Alabama State tax response-help please

[wirlwind]

Jerseee,


When you talk about good faith payment, you are talking about a CPN?& I don't have any idea where to start with that.& I've never done one, and can't seem to find a good copy of one.& I think someone mentioned there is one in CTC3-correct?& I do have that, so I will look it up when I get home tonight from work.& I also don't have a woprking computer at home right now.& I need to listen to the clip that Rushpat put on here.& The computer at work doesn't have sound capabilities.& O will try to get to my father's computer tomorrow and listen to that.


Also, I still haven't filed my UCC1.& Does that make a difference with doing a CPN?& I did find something on family guardian that looks as if it simplifies the process to where maybe even I can understand it. (I printed it off,, but haven't had a chance to read it.)&


To ask for an appeal, I would have to pay the debt before hand if I do it by circuit court by a supersedeas bond(?).& Can I use the CPN with conditions?&


Can I sue them for using the postal service to send a threat of execution?????


Donna


&


&

[rushpat]

Jersee's VOD has a copy of his CPN as part of it (it has the frilly edges). It did come right out of the CTC3. You can use the forms section to make the VOD in pdf format.

The audio clip isn't entirely relevant here. It was showing some things some people said in court and the judges' reactions.

I'm sure if you bring up the use of the mail and the use of the word 'execution', they'll just deny it and say that it meant the execution of the collection phase, or something like that.

However, you can cite mail fraud if the debt they are trying to collect is fraudulent. That's why I put the FDCPA quote in my letter, so that they were put on notice that they were required to follow the FDCPA code and collection activity must stop until FDCPA-qualified verfication of debt was obtained. I'm not sure if they'll back off on this or not, but the more threat from me that I won't roll over the better. It also leaves a paper trail in the event it does end up in litigation. They were warned and warned and were given every chance to do this the legitimate way.

I think nralien sent the VOD to the California group and they acted like they rejected it, but I don't know if he ever received it back, which could be proof that they stole it, adding to the fraud, since it meets the definition of a negotiable instrument under the UCC and 3-603(b) which says that rejection discharges it (also see HJR 192).

Hope that helps.

[wirlwind]

Rushpat,


Thanks again.& I will check out Jerseee's Vod package.& I sometimes have trouble opening some of the stuff with this computer at work.& It won't do zipfiles, but I will try.& If I can't get it then I will go to my fathers and use his tomorrow.& We're in the priocess of getting a new home computer, so it has made soem of this hard.& I'm reading through the FTB thread that I printed off last night now.


Do you have to file your UCC to do the CPN?& I haven't done that yet.


Thanks,


Donna

[wirlwind]

I just read Jerseee's VOD package (don't know how I missed it before).& It does look like I have to fille a UCC1 to use the CPN.& So I am going to proceed with the paperwork for that and then use my certified letter # for my UCC1 number until I can get that, and try the CPN.& Or I could try the letter with the privacy act stuff, and buy some time to get UCC1 filed.& If I have to send them an "I Miss You" card, I am going to send them something by the end of this month, so they can't say I didn't respond.& Any ideas?


Donna

[Ice]

wirlwind,


You don't need a UCC filing in order to make use of the CPN, BoE, or anything else that is based on HJR 192 or the UCC.& There isn't anything that I can find that states you must have this done... if you read the laws and code, you won't find it either.


Ice

&The Department may then proceed with collection by either execution, (not a misspelling-do they really kill people?????) garnishment, or levy as provided by Section 40-29-23 <U>Code of Alabama 1975.</U>
`~~~~~~~~~~~~~~~~~~~~~~


Barron's law dictionary says&that&'execution' means the process&of carrying&into effect a court's judgment, decree, or order. It gives the successful party the fruits of his judgment. &


So they can either get a court judgment (execution), garnishment, or levy.& What I don't understand&is, why aren't they required to get a court judgment on a garnishment and levy?

[rushpat]

They most likely are required. The Alabama statues are probably online like other states.


-=-=-=-=-=-

DISCLAIMER: I know ABSOLUTELY NOTHING of Alabama law... what is shown below is just 15 minutes of quick searching on their webpage...



Okay, did a quick websearch and found the Alabama statutes online:

http://www.legislature.state.al.us/C...975/coatoc.htm

Lots of stuff here, but you can get started. Just quickly perused the tax collection section and came up with this:

Section 40-5-21
Garnishment of delinquent taxpayers ? Procedure.

Such proceedings shall be conducted in the name of the state and before the circuit court.
(Acts 1935, No. 194, p. 256; Code 1940, T. 51, §205.)

Okay, so they must go to court first to get garnishment order... anyone disagree here?

Hmm... just a little more searching and Title 8 (commercial law and consumer protection):

Section 8-1-41
Obligations which cannot be specifically enforced.

The following obligations cannot be specifically enforced:

(1) An obligation to render personal service;

(2) An obligation to employ another in personal service;

(3) An agreement to submit a controversy to arbitration;

(4) An agreement to perform an act which the party has not power lawfully to perform when required to do so;

(5) An agreement to procure the act or consent of the wife of the contracting party or of any other third persons; or

(6) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.
(Code 1923, §6833; Code 1940, T. 9, §55.)

From our other writings on the Privacy Act and the FDCPA and others, do the highlighted sections above ring any bells?

Section 8-9A-7
Remedies of creditors.

(a) In an action for relief against a transfer under this chapter, the remedies available to creditors, subject to the limitations in Section 8-9A-8, include:

(1) Avoidance of the transfer to the extent necessary to satisfy the creditor's claim;

(2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by any applicable provision of any other statute or the Alabama Rules of Civil Procedure;

(3) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure,

a. An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;

b. Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or

c. Any other relief the circumstances may require.

(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.

Also check out sections Section 8-9A-8 and 8-9A-9.

It's bedtime, I'll let others take over, if they think any of this is relevant....

[Ice]

My question is:


What does Section 40-29-23 state?


&

They most likely are required. The Alabama statues are probably online like other states.



I&haven't seen anywhere in the California tax codes that says they have to get a court judgment on a Withholding Order.& It's&just like the Internal Revnue Code.& You won't find it anywhere in IRC&they have to get a court judgment for levies.& It's in their Internal Revenue Manual, but there's no statute or code:& There's case law only:& O'Dell and U.S. vs.&Stevens Equipment.&


You may be able to find case law on the topic of court judgments for wage garnishments, but I doubt you will find it in their code.

[rushpat]

Originally Posted by Ice

My question is:


What does Section 40-29-23 state?


Â*

Hey Ice, how about going back to that big iceberg picture... the pink head doesn't suit you.



Tora, didn't you prove through the California Civil Code that a withholding order without judgment lacked enforcibility?



Here's what I found on the Alabama website for that section Ice was asking about:

Section 40-29-23
Levy and distraint.

(a) Authority of commissioner or delegate. - If any person liable to pay any final assessment of tax neglects or refuses to pay the same or fails to appeal such final assessment within 30 days, it shall be lawful for the commissioner to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) as herein provided or as otherwise provided by law. The commissioner may levy upon all property and rights for property belonging to such person or on which there is a lien as provided in this chapter for the payment of such tax. If the Commissioner of Revenue or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 30-day period provided in this chapter.

(b) Seizure and sale of property. - The term "levy" as used in this chapter includes the power of distraint and seizure by any lawful means. Except as otherwise provided in subdivision (d)(3), a levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Commissioner of Revenue may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible), as prescribed by law. The Department of Revenue may become the purchaser of any property seized by bidding up to the amount of the final assessment and accrued interest plus any costs associated with such sale. The amount of any successful bid by the department, less costs, shall be credited to the amount owing on the unpaid final assessments. If the department shall become the purchaser of any property at such sale, then the department may resell the property by either public auction or public sale under sealed bids.

(c) Successive seizures. - Whenever any property or right to property upon which levy has been made by virtue of subsection (a) is not sufficient to satisfy the claim of the State of Alabama for which levy is made, the Commissioner of Revenue or his delegate may, thereafter, and as often as may be necessary, proceed to levy in like manner upon any other property liable to levy of the person against whom such claim exists, until the amount due from him, together with all expenses, is fully paid.

(d) Requirement of notice before levy.

(1) IN GENERAL. - Levy may be made under subsection (a) upon the salary or wages or other property of any person with respect to any unpaid tax only after the Commissioner of Revenue has notified such person in writing of his intention to make such levy.

(2) THIRTY-DAY REQUIREMENT. - The notice required under subdivision (1) shall be served in any one of the following methods:

a. Given in person;

b. Left at the dwelling or usual place of business of such person; or

c. Sent by certified or registered mail to such person's last known address; no less than 30 days before the day of the levy.

(3) JEOPARDY. - Subdivision (1) shall not apply to a levy if the Commissioner of Revenue has made a finding under the last sentence of subsection (a) that the collection of tax is in jeopardy.

(e) Continuing levy on salary and wages.

(1) EFFECT OF LEVY. - The effect of a levy on salary or wages payable to or received by a taxpayer shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied; provided, however, that no such levy made shall be more than 25 percent of the total wages or salary due the taxpayer.

(2) RELEASE AND NOTICE OF RELEASE. - With respect to a levy described in subdivision (1), the Commissioner of Revenue shall within 10 days release the levy when the liability out of which such levy arose is satisfied and shall promptly notify the person upon whom such levy was made that such levy has been released.

(f) Special rule for levies on banks. - Any financial institution (as defined in Section 40-16-1) shall be allowed 21 days following the date of service to comply with a levy served by or on behalf of the department.

I highlighted some red flags here....