liens NOT "judicial" but "admistrative"

Now, maybe y'all knew that "tax liens" (should be "liens for taxes") are administrative actions and not judicial, but I did not. So here's the bad news/good news/crazy news, all courtesy of this damned Commonwealth of Virginia.


It'll be only the "nuts and bolts" 'cause y'all are smart folks....
*******************<FONT face=Arial size=2>


Present: All the Justices
FIRST VIRGINIA BANK v. Record No. 950149
OPINION BY JUSTICE BARBARA MILANO KEENAN
March 1, 1996 FRANCIS X. O'LEARY, ETC., ET AL.


FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge


"In contrast, judicial action is not required for the issuance of a "Notice of Tax Lien and Demand for Payment" under Code 58.1-1804 and -3952. <U>These tax liens are administrative process</U> issued by authority of the Tax Commissioner, under Code 58.1-1804, or by the "treasurer or other tax collector of any county, city or town," under Code 58.1-3952.


"In these statutes, <U>the person owing the tax is referred to as the "taxpayer," not the "defendant."</U> Thus, while Code 6.1-125.3(D) requires the petitioning creditor to provide the clerk with a copy of the documents originally served on "the original defendants or judgment defendants," there is no party in Code 58.1-1804 and -3952 who can be identified by these terms.


Randy here: The previous is one thing I learned, i.e., administrative "remedy" on their part. A-holes. Always a back-door for them. That's "bad" news, well sort-of....Anyway, now read the following. From same case:


This section requires a financial institution to "file an answer" on receipt of "an order of garnishment, attachment or other levy." The institution must also mail a copy of its answer to the petitioning creditor or "counsel of record." <U>The Bank's position would require us to find that the term "file" means nothing more than "send."</U> <U>However, throughout the Code and the Rules of Court, the term "file" is used to convey the act of lodging pleadings and notices with the clerk of the court.</U> See, e.g., Code 8.01-73, -229; Rule 1:4.


Me, again: Now, I think I'll confront our Tax Commissioner with this and ask, "Yo, Bubba: How in the hell do I "file" a tax return, since, after all, the ONLY thing YOU ever asked me to do was SEND it to you!" God, I really, really, really loathe these people.


Here's another interesting section this court to which this court made reference:<FONT face=Arial size=2>


§ 58.1-1804. Collection out of estate in hands of or debts due by third party.


The Tax Commissioner may apply in writing to any person indebted to or having in his hands estate of a taxpayer for payment of any taxes assessed under § </FONT><FONT face="Times New Roman" size=2>58.1-313</FONT><FONT face=Arial size=2> or § </FONT><FONT face="Times New Roman" size=2>58.1-631</FONT><FONT face=Arial size=2>, or of any taxes more than thirty days delinquent, <U>out of such debt or estate. </U></FONT>


Me: Well, the Tax Commissioner seems to understand that our "bank accounts" ARE, in truth, "debts." mmmmm<FONT face=Arial size=2></FONT>


Okay, done with that. But wait: It gets BETTER!& The court used, as example of "filing," Code 8.01....(Section 8 is "Civil Remedies" here in VA)<FONT face=Arial size=2>


§ 8.01-73. Guardian ad litem to be appointed.


In every suit brought under this article, <U>a guardian ad litem shall be appointed for any person under a disability not otherwise represented by a guardian or committee, or trustee appointed pursuant to § 37.1-134,</U> and for all persons proceeded against by an order or publication under the designation of "parties unknown" as provided for in § 8.01-316</FONT><FONT face=Arial size=2>. The guardian ad litem shall file an answer as such.</FONT><FONT face=Arial size=2><FONT face=Arial size=2>


Title 37.1 - INSTITUTIONS FOR THE MENTALLY ILL; MENTAL HEALTH GENERALLY....


§ 37.1-134.6. Definitions.


<U>"Respondent" means an allegedly incapacitated person for whom a petition for guardianship or conservatorship has been filed.</U>


Me, again: Am I reading this correctly? IF and WHEN I am ever referred to as a "respondent," that's BB's way of saying I'm too damned "incapacitated" to "represent myself" AND, because of that "allegation," agents somewhere, and unknown to me, have "appointed" a "guardian" to operate on my behalf?&


Hell's bells. So even THEY knew what a "natural person" was before I did. THEY think I'm a damned idiot.....


Oh, I am soooooooooooooo PO'd.


Break time....


edit--forgot this: Here's an email I received today. Self-explanatory, but contradicts stuff I've read elsewhere:



<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>Mr. V..., </SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>& In response to your inquiry, there is no provision that requires a filing of a state tax lien with the Secretary of the Commonwealth.& We suggest you contact the Virginia Department of Taxation regarding this matter and request their assistance regarding your tax lien.& You may also want to check the state's website at www.vipnet.org to search for other state entities which may be able to assist you as well as contact the Office of the Attorney General of Virginia.&</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004></SPAN></FONT>&</DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>Marilyn Mandel&</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>Executive Assistant</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>Secretary of the Commonwealth&</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>830 E. Main Street</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>Richmond, Virginia 23219</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004>Phone:& (804) 786-2441&</SPAN></FONT></DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma size=2><SPAN class=230460215-17032004></SPAN></FONT>&</DIV>
<DIV class=OutlookMessageHeader dir=ltr align=left>Randy</DIV></FONT></FONT></FONT>

Randy,


What is is that you are trying to accomplish with respect to your tax lien(s)?


While I cannot offer any help with getting them released from the tax agency,&have you challenged the Credit Bureaus on this?


I used to live in Alexandria and Arlington, VA 20 years ago. I'm glad I don't live there now.& They seem worse than California.


&

[quote= Godd]


What is is that you are trying to accomplish with respect to your tax lien(s)?


At this point, nothing more than prove to myself that their "notice of lien" aren't "valid," but since they can file a "notice" of lien purely on an adminstrative level, I'm left starting over on how to approach this if/when it happens again.


While I cannot offer any help with getting them released from the tax agency,&have you challenged the Credit Bureaus on this?


Good point. No, I hadn't& even considered the CRAs. I'll get to work on that tomorrow. Thanks. (I'd put this off because, ironically, that previous lien was against an ex-employer....


I used to live in Alexandria and Arlington, VA 20 years ago. I'm glad I don't live there now.& They seem worse than California.


Oh, the gool ol' Commonwealth of Virginia is a state outta control! Tyrants, pure and simple. And, just as an example, here in my little town (Vinton), which is part of the county, we pay all the state taxes (of course), plus country, plus "town." This state is tax-crazy.


There's a proposal, which will probably pass this year, that will allow each separate locality to pass it's own "income tax" over and above, and in addition to, the state income tax. Wow.


Randy

I deleted the letter. I'll post again when the results are in.

<FONT size=3>&</FONT>8O

I knew something about that court ruling was bothering me. (Forgive an ol' man for thinking out-loud.) All codes of VA:


§ 58.1-216. Writs, notices, processes, and orders.
"...But <U>all memoranda of liens for the collection of taxes</U> shall issue under the provisions of § 58.1-1805 or § 58.1-1806...."


§ 58.1-1805. Memorandum of lien for collection of taxes; release of lien.


A. If any <U>taxes</U> or fees, including penalties and interest, <U>assessed by the Department of Taxation</U> in pursuance of law against any person, are not paid within thirty days after the same become due, the Tax Commissioner may <U>file a memorandum of lien in the circuit court clerk's office</U> of the county or city in which the taxpayer's place of business is located, or in which the taxpayer resides


§ 58.1-1806. Additional proceedings for the collection of taxes; jurisdiction and venue.


The payment of any state taxes and the filing of returns may, in addition to the remedies provided in this chapter be enforced by action at law, suit in equity or by attachment in the same manner,...


I'm done.& Thanks.


Randy

United States v. Silkman, 156 F.3d 833 (8th Cir. 1999) (Administrative tax assessment is not conclusive proof of tax deficiency).

Prof. Jim

[rushpat]

Yikes! The CA FTB has gotten out of control on this issue as well. Take a look at this holding, which I found on the lawwork Yahoo Group:

------------------------
"Thus, in operation and effect, the Board's orders to withhold are identical to the judgment of a court. They give rise to a binding legal obligation to pay the assessed amounts; the taxpayer may no more dispute this liability than the liability under any other judgment. Neither the Postal Service nor its employees would obtain any additional protections from a requirement that such orders be issued by a court, since the liability cannot be contested until after the tax has been paid and a refund action brought." FTB v. USPS, 467 U.S. 512, 523.
------------------------

So, that says that the lowliest employee of the FTB can issue an order that has the force and effect of a court order. How tyrannical.

Thanks to Jim for the case above.

The law has long since recognized the right of debtors to bring a declaratory or other equitable action for a judicial determination that would remove any appearances that a lien is valid and/or effectual. Smith v. St. Petersburg Novelty Works, 94 Fla. 540, 113 So. 769, 770 (1927); Clements v. Henderson, 70 Fla. 260, 70 So. 439, 440 (1915)

[leatherlips]

The following information was taken from a Tax Truth Newsletter.


According to Richard Standring, you can sue the IRS for violating the privacy laws. When the IRS sends out a Notice of Lien or Levy they violate privacy laws by giving out unauthorized tax information to the public. For example, when the IRS files a Notice of Federal Tax Lien in the county recorder's office anybody in the world can go look at it, right? They could see everything on that Notice, including your name, social security number and the dollar amount of what the IRS claims you owe, etc.

However, according to 26 USC 6103, it says that the IRS cannot disclose confidential information to the public unless they have your permission. In the procedural regulations under 26 CFR 301.6103 which relate to Section 6103 of the tax code, it tells how the IRS must have your written permission before they can disclose anything.

For example, one provision says, "Generally, information of a confidential nature can only be disclosed upon a taxpayer's written authorization. IRM-1272 Disclosure of Official Information Handbook contains instructions relating to disclosure matters."

Even the IRS' criminal handbook talks about the same thing, that the IRS must have your permission. It says the agency cannot disclose a person's confidential information to any third party unless that person completes a Form 2848 or Form 8821. For reference, Form 2848 is the IRS' Power of Attorney and Declaration of Representative form.

Form 8821, entitled Tax Information Authorization, is the IRS' designated form for a person to authorize disclosure of their confidential information.

Based upon this knowledge, Mr Standring's organization, V.I.P. uses the strategy of an administrative action whenever the IRS issues a Notice of Lien or Levy. They declare that the IRS is in violation of Section 6103 of the tax code.

There is a court case in Florida, US. vs Reddy, where this was an issue. A doctor sued the U.S. for unauthorized disclosure of information to his clients by an IRS Criminal Investigation Division (CID) agent.

Dr. Reddy won the case. The only thing the IRS disclosed when questioning his clients was his name, identification number and that Dr. Reddy was under investigation. Furthermore, they included a return enveloope addressed to the CID in West Palm Beach, Florida. That was enough to cause a violation of Section 6103.

When you look at the definition of "return information" , investigations and taxpayer identity are included as things the IRS cannot disclose.Yet they did with Dr. Reddy.

The CID asked Dr. Reddy's clients questions of course, but that's not unauthorized disclosure. The unauthorized disclosure happened when they gave information to his clients.

After Dr. Reddy's attorney filed the complaint, the US. attorney immediately capitulated. He admitted that what the IRS did was wrong without any resistance. Dr. Reddy didn't have to fight for it at all. Then the US. attorney put in a Rule 68 or 69 saying that the IRS was willing to settle for $1,000 per 126 clients involved, plus court costs and attorneys fees. That's all there was to it.

With a Notice of Lien or Levy, the IRS always shows your name, ID number, alleged date of assessment, how much you supposedly owe, interest and penalties, etc.; All of that is tax return information that you never authorized them to disclose. If the IRS puts that information in the county records, then potentially everybody could see it. If there are one million people in the county, then that could mean an awful lot of money to you at $1,000 per person.

Its always best to do an administrative procedure first to seek a remedy, then if the IRS doesn't respond, you do a notarial protest to get an administrative judgment from the notary. If they still won't budge after that, then you could go into court where you will have an even stronger position. At that point, your judicial judgment against the IRS will be just a matter of form because you will already have the notary's administrative judgment.

If the IRS filed a Notice of Lien on you in the county recorder's office and you get a default judgment, then what would happen to that Notice of Lien? It would have to disappear form the county records. The county recorder would have to remove it because the default judgment would show that there was no basis for the IRS to disclose your confidential information. Therefore, the IRS had no authority to make that information available to the public since there was no court action.

If there was court action involved, however, then all of your information could and would be public record. Yet, they didn't, so there is nothing that gives the IRS the right to disclose your private information without your consent.

The only issue in question is that you didn't give the IRS the required written authorization to release your private information to the public. Even whem the IRS sends out a Notice of Levy on someone, who do they send it to? They send it to a person's employer or bank, which is the public.

Yet the public doesn't have a right to see your confidential information contained on it without a court action being initiated. Actually, the IRS is supposed to have a court ordered judgment before they can ever seize a person's property via a Notice of Levy.

Bottom line is, there are two ways in which you can go after the IRS when they disclose your confidential information without your consent. You can go after them civilly and/or criminally. 26 USC 7431 shows us that the IRS is subject to civil penalties if they disclose your confidential information without your consent. The criminal penalties are listed under 26 USC 7213 and 18 USC 1905. Then when you look at the Privacy Act it also says that you can go after them civilly and criminally. The criminal penalty is a misdemeanor count and a $5,000 fine for each offense. Therefore, there is nothing that we know of that would prevent a person from pursuing the IRS both civilly and criminally.