order to
subject such property to the payment of the tax secured by such
lien. All persons having liens upon or having any interest in
the property shall be made parties to such 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 property by the sheriff or any
commissioner to whom the action is referred, and shall decree
distribution of the proceeds of such 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 property, or made pursuant to
a statutory lien on such 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 sale,
unless:
(1) The tax commissioner is made a party to such civil
action, or
(2) The tax commissioner is given notice of such sale in
writing not less than fifteen days prior to sale, or
(3) The tax commissioner consents to such sale. Such notice
shall contain the name of the owner of the property and the
social security number or federal employer identification number
of the owner.
§11-10-16. Limitations on collection.
(a)
Where assessment is issued.
-- Every proceeding
instituted by the tax commissioner for the collection of the
amount found to be due under an assessment which has become final
of any tax, additions to tax, penalties or interest imposed by
this article or any of the other articles of this chapter to
which this article is applicable, irrespective of whether such
proceeding shall be instituted in a court or by utilization of
other methods provided by law for the collection of such tax,
additions to tax, penalty or interest, shall be brought or
commenced within five ten years after the date on which such
assessment has become final.
(b)
Where assessment is not issued.
-- Every proceeding
instituted by the tax commissioner for the collection of the
amount determined to be due by methods provided by law other than
the issuance of an assessment, of any tax, additions to tax,
penalties or interest imposed by this article or any of the other
articles of this chapter to which this article is applicable,
irrespective of whether such proceeding shall be instituted in a
court or by utilization of other methods provided by law for the
collection of such tax, additions to tax, penalties or interest,
shall be brought or commenced within five ten years after the
date on which the taxpayer filed the annual return required to be
filed by any of the articles of this chapter and, if no annual
return is required, such five-year ten-year period shall begin on
the day after the latest periodical return required to be filed
in any year is filed.
(c) Exception as to false or fraudulent return or no return.
-- In the case of the filing of a false or fraudulent return, or
in case no return is filed, the limitations specified in this
section shall not apply:
(d) (c)
Exception as to inheritance tax liens.
-- This
section shall not apply to, or in any manner affect, the
inheritance tax liens created by sections nine and eighteen,
article eleven of this chapter.
(e) (d)
Extension of time for institutions of collection
proceedings by agreement.
-- The tax commissioner and the
taxpayer may enter into written agreement to extend the period
within which the tax commissioner may institute proceedings for
the collection of the amount found to be due under an assessmentwhich has become final, or the amount determined to be due by
methods provided by law other than the issuance of the
assessment, of any tax, additions to tax, penalties or interest
imposed by this article or any of the other articles of this
chapter to which this article is applicable. Such period shall
not exceed two years. The period so agreed upon may be extended
for additional periods not in excess of two years each by
subsequent agreements in writing made before the expiration of
the period previously agreed upon.
An extension of a tax lien, including an extension agreed to
in writing by the taxpayer and the tax commissioner, beyond ten
years is not effective under the provisions of this section
unless the extension is docketed by the tax commissioner in the
office of the county commission as is required under the
provisions of article ten-c, chapter thirty-eight of this code
for docketing tax liens.
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